Resource Security Through External Trade and Investment – A Human Rights Challenge for the EU

3.1. Bilateral instruments

3.1.2. ‘Soft’ law instruments

In addition to the ‘hard’ law instruments through which resource security is pursued, the Union has adopted soft law instruments which place resource security as their main objective.⁴⁵ In most cases, these take the form of a memoranda of understanding (MoU) between the EU, represented by the European Commission, and a resource-rich third country or an overseas territory of the EU (OCT).⁴⁶ Commonly referred to as ‘strategic raw materials partnerships’, they are defined in article 2(63) CRMA as:

Strategic partnerships provide a firm ground for the operation of raw materials projects in third countries as they reduce the regulatory risk for investors and their dependence on political support by the government of the host state.⁴⁷ One of their main functions is to strengthen existing bilateral trade and investment agreements between the EU and third countries/OCTs. To give some examples, the EU-Canada raw materials strategic partnership is established ‘within the mandate’ of the EU-Canada CETA;⁴⁸ the EU-Kazakhstan partnership builds upon their Enhanced Partnership and Cooperation Agreement;⁴⁹ while the EU-Ukraine partnership is based on the EU-Ukraine Association Agreement.⁵⁰

At the time of writing, the EU has established a total of 14 raw materials partnerships.⁵¹ Unlike the hard law instruments mentioned previously, these are not published in the Official Journal of the EU. Instead, the European Commission maintains a list of all concluded partnerships on its website, accompanied by the full texts of the agreements.⁵² While the legal implications of these agreements will be addressed below in Section 4, the difference in their publication formalities already indicates that, under EU law, they do not have the same legal effects as binding international agreements.⁵³

In parallel to the EU, Member States negotiate their own raw materials partnerships with third countries, having an obligation to inform the European Commission when the scope of their bilateral cooperation ‘includes critical raw materials value chain’.⁵⁴ The Canadian government, for example, has negotiated partnerships with a number of EU countries.⁵⁵

Alongside raw materials strategic partnerships, the EU has sought to develop its raw materials diplomacy through the so-called Critical Raw Materials Club that brings together ‘consuming and resource-rich countries to promote the secure and sustainable supply’ of raw materials.⁵⁶ In April 2024, the Union also joined the Minerals Security Partnership (MSP) led by the United States, which constitutes a platform of cooperation between resource-rich countries and countries with ‘high demand’ for raw materials.⁵⁷ It is noteworthy that the MSP is open to participation from any country that commits to its guiding principles and, more specifically:

As for the MSP projects, economic operators must demonstrate inter alia responsible stewardship of the natural environment, ensure land acquisition through consultative and participatory processes and meaningful engagement and transparent communication with affected communities. There is also a requirement that they receive accreditation based on ‘internationally recognised’ environmental and social governance standards.⁵⁹ Although the MSP was established under the Biden administration, it has remained intact notwithstanding the election of Donald Trump and his declared intention to reverse the policies of his predecessor.⁶⁰

Finally, special emphasis should be placed on the so-called ‘clean trade and investment partnerships’ (CTIP) that the European Commission has announced for the first time in its Clean Industrial Deal strategy published in February 2025.⁶¹ Concluded as non-binding agreements (MoUs), they are designed to complement rather than substitute binding FTAs and investment agreements with third countries, CTIPs aim to provide ‘a faster, more flexible, and more targeted approach, tailored to the concrete business interests of the EU and its partners’ and to better align the EU’s external action with its (internal) industrial policy objectives.⁶² In March of the same year, the EU announced the negotiation of a CTIP with South Africa to operate under the umbrella of the EU-Southern African Economic Partnership Agreement.⁶³ Although not focusing on raw materials, the Commission explicitly refers to them as a tool for better managing strategic dependencies and securing access to raw materials.⁶⁴

3.2. Unilateral instruments

Turning to the EU’s unilateral resource security instruments, two stand out: the recently adopted CRMA and the 2019 Foreign Direct Investment (FDI) Screening Regulation. Although not a ‘pure’ trade and investment instrument given its internal market legal basis,⁶⁵ the CRMA is closely connected to the operationalisation of the EU trade and investment legal instruments analysed above. More specifically, the Act sets up a licensing framework for ‘strategic’ raw materials projects relating to extraction, processing and recycling that meaningfully contribute to the Union’s access to a ‘secure and sustainable supply of critical raw materials’ and meet specific eligibility criteria and conditions listed in article 7 and annex III.⁶⁶

A project is recognised as strategic by the European Commission after taking into account the opinion of the European Critical Raw Materials Board (ECRMB) established thereunder.⁶⁷ Following this, a permit-granting process takes place in the host state.⁶⁸ The host of strategic projects can be an EU Member State, a third country or an OCT. This effectively means that the Union-wide licensing framework under the CRMA functionally extends beyond EU borders.

