THE MINERALS AGREEMENT WITH THE UNITED STATES: THE PUBLIC ADMINISTRATION ASPECT

The article explores international practices of concluding agreements on the use of mineral resources, their types, and specific features. The primary focus is on the issue of drafting an investment agreement between Ukraine and the United States to establish a Reconstruction Investment Fund, which envisages the monetisation of Ukraine’s state-owned natural resource assets. The study examines various types of international agreements regarding mineral resources, focusing on the following models: production-sharing agreements that stipulate the terms of cooperation between the state and private entities for the extraction of oil, gas, or other resources; state concessions, whereby private companies acquire mining rights in exchange for royalties or taxes; licensing agreements that provide for the licensing of exploration or extraction activities; and joint venture agreements, with multiple parties collaborating in mining and profit-sharing. A distinctive feature of some agreements is the inclusion of an international political element. For instance, the 2022 Agreement between Israel and Lebanon resolved territorial disputes through profit-sharing from gas extraction, while the 2015 Agreement between Brazil and Germany facilitated investments in rare earth extraction with a focus on building a “green” economy. Similarly, the 2019 Agreement between the United States and Mongolia enhanced their cooperation in mining critical minerals, strengthening strategic supply chains. The draft Agreement for the establishment of the Reconstruction Investment Fund outlines key provisions, including: joint ownership of the Fund’s assets by the governments of Ukraine and the United States; monetization of natural resource assets (minerals, oil, gas, etc.); and investments in the reconstruction of Ukraine’s infrastructure, state-owned ports, and enterprises. At the same time, emphasis is placed on the constitutional guarantees that designate land, subsoil, their mineral resources, and other natural assets as the property of the Ukrainian people. The use of these resources is regulated by the Subsoil Code, which provides for, among other things: competitive processes (electronic auctions) when granting subsoil use rights; the exclusive right of the parliament and local councils to exercise the Ukrainian people’s ownership of subsoil; and the existence of certain restrictions on granting foreigners the right to use natural resources. In light of this, it is emphasised that the potential agreement between Ukraine and the United States could qualify as an investment agreement but raises several legal risks. The article underscores the importance of safeguarding the rights of the Ukrainian people over natural resources, even when attracting foreign investments, and highlights the necessity of creating sustainable legal and institutional frameworks for concluding international agreements of this kind.