Potential U.S. minerals deal has many controversial issues unacceptable to Ukraine, says MP

Espreso correspondent Natalia Starepravo reported this from the Verkhovna Rada.

About the document's authenticity

“I'll start with a warning: there is no official confirmation that this text exists. However, today a Western journalist I know sent me this text. That is, it is already on the Internet... Just to make a reservation: it is not fully known, there is no confirmation whether it is fake or not. But it looks like it's not fake, because this document is drawn up in the style of American law. But again, I emphasize that there is no 100% certainty that this is not a fake,” Merezhko said. 

He noted that if this is indeed “a serious proposal from the US administration,” it could cause serious problems, as the document “is absurd.” 

“I'll explain why. This project that I have, it's even called very interestingly — United States Ukraine Reconstruction Investment Fund, and then the subtitle is Delaware Limited Partnership. That is, we are talking about the creation of a legal entity under American law, more precisely, under the law of the state of Delaware. And here we are talking about our resources, which, according to Article 13 of the Ukrainian Constitution, are the property of the people of Ukraine,” the politician emphasized. 

About formalities

Oleksandr Merezhko also drew attention to the formal side of the agreement. 

“This is by no means an international agreement. It looks like a typical American contract. It is a civil law agreement. I cannot understand why it was necessary to do this, because consistency and good faith are very important in politics. As far as I understand, we, Ukraine, agreed with our American friends and partners that a Memorandum of Understanding, an international agreement on rare earths or minerals, would be signed. We already have the text. We have reached an agreement. The essence of this agreement is that we are starting serious negotiations to develop a full-fledged international treaty. This was the agreement. Now all this is changing, a completely unexpected text of a contract is being proposed, which is not an international treaty, does not comply with Ukrainian law, because it is written from the point of view of the United States law,” explained Merezhko. 

He also emphasized the unacceptability of such proposals. 

“In fact, we need to take a more balanced and serious approach to this. Given that we are talking about Ukraine's resources. This is the national wealth, this is the future of Ukraine. And it is absurd to decide on the basis of a contract of one of the parties,” the MP added. 

Merezhko suggested that it would be better to sign the already developed document first. 

“Then start serious negotiations and create groups. If we are talking about an international treaty, it should be a treaty that is subject to ratification not only by the Verkhovna Rada of Ukraine, but also by the United States Senate. Because international treaties are subject to ratification under the American Constitution. Both the President and the Senate are involved in this,” the MP said.

About the document content

Speaking about the content of the agreement, Oleksandr Merezhko noted that “there are a lot of controversial issues that are unacceptable to us.” 

“For example, one of the parties cannot have a veto. Ukraine should have the right to veto, because these are our resources. Secondly, it is an unclear issue, and it is very dangerous when there is an attempt to make Ukraine give its resources in exchange for what was provided earlier. From the point of view of legal logic, this is not acceptable. We should have negotiated from the beginning. And to have some kind of formalized agreement. Perhaps a contract or an agreement. Because in principle, law does not have a retroactive effect. If we start to analyze it, we will open a Pandora's box. When we start to figure out who owes what to whom in the past. This can lead to very unpleasant political consequences. Then we need to start calculating how much the nuclear weapons we gave away cost. To include or not to include it in the calculations?” - Merezhko emphasized. 

On ratification and the need to implement the treaty into domestic law

He also noted that even the conclusion of a full-fledged international treaty is not sufficient. 

“Because the treaty creates rights and obligations for the state. It does not create an effect in national law. Therefore, it is necessary to implement the treaty into domestic law. This means adopting the relevant implementing legislation. And this legislation, this treaty, must comply with the Constitution of Ukraine and the national law of Ukraine. And this proposed contract completely ignores international law, the law of international treaties and the national law of Ukraine,” the politician explained. 

He added that when it comes to the need to ratify the document, American colleagues should also be involved in the process. 

“There is a practice in the United States where special groups of congressmen are created to participate in the negotiation process,” added Merezhko. 

The MP also emphasized that the American partners have yet to officially confirm their position and the document they propose to sign.