The CRMA also contains specific provisions on strategic partnerships. In particular, within the auspices of the ECRMB, the implementation of existing partnerships and the negotiation of new ones is discussed. These discussions cover their ‘consistency and potential synergies with Member States’ bilateral cooperation’,⁶⁹ without affecting the Council’s powers under article 218 TFEU. Put differently, the Council retains its right to authorise the opening of treaty negotiations by the European Commission, including the right to ‘address directives to the negotiator and designate a special committee in consultation with which the negotiations must be conducted’.⁷⁰ In 2023, for example, the European Commission received authorisation from the Council to negotiate a binding strategic partnership with the United States on raw materials, which has not yet been signed.⁷¹ Even so, although the CRMA does not make this explicit – nor does the Commission’s proposal provide an indication – it appears that the adoption of non-binding agreements on raw materials has now become the default.

In contrast with the CRMA, the FDI Screening Regulation is a unilateral CCP instrument that contributes indirectly to the EU’s resource security objective as it requires EU Member States to screen inward investments in order to protect ‘critical European assets against investment that would be detrimental to legitimate interests of the Union or its Member States’.⁷² The Regulation provides a non-exhaustive list of sensitive sectors, among which we find the ‘supply of critical inputs, including energy or raw materials’.⁷³ France, for example, screens the likely impact of foreign direct investments on infrastructure, goods or essential services concerning the extraction, processing and recycling of critical raw materials.⁷⁴ If the Commission’s 2024 proposal for a revised FDI Screening Regulation goes ahead, there will be mandatory screening of investments involving raw materials on the basis that they ‘may affect security or public order in more than one Member State or in the Union as a whole through an Union target, which does not participate in or receive funds from a project or programme of Union interest’.⁷⁵

4.1. Protecting human rights through political accountability

EU trade and investment policy is a highly politicised area.⁷⁷ Particularly since the backlash against the Transatlantic Trade and Investment Partnership (TTIP) with the United States, civil society has become actively engaged in trade and investment policy matters, focusing most of its criticism on the lack of sufficient procedural and substantive safeguards for the EU’s regulatory space.⁷⁸ A detailed account of the EU’s reaction to the breakdown of the TTIP negotiations is beyond the scope of this article.⁷⁹ Suffice it here to note that, having taken into account civil society concerns and a number of European Parliament resolutions, the European Commission has updated its trade policy in 2015 – and has continued to do so ever since – with a view to better integrating non-trade and investment objectives in its legal instruments as well as strengthening their enforceability.⁸⁰ In tandem, the quest for raw materials has ignited the public debate within the EU, and at the global level, about whether resource-rich countries get out with a ‘fair’ deal or whether their quest constitutes a ‘resource grab’.⁸¹ This has also brought back to the surface criticism against the EU’s colonial past,⁸² especially considering that former colonies of EU Member States like Greenland are key suppliers of raw materials to the EU.⁸³

To a greater or lesser degree, the Union’s resource security legal instruments outlined above provide several avenues for political accountability. Most notably, the European Parliament has a veto over the signing and conclusion of binding EU trade and investment agreements.⁸⁴ For example, in 2020, the European Parliament openly declared its intention to veto the signing of the EU-Mercosur trade agreement if no legal safeguards on biodiversity conservation were included.⁸⁵ Pursuant to article 218(10) TFEU, the European Parliament also has a right to be informed by the Commission at all stages of the treaty-making process that can be enforced before the ECJ. As the ECJ has held in Mauritius, parliamentary treaty scrutiny is an ‘expression of the democratic principles on which the European Union is founded’, namely that the ‘people should participate in the exercise of power through the intermediary of a representative assembly’.⁸⁶ This comes in addition to democratic scrutiny at the national level since EU Member States are required to ratify these agreements before they can enter into force, to the extent that they are negotiated and concluded as mixed. However, given that mixity is increasingly supplanted by EU-only action – more specifically, the EU tends to conclude interim ‘EU-only’ FTAs with third countries to be later replaced by EU mixed agreements – this layer of political accountability is quietly slipping away.⁸⁷

