by Anna Schilling
The world economy is currently undergoing an energy transition towards a more low-carbon and climate friendly future. However, such a transition requires a shift from the current energy resources such as carbon, gas and oil to cleaner energy resources. One of these emerging “greener” resources are batteries which are predominantly used in EV vehicles aiming to reduce the need for fuel in the transportation sector (Altiparmak, 2022, p. 2). One of the most important components for batteries is lithium. Lithium is most predominantly used as a resource in ion-batteries for EV vehicles (Altiparmak, 2022, p. 2).
So far, China dominates the market and supply chain for lithium, buying up around 40 % of the amount of raw lithium mined globally in 2021 (Katwala, 2022). Chinese companies have also signed deals governing mining and manufacturing in various lithium-rich countries (Cohen, 2022). Chinese mining initiatives are especially expanding in Africa and certain lithium-rich regions in South America, where environmental and human rights regulations are scarce but untouched lithium depots are vast (Campbell, 2022). Although lithium mining seems to present a route out of fossil fuel reliance, its environmental and humanitarian impacts in local communities are still severe. Lithium extraction can cause soil degradation, biodiversity loss, damages to ecosystems, drastically interfere with local water supplies and result in air contamination (Campbell, 2022). China has invested around $4.2 billion alone in South America in the past few years and continues to develop brine projects in the region (Heredia et al, 2020, p. 222).
Governing Law
Lithium isn’t subject of treaties or international frameworks, even though it counts as a rare mineral (Hailes, 2022, p. 151). The majority of mining projects in the Global South are governed by bilateral investment treaties (BITs) and not subject to treaties under international law. China has adopted BIT’s based on the Western model including fair and equitable treatment, protections against direct and indirect expropriations and investor-state arbitration and has in the process become one of the largest BIT signatories in the world (Gonzalez, 2012, p. 66). Generally speaking, whilst investor-state arbitration is effective at resolving disputes between the host state and the investor, it neglects the rights of communities and individuals who are not part of the arbitration process. In response to this, the International Institute for Sustainable Development (IISD) has drafted a model investment agreement which recognizes measure for environmental and humanitarian protection (Mann et al, 2006).
There are no international treaties that govern lithium mining specifically. However, there are Human Rights treaties that do apply in the case of the Lithium Triangle. Chile, Argentina and Bolivia are all parties to ILO Convention 169, which recognizes and protects the rights of indigenous peoples. Art. 15 of the Convention is especially relevant to lithium mining on indigenous land. According to Art. 15, the rights of the people concerned to the natural resources pertaining to their lands shall be specially safeguarded. This provision includes the rights of indigenous people to participate in the use, management and conservation of the resources pertaining to their land. The peoples concerned are also entitled to possible participation in exploration or exploitation activities and compensation for any damages which they might experience due to such activities. One important body of soft law is the Declaration on the Rights of Indigenous People (UNDRIP) which defines the individual and collective rights of indigenous peoples. Art. 25 UNDRIP outlines the rights of indigenous peoples concerning their traditionally owned or otherwise occupied lands.
The “Lithium Triangle”
The majority of Latina America’s lithium reserves are located in the so-called “Lithium Triangle”, a region of the Andes mountains which includes certain areas of Argentina, Chile and Bolivia (Symington, 2021, p. 235). All three states that compose the Lithium Triangle are each individually Parties to bilateral investment treaties with China. Both the BIT from 1995 and the FTA from 2019 are an example of investment treaties based on Western models that focus solely on the rights of the host and the investor and fail to address the impact these investments have on local communities. The majority of lithium mining projects are developed on Indigenous people’s land (Quijano, 2020, p. 279). The excessive use of water for the lithium brine evaporation process doesn’t only affect the ecosystems in the mining regions but also directly affects the water supply of the local Indigenous communities. In Argentina, indigenous communities in Salta and Jujuy have already taken legal action against mining without prior consent in their traditional territory (Marchegiani, 2022, p. 187).
Indigenous communities in the Salar de Atacama region in Chile have been fighting lithium mining in the region for many years (Lorca et al, 2022, p. 7). The Salar de Atacama region is currently one of the biggest regional suppliers of lithium for the Europe and the US (Lorca et al, 2022, p. 7). The lithium in this region is extracted through the pumping of brine and evaporation method (Lorca et al, 2022, p. 7). Sociedad Química y Miner de Chile (SQM) and Albermarle Corporation have been the two major mining companies in the Salar de Atacama region for the past two decades (Lorca et al, 2022, p. 7). One of the largest extraction sources in the Salar de Atacama is located in the Atacama desert (one of the driest deserts in the world) on indigenous ancestral territory of the Lickanantay ethnic group (Jerez et al, 2021, p. 3). Indigenous people in this region are faced with water injustice due to the over-extraction of water (Jerez et al, 202, p. 3). The governing extraction contracts with the State-owned Production Development Corporation (CORFO) do not explicitly recognize brine as a water resource in legal terms but as a mining property so the water depletion by the means of brine extraction goes unrecognized (Jerez et al, 2021, p. 7). The extraction of the salt flat’s water so far exceeds its recharge capabilities which shows the unsustainability of lithium extraction in the region (Jerez et al, 2021, p. 7). The over-extraction of water has led to a decrease in farming in indigenous communities, mainly affection the harvest of corn, quinoa, vegetable and fruit and also the cultivation of Andean livestock (Jerez et al, 2021, p. 7).
Sustainability of lithium mining
The case of lithium mining in the Lithium Triangle is an example of how the chase for green energy and electromobility in the Global North affects the Global South. The implementation of green policies established in the Paris Agreement have led to an increase of extraction projects in the Global South and gravely impacted territories traditionally inhabited by indigenous communities. Arguably, lithium mining in the Lithium Triangle and specifically in the Salar de Atacama constitutes a form of exploitation with colonial features (Jerez et al, 2021, p. 2). The exploitation of the resources of indigenous communities exploits the resources of the people who have traditionally inhabited the land and left to cope with the mining companies and the consequences of their mining projects on their own (Jerez et al, 2021, p. 2).
Additionally, the unsustainability of lithium mining in the regions the lithium is being extracted calls into question the alleged sustainability of lithium as a new green energy resource itself. While lithium batteries used in electric vehicles may lower carbon emissions and the use of fossil fuels, it nevertheless causes environmental damages in the regions it is mined. However, these environmental impacts mainly affect the local communities in the mining regions in South America and Africa. Chinese and other global investors can use these resources in seemingly environmentally friendly batteries and cars but the supply chain itself is not as sustainable as the lithium products may suggest. China as a growing „super power“ in the field of lithium mining is fueling this conflict by continuously expanding its influence in the mining regions in the Global South.
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