In contrast, strategic partnerships on raw materials and CTIPs provide for less democratic involvement at the EU level. This is because they are adopted outside the procedural framework of article 218 TFEU, thus precluding the European Parliament from having a say during the process.⁸⁸ Furthermore, considering that domestic formalities (eg, referenda) for this type of ‘informal’ treaty-making are rare, if not absent, political accountability at the national level is significantly limited. Expressing its concerns over the lack of effective scrutiny in the context of the EU’s raw materials partnership with the Democratic Republic of Congo, the European Parliament stressed the need to increase ‘parliamentary oversight and civil society involvement in the preparation, signing and implementation of raw material MoUs and roadmaps’.⁸⁹ It must be said, though, that the ECJ has recognised that the Council gets to have a say, from the authorisation of the negotiations to the signing and conclusion of the non-binding agreement.⁹⁰

While the European Parliament is not formally involved in the ‘making’ of strategic partnerships, the CRMA provides it with certain ‘privileges’. First, it always participates as an observer in the ECRMB’s discussions. These discussions cover, among other things, the potential for new partnerships and the implementation of existing ones.⁹¹ Second, the Commission has an obligation to inform the European Parliament about the outcome of the ECRMB’s discussions.⁹² Still though, the CRMA safeguards are not commensurate with a veto right, meaning that the European Parliament cannot block the adoption of a strategic partnership or the licensing of strategic project under the CRMA. Effectively, then, a key weapon of parliamentary scrutiny is the submission of questions by members of the European Parliament to the European Commission in line with its Rules of Procedure.⁹³ Relevantly, the same day that the latter published its long-awaited list of strategic projects on its website, a question regarding the selection process was tabled.⁹⁴

Although the CRMA guarantees observer status to the European Parliament in the ECRMB, civil society can only take part in the discussions within the ECRMB if invited by its Chair.⁹⁵ Of particular note is also that indigenous communities are not explicitly mentioned among the stakeholders that may be invited by the Chair of the ECRMB in its discussions. In any event, they are not entitled to influence the Board’s opinion on whether the applicants of strategic projects meet the necessary criteria under the CRMA, let alone block the licensing of a project by the European Commission.⁹⁶

Notwithstanding these, there are certain opportunities for local residents to get involved in the licensing of strategic raw materials projects at the national level given that it is the host state, not the Commission, that ultimately decides whether the operation of strategic projects will actually go ahead.⁹⁷ Understandably, where a strategic project is undertaken outside EU borders, the level of political accountability is entirely left to the host state. For strategic projects under the CRMA, a maximum duration cap for public consultations taking place within an EU Member State is set therein.⁹⁸ As explained in the Act’s recitals, this serves to speed up the licensing process and reduce the regulatory risks associated with it, which clearly favours the economic operators of raw materials projects, not those that may be affected by their operation. In contrast, given that Member States are not prevented from licensing raw materials projects that are outside of the scope of the CRMA, public consultations are mandatory only to the extent that this is required by other Union legislation or national law.⁹⁹

Particular attention must be given to strategic projects licensed under the CRMA despite affecting the livelihoods of indigenous peoples. While their right of ‘free, prior and informed’ consent (FPIC) – that is to say, the right of indigenous peoples to be consulted prior to the operation of a project within their lands – is recognised in the 169 International Labour Organization (ILO) Convention, the EU’s trade and investment legal instruments fall short of effectively safeguarding this.¹⁰⁰ The EU-Chile Interim Trade Agreement, for instance, merely affirms the ‘importance of respecting, preserving and maintaining knowledge and practices of indigenous and local communities’.¹⁰¹ Because the EU cannot itself become a party to ILO Convention No 169, which is open only to states, and because most Member States have not ratified it, the Convention is legally binding only on those Member States that are parties to it. Thus, while the European Parliament has urged national governments to take steps towards the full implementation of the 169 ILO Convention, the ratification process is still ongoing for many.¹⁰² Consequently, whether FPIC will ultimately be obtained in the host state remains uncertain.

The European Parliament has strongly emphasised the need for EU economic operators to uphold the FPIC requirement in the past. In 2016, it condemned the continuing operation of a hydraulic dam project in Honduras by an EU-based company that had failed to consult the affected indigenous communities.¹⁰³ Specifically, it urged the European Commission and the European External Action Service ‘not [to] promote or permit development projects unless they meet the requirement for prior, free and informed consultation with indigenous communities, ensure meaningful consultation of all affected communities and have strong human rights, labour rights and environmental safeguards in place’.¹⁰⁴ In the context of the CRMA, whether FPIC will ultimately be obtained in the host state remains uncertain, however, as the Commission’s decision rests on a commitment that is expected to be fulfilled in the future.¹⁰⁵ What is certain is that granting recognition status to three raw materials projects on Sámi lands – an indigenous community – in March 2025 has raised concerns about Sweden’s (host state) compliance with the FPIC requirement.¹⁰⁶

Arguably, the CRMA moves in the direction of compliance with the FPIC requirement to the extent that operators of raw materials projects applying for recognition are compelled to submit a plan to the Commission that includes measures dedicated to meaningful consultations, measures for fair compensation, where appropriate, and measures to address the outcome of consultations.¹⁰⁷ For projects outside the EU, operators are also bound to ensure that their projects will comply with OECD’s Due Diligence Guidance for Meaningful Stakeholder Engagement in the Extractive Sector, ‘including where referring to the principles set out in the United Nations Declaration on the Rights of Indigenous Peoples’.¹⁰⁸ The plan, however, commits operators to conduct consultations after the Commission recognises a project as strategic, and as such, does not guarantee that FPIC will actually be obtained.¹⁰⁹ The recognition of three raw materials projects on Sámi lands in March 2025 has been criticised precisely on these grounds.¹¹⁰

4.2. Protecting human rights through legal accountability

After discussing both the advantages and limitations of political accountability in the EU’s resource security instruments, attention now turns to legal accountability. The analysis below shows the extent to which human rights breaches linked to raw materials projects can be subject to judicial review at the international, EU or national level. Although it is generally assumed that non-binding international agreements entail no legal accountability, it is argued that strategic partnerships on raw materials generate legal effects that give rise to enforceable obligations.

Mechanisms of legal accountability are both preventative and remedial, triggered, respectively, before and after a breach of human rights has occurred. To start with the EU’s bilateral resource security instruments, a key preventative tool at its disposal is assessing the human rights impacts of EU trade and investment agreements prior to their adoption. Although the European Commission has established the practice of undertaking sustainability impact assessments (SIA) since 1999,¹¹¹ the extent to which human rights concerns form part thereof has been debated.¹¹² Arguably, where a SIA identifies adverse human rights impacts but treaty negotiations nonetheless proceed, an action for annulment could be filed against the Council decision approving the signing and conclusion of the agreement due to failure to ensure consistency with fundamental rights protection as an external policy objective of the EU.

The European Ombudsman has taken the view that, after the Lisbon Treaty entered into force, the conduct of human rights impact assessments at the negotiating stage is implicitly required by articles 3(5) and 21 TEU. On the basis that the latter set out the EU’s obligation to pursue human rights protection in its ‘relations with the wider world’, the SIA is an integral part of the treaty-making process. Not only that, but the obligation to conduct a SIA covering human rights extends, according to the European Ombudsman, to non-binding EU international agreements.¹¹³ By contrast, for the Commission, MoUs and strategic partnerships are not subject to this requirement on the grounds that they do not give rise to legally binding obligations.¹¹⁴ Specifically, since they are not concluded in accordance with article 218 TFEU, which sets out the procedural framework of Union treaty-making, they are not assimilated to binding international agreements which are binding on both EU institutions and Member States within the meaning of article 216(2) TFEU. While the ECJ does distinguish between binding and non-binding agreements, its case law nonetheless suggests a horizontal obligation to comply with articles 3(5) and 21 TEU on the part of the EU, thereby reinforcing the position taken by the European Ombudsman mentioned above.¹¹⁵ Particularly in the aftermath of its landmark Front Polisario II judgment, which was delivered in 2024, a failure to assess their human rights impacts can be deemed contrary to primary EU law.¹¹⁶ In that judgment, the Court of Justice held that the discretion of the Council to sign and conclude an international agreement is not unlimited but circumscribed by its obligation to observe international (human rights) law and, more specifically, the principle of self-determination.¹¹⁷

Another technique for minimising violations of human rights is the insertion of substantive safeguards into EU FTAs which the treaty parties are bound to observe. In most cases, human rights provisions are found in TSD chapters, eg a right-to-regulate clause reaffirming the parties’ right to legislate for public policy objectives; a clause committing them not to lower their regulatory standards; and explicit references to multilateral agreements relating to human rights, notably the ILO Conventions. More recent agreements further incorporate corporate social responsibility provisions, compelling the parties to adopt due diligence measures domestically, notably to conduct environmental impact assessments prior to the authorisation of raw materials projects.¹¹⁸ Although this does not, by itself, guarantee that the host state will exercise its right to regulate, it suggests that a treaty party can maintain a regulatory framework that does not provide high standards of human rights protection. The agreements also contain an obligation to improve domestic laws and regulations.¹¹⁹ That said, considering the framing of said obligation (‘shall strive to’), the treaty parties are still left with considerable leeway at the implementation stage.

Furthermore, one indirect approach to safeguarding human rights is to restrict the range of investment protection standards addressed in a dedicated chapter of EU free trade agreements or in EU IPAs entered into with the same country.¹²⁰ While there are many drafting variations, there is an ongoing trend to revise the content of investment agreements with a view to recalibrating the rights of foreign investors with the host states’ regulatory space, including the right to adopt human-rights-related measures.¹²¹ That is because, under ‘old-generation’ investment agreements, foreign investors have successfully argued that modifications to the host state’s legal framework breached their rights and, in most cases, the standards of fair and equitable and indirect expropriation.¹²² Considering the risks of litigation, and in line with its evolving investment protection policy, the EU – and its Member States on their bilateral agreements with third countries – have added several treaty safeguards to their post-Lisbon agreements.¹²³ In addition, the EU has sought to recalibrate the content of investment protection standards through joint declarations, signed in parallel with or after the signing of an EU trade and investment agreement with a third country.¹²⁴

In the event of an alleged human rights breach in the host state relating to the operation of a mine, the question is whether and who can seek recourse to the dispute settlement mechanism included under the EU FTA or EU IPA. Consider the following hypothetical: Chile, which has ratified the 169 ILO Convention, licenses a mine in its territory despite the lack of FPIC. In principle, the EU could trigger the TSD dispute settlement mechanism against Chile in accordance with article 26.20 of the EU-Chile Interim Trade Agreement on the basis that Chile’s conduct constitutes a violation of article 26.16(3). Pursuant to this provision, ‘each Party shall effectively implement the ILO Conventions ratified by Member States and Chile respectively’. In light of the Korea-Labour Commitments dispute,¹²⁵ the EU would not need to prove that trade or investment has been affected as a result of the breach committed by Chile.¹²⁶ In other words, a breach of the 169 ILO Convention would suffice. Supposing that article 26.20 were activated, the first step would be the opening of consultations between the parties; should these fail, a panel of experts would be appointed to resolve the dispute. In the event that the final report issued by the latter found Chile in breach of its obligations, ‘appropriate measures’ would need to be implemented in discussion with the EU and in accordance with the procedure laid down in the agreement.¹²⁷

The above scenario differs from when a treaty party has breached its trade and investment obligations but relies on the TSD chapter to justify its breach. In the latter case, the main dispute settlement mechanism as opposed to the abovementioned TSD-specific mechanism would be triggered.¹²⁸ In a similar dispute, the panel in Ukraine-Wood Export Ban conditioned the interpretative value of the TSD chapter under the EU-Ukraine Association Agreement on their effects on trade, dismissing their status as self-standing obligations.¹²⁹ A detailed analysis of the panel’s reasoning and the differences with the Korea-Labour Commitments panel report falls out of the scope of this article.¹³⁰ What these precedents underscore, however, is a more fundamental problem: having separate dispute settlement mechanisms for TSD and non-TSD breaches creates confusion as to the correct legal basis of a dispute with significant implications for legal accountability.¹³¹ To name just one, non-compliance with the final report of the TSD-specific mechanism is typically not sanctioned. The EU-New Zealand FTA is the only FTA to provide, for both dispute settlement mechanisms, trade sanctions in the event of non-compliance with the panels’ report.¹³² Whether sanctions are appropriate for this type of violations is another question that is open to debate.¹³³

For the most part, the EU-Angola SIFA provides the same accountability mechanisms as EU FTAs, ie it is subject to a SIA before its adoption and contains human rights references akin to those included in the TSD chapters of EU trade and investment agreements. In more detail, commitments to observe international law obligations, including the protection of labour rights and gender equality, to promote ‘the uptake by enterprises and investors of corporate social responsibility or responsible business practices’ and to ‘facilitate and encourage’ investments ‘in a way that is consistent’ with the conservation and sustainable management of forests and marine ecosystems and, more broadly, with ‘sustainable production and consumption, in environmental goods and services, and investment of relevance for climate change mitigation and adaptation’ are included.¹³⁴ An explicit reference to raw materials is found in article 30(4), according to which ‘an effective labour inspection system for all economic sectors, including for agriculture and mining activities’ shall be maintained by both parties.

Similarly to EU FTAs, inter-state arbitration is available but, unlike FTAs, the EU-Angola SIFA does not subject compliance of its TSD-style provisions to a specialised dispute settlement mechanism.¹³⁵ As article 2 stipulates, the agreement does not modify or create new rules on investor protection and investor-state dispute settlement. That said, disputes between the EU and Angola regarding the application of the agreement are first resolved through consultations and, as a last resort, through inter-party arbitration.¹³⁶

Compared to binding EU trade and investment agreements, strategic partnerships on raw materials provide a lower degree of legal accountability. The main reason for this is that all strategic partnerships explicitly provide that their provisions are ‘not intended to create rights or obligations under international or domestic law’.¹³⁷ However, while such provisions indicate that the partnerships that the EU has so far concluded do not introduce new rights or obligations under international law, they do not erase the parties’ existing international commitments. To elaborate, a closer examination of the content of strategic partnerships reveals that they all contain cross-references to the parties’ binding human rights commitments under existing trade and investment agreements. For example, the EU-Serbia strategic partnership commits the parties to conduct the partnership ‘fully in accordance with’ the provisions of the Stabilisation and Association Agreement (SAA) and to respect ‘the principles of transparency, predictability, and non-discrimination’.¹³⁸ What can be inferred from this is that non-compliance with existing obligations included in binding agreements between the EU and the same third country – in this example, the EU-Serbia SAA – can have spill-over effects. In particular, non-compliance with existing human rights obligations can lead to a suspension of the partnership through the ‘essential elements’ clauses, also known as human rights or democratic clauses.¹³⁹

A drastic mechanism for sanctioning human rights violations in the host state, ‘essential elements’ clauses are often included in EU framework and association agreements, which, as their title suggests, provide the basis for broad cooperation between the EU and third countries that goes beyond trade and investment. For example, article 763 of the EU-UK Trade and Cooperation agreement commits the parties to respect and uphold human rights and democratic principles in their territory.¹⁴⁰ What makes these clauses stand out is that, unlike non-compliance with the TSD chapters and relevant provisions in the EU-Angola SIFA, when human rights violations are committed by one party, the other party can trigger the essential elements clause and, ultimately, request to suspend the application of the agreement as well as other agreements that form part of a ‘common institutional framework’ of cooperation. As Bartels notes, most framework agreements make this explicit.¹⁴¹ Where this is not the case, a linkage clause is provided in that other agreement. Although there are variations in existing treaty practice, the essential elements clause can, in principle, lead to the suspension of the application of a raw materials partnership as a last resort. Beyond suspension, if an essential elements clause is breached, suspension of development aid and cooperation is a classic ‘appropriate measure’ that is adopted following consultations and political dialogue between the parties; this was the case against Liberia as a party to the Cotonou Agreement.¹⁴²

Despite repeated calls from the European Parliament to trigger these clauses in response to human rights violations in third countries,¹⁴³ essential elements clauses have been invoked only in a limited number of cases. More recently, there have been calls to suspend the EU-Israel association agreement due to the rapidly deteriorating humanitarian situation in Gaza in breach of article 2 of the agreement.¹⁴⁴

Another recent example concerns Rwanda with whom the EU has adopted a raw materials partnership. In February 2025, the European Parliament highlighted that Rwanda failed to observe the commitments under the MoU on raw materials concluded by the EU, namely to promote ‘due diligence and traceability, cooperation in fighting against the illegal trafficking of raw materials, and alignment with international environmental, social and governance standards’.¹⁴⁵ As a result, it urged the Council to ‘immediately suspend the EU-Rwanda MoU on sustainable raw materials value chains until Rwanda proves that it is ceasing its interference and its exportation of minerals mined from M23-controlled areas’.¹⁴⁶ Although not mentioned in the Parliament’s resolution, the EU’s partnership agreement with the Organisation of African, Caribbean and Pacific States (OACPS),¹⁴⁷ to which Rwanda is a party, could also be suspended. That is because, pursuant to article 9(7) of the latter, ‘respect for human rights, democratic principles and the rule of law shall underpin their domestic and international policies and constitute an essential element’, while under article 101(7), human rights breaches constitute a ‘case of special urgency’ that can lead to suspension. Given that the implementation of the MoU falls within the institutional framework of the EU-OACPS Agreement, and that the MoU expressly reaffirms the parties’ commitment to their international obligations, the suspension of both the strategic partnership and the EU-OACPS Agreement could be invoked on the grounds of Rwanda’s human rights violations.¹⁴⁸

As regards the adoption of ‘appropriate measures’, which activates an institutional framework under the agreement – typically a treaty-based body tasked to decide on this matter – a Council decision is required on the part of the EU in line with article 218(9) TFEU. Qualified majority is the norm, but in certain cases, unanimity is required,¹⁴⁹ eg to suspend an association agreement. It is also noteworthy that, in some cases, the agreements themselves require unanimity when it comes to suspension, posing additional difficulty in achieving consensus. Notable examples are the EU-Canada, EU-Australia and EU-New Zealand agreements.¹⁵⁰

Beyond the legal accountability that the EU and its treaty partners may incur under the EU’s resource security instruments, can economic operators be sanctioned for breaching human rights? Since none of the trade and investment instruments concluded by the EU imposes legally binding obligations on them, it all depends on the host state’s accountability mechanisms.

As far as the EU is concerned, due diligence obligations, including respect for human rights, burden economic operators active in the raw materials sector. To start with, a set of obligations is laid down in the Conflict Minerals Regulation and the Corporate Sustainability Due Diligence Directive (CSDDD).¹⁵¹ It must be said, though, that their scope of application is limited.¹⁵² For instance, the Conflict Minerals Regulation covers only a few raw materials that are listed as ‘critical’ under the CRMA, namely nickel, copper, aluminium/bauxite and manganese, and only when these are sourced from conflict areas outside the EU.¹⁵³ As for the CSDDD, although it applies in principle to upstream activities, including raw materials extraction,¹⁵⁴ its application is subject to size and turnover thresholds.¹⁵⁵

Looking at these thresholds, the scope of application becomes even narrower. In essence, the Directive applies to large EU companies with more than 1,000 employees and a net worldwide turnover exceeding 450 million euros, large non-EU companies with more than 1,000 employees, as well as companies that do not individually meet these thresholds but are part of a group whose ultimate parent company does.¹⁵⁶ This still leaves outside its scope a significant number of large companies, as well as small and medium-sized enterprises. Notably, an examination of the list of project promoters approved by the Commission reveals that not all companies meet these thresholds.¹⁵⁷ If Omnibus I is adopted – the text has been provisionally agreed in December 2025 – the scope of application of the CSDDD will be further narrowed.¹⁵⁸ Nevertheless, even if operators of CRM projects fall outside the scope of the CSDDD, undertakings elsewhere in their supply chains that are covered by the Directive are required ‘to conduct a scoping exercise, based solely on reasonably available information, to identify general areas across their own operations, those of their subsidiaries and, where related to their chains of activities, those of their business partners where adverse [environmental and human rights] impacts are most likely to occur’.¹⁵⁹ Directly or indirectly, therefore, the CSDDD is likely to affect the operation of CRM projects within the EU after being transposed into domestic law by July 2029.¹⁶⁰

To the extent that economic operators apply for recognition of their projects as strategic under the CRMA, specific due diligence obligations apply. In particular, article 6(1)(c) of the Act stipulates that projects acquire strategic status only if they ‘would be implemented sustainably’, ie they ensure the ‘monitoring, prevention and minimisation of environmental impacts, [and] the prevention and minimisation of socially adverse impacts through the use of socially responsible practices including respect for human rights, indigenous peoples and labour rights’.¹⁶¹ Annex III of the CRMA lays down the ‘elements’ and ‘evidence’ for compliance with the sustainability requirement. Without entering into much detail, sustainability standards apply differently depending on the type of project – extraction, processing or recycling – and its location, ie whether it will operate within or outside the EU. In a nutshell, EU-based projects must comply with ‘relevant Union law or national law’, whereas projects outside the EU are required to adhere to ‘applicable national law where that national law provides sufficient assurance of compliance with the [sustainability] criterion or aspects of it’, as well as to abide by specific international soft law instruments listed in annex III.¹⁶²

In this regard, what can be considered as a remedial mechanism of human rights breaches is the European Commission’s power to withdraw the strategic status of a project if it is no longer sustainable, or if it is found that it had been incorrectly classified as sustainable in the first place. In such case, the project promoter ‘shall lose all rights connected to that status’.¹⁶³ Although this is not specified in the CRMA, it can be argued that the Member State hosting the relevant project can no longer consider it as having ‘priority status’ domestically which presupposes, among others, a fast-track licensing process.¹⁶⁴ Be that as it may, even if the Commission concludes that a project is unsustainable, it has the discretion (‘may’), not the obligation, to withdraw its status as strategic, which in turn shows that economic operators may escape accountability for human rights breaches.¹⁶⁵

The foregoing due diligence obligations complement domestic obligations that may be in place for economic operators in the host state. French companies, for example, are required to submit a ‘vigilance plan’ documenting the measures taken to prevent environmental and human rights harm.¹⁶⁶ Beyond all these, one must not overlook that raw materials projects receiving EU funding are required to respect the human rights standards set out in their financing agreements. Illustratively, the European Bank for Reconstruction and Development (EBRD) has set extensive environmental and social requirements that project operators are required to meet over the period of their investment. These requirements are incorporated into the financing agreements concluded between them and the EBRD.¹⁶⁷

As far as those affected by economic operators of raw materials projects are concerned, the EU’s resource security instruments establish certain procedural safeguards. Notably, through the Single Entry Point (SEP) set up by the European Commission, complaints relating to the implementation of EU trade and investment agreements, including TSD chapters, can be filed. Managed by the Chief Enforcement Officer, SEP receives complaints from EU citizens and, provided that they are based in the EU, by companies, trade unions, labour organisations and NGOs.¹⁶⁸ Additionally, domestic advisory groups (DAGs) established under EU trade and investment agreements, are eligible for lodging a complaint,¹⁶⁹ provided that human rights issues fall within their mandate.¹⁷⁰ One of SEP’s shortcomings is that it is not available to non-EU citizens, which feeds into the ongoing debate as to whether SEP’s scope should be extended, or whether a specific human-rights complaints mechanism that would also cover strategic partnerships should be established instead.¹⁷¹

Beyond filing a complaint which, in any event, does not compensate for the damage incurred, affected individuals have access to the investor-state dispute settlement mechanism (ISDS) of EU IPAs and EU FTAs containing investment protection provisions.¹⁷² Designed to provide procedural protection to foreign investors exclusively, ISDS is triggered against the host state (not vice versa). A typical claim involves a request for compensation due to the adverse effects that domestic legislation has had on a foreign investment, even if pursued for the public interest, eg to protect human rights. Instead, ISDS cannot be triggered by those whose rights of life and health have been breached. Depending on the tribunals’ rules of procedure, they could file an amicus curiae.¹⁷³ Despite calls for increasing the levels of third-party participation in ISDS proceedings as part of the broader reform of the investment treaty system, progress has been minimal so far.¹⁷⁴

Consequently, the main accountability fora for those affected are provided by the host state of raw materials projects. Since locus standi requirements differ, the extent to which individuals and NGOs can receive judicial protection varies. A particular note deserves to be made about the litigation avenues opened under the CRMA. Given that the licensing process takes place at the national level, national courts are tasked to adjudicate claims related to strategic projects. Interestingly, article 9(8) of the Act prescribes that project promoters shall have ‘easy access to information on and procedures for the settlement of disputes concerning the permit-granting process for critical raw materials projects’, but similar safeguards are not provided to affected individuals, notably those living in the proximity.

Fundamentally, the host state of raw materials projects is responsible for providing access to justice opportunities when human rights allegations are made. At the same time, as the European Commission issues a binding decision on the recognition of projects as ‘strategic’ in the exercise of its implementing powers under the CRMA, can individuals seek relief against the EU for its share in the harm caused by a mine? Individuals can, in principle, file an action for damages invoking the EU’s non-contractual liability,¹⁷⁵ but the regime of joint (or shared, as is often referred to) liability is ambiguous under EU law.¹⁷⁶ In light of the ECJ’s case law, unlawful conduct, actual damage and a causal link are the basic requirements to be fulfilled. Although, as recently affirmed by the General Court, even non-binding acts have the potential to give rise to liability,¹⁷⁷ the causality criterion remains strict. Relevantly, a less restrictive interpretation is provided by the Court of Justice, which, in Kampffmeyer, a 1967 ruling, upheld an action for damages against the Commission for the way it had exercised its supervisory powers under secondary EU law. In its view, when approving a national measure, the Commission ‘is required in respect of each [measure] notified to it to conduct as exhaustive an examination as that required to be made by the Member States and bears independent responsibility’ for its failure to do so.¹⁷⁸ By analogy, the Commission’s recognition of a project as strategic despite not meeting the sustainability criterion within the meaning of article 6(1)(c) and annex III of the CRMA could give rise to its liability alongside the host state that is responsible for the licensing process.

Apart from an action for damages, individuals and NGOs could seek the annulment of the Commission’s recognition decisions through actions for annulment. While this scenario remains hypothetical to date, individuals living in the proximity of a mine allege that a project impacts negatively their right to health and life, rights protected by the European Charter of Fundamental Rights and the European Convention on Human Rights,¹⁷⁹ could pursue this avenue, albeit not compensatory in nature. In accordance with article 263(1) TFEU, acts of the Commission ‘other than recommendations and opinions’ are reviewable before the CJEU, thus including implementing decisions binding on their addressees (ie project promoters).¹⁸⁰ In light of the CJEU’s interpretation of article 263(4) TFEU, the conditions of legal standing are unlikely to be satisfied.¹⁸¹ It is, however, possible to reach the CJEU indirectly if litigation is initiated at an EU Member State hosting a raw materials project and the national court files a preliminary reference request concerning the validity of these decisions.¹⁸² It remains to be seen whether disputes relating to the licensing of new raw materials projects within the EU will reach the CJEU any time soon. Undoubtedly, though, with multiple – and often overlapping – avenues for legal accountability currently in place, the scholarly and institutional debate over the very rationale of human rights safeguards under the EU’s trade and investment instruments is far from settled.¹⁸³