Talks between the United States and Ukraine on a minerals deal began again in Washington, D.C., on April 11. The two sides are trying to hammer out an agreement after the disastrous Oval Office meeting between President Donald Trump and Ukrainian President Volodymyr Zelenskyy in February. At the meeting, Trump and Vice President JD Vance castigated Zelenskyy for not being grateful enough for U.S. assistance and threatened to abandon Ukraine altogether.
American attempts to coerce Ukraine into giving up its valuable mineral resources are unseemly, but they may also threaten the validity of such a deal under international law. Even if politics is a dirty business, the coercion leveraged against Ukraine seems to shatter the boundaries of expected behavior. The word “diplomacy” can be defined as “the management of international relations by negotiation” or, alternatively, “skill in handling affairs without arousing hostility.” Although the United States’ attempts to extract concessions from Ukraine may qualify as the former, it takes a gruesome knife to the latter. But shredding decency sometimes induces consequences under international law. Although every treaty negotiation process inherently involves bargaining and utilizing one’s strengths to achieve desired outcomes, certain pressures may cross impermissible lines. The coercion leveraged by the United States to secure rights to Ukrainian mineral resources may void any treaty arising from it, as it could be deemed procured by a use of force.
Demanding Payback
After the U.S. election in November, but before Trump took office in January, Ukraine confirmed its willingness to cooperate with the United States on rare earth minerals. Ukraine is believed to hold about five percent of the world’s “critical raw minerals,” including supplies of graphite, titanium, and lithium. On Feb. 12, newly confirmed U.S. Treasury Secretary Scott Bessent presented Zelenskyy with a demand that the United States obtain 50 percent ownership of Ukraine’s rare earth minerals, ostensibly to extract payment for previously provided assistance. The United States demanded Ukraine “sign the deal right then and there.” Zelenskyy refused, arguing that the proposed conditions would punish generations of Ukrainians because they would be forced to pay one-sided obligations without any additional security guarantees.
A frustrated Trump administration returned with an even tougher version of the deal, demanding 100 percent financial interest in a fund to which Ukraine would contribute natural resource revenues until it reached $500 billion (far exceeding the alleged value of all assistance the United States has provided Ukraine), as well as earnings from Ukrainian ports and other infrastructure. Zelenskyy refused again, describing the proposal as “credit with 100 percent interest rate.”
After insisting that the United States was entitled to compensation for the aid it provided, Trump said that Ukraine “may make a deal, [or] may not make a deal – they may be Russian someday, or they may not be Russian someday.” According to reports, U.S. officials began threatening to cut off Ukraine’s access to the Starlink internet service (Elon Musk’s satellite network, which is crucial to Ukrainian military efforts). Meanwhile, Trump called on Zelenskyy to “move fast or he is not going to have a Country left.”
On Feb. 28, Trump disparaged Zelenskyy during the infamous Oval Office meeting, telling him to “make a [peace] deal or we’re out, and if we’re out, you’ll fight it out – I don’t think it’s going to be pretty.” Then, in early March, the United States halted its previously promised military aid and stopped sharing intelligence with Ukraine. U.S. Special Envoy for Ukraine and Russia Keith Kellogg suggested such measures were intended to coerce Ukraine into signing the minerals deal. Kellogg compared Ukraine to a “mule” hit “with a two-by-four across the nose” to “[get] their attention.” Subsequently, a draft agreement was renegotiated, aiming to establish a joint fund to which Ukraine would have to contribute 50 percent of all future revenues derived from Ukrainian-owned natural resources and associated infrastructure.
At the end of March, the Trump administration sought to impose additional elements to its previous demands, including first rights to purchase extracted resources and prohibiting Ukraine from accessing the joint fund’s profits until the United States recoup the claimed value of its previous assistance with 4 percent interest applied on top. In the face of Zelenskyy’s reticence toward increasingly onerous demands, Trump accused him of “trying to back out” of the deal, threatening “big, big problems” on the basis that Ukraine “was never going to be a member of NATO.” The implication seemed straightforward: not signing means the United States will leave Ukraine unprotected.
Many of these actions were aimed at securing a treaty on Ukrainian minerals, though some were more ambiguous and could have been directed at getting Ukraine to sign a potential peace deal with Russia. Regardless, Trump officials appear to consider any U.S. involvement in securing peace in Ukraine as intrinsically linked to the conclusion of a minerals deal.
This raises a crucial principle of international law: a treaty imposed by force is a void treaty. Can the U.S.-Ukraine minerals deal – if signed – be invalidated under international law because of the coercive pressure the United States applied obtaining it? Does the United States’ exploitation of Russia’s invasion constitute procurement of a treaty by use of force? Or can simply leveraging an unlawful situation created by a third state poison the fruits reaped in reward?
A Broad Definition of “Force”
The Vienna Convention on the Law of Treaties (VCLT) contains a sacrosanct rule: “a treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law reflected in the United Nations Charter.” (Article 52 reflecting custom, as outlined, e.g., by Kirsten Schmalenbach, p. 959). Annexed to this provision is a non-binding Declaration (U.N. Doc A/CONF.39/20) condemning the coercion of a state to conclude a treaty by utilizing pressure in any form, including political or economic.
Would a minerals agreement between the United States and Ukraine concluded under these conditions fall under the Article 52 prohibition? Whatever specific form the agreement takes, so long as it is concluded between two states, it would meet the VCLT’s definition of a treaty.
What, then, about “use of force”? One view suggests that the respective notion of “force” should be defined broadly to include, at least in part, forms of economic or political coercion beyond just military force (Corten 1207-1210). This position flows from the views proffered by Hersch Lauterpacht, the International Law Commission’s Special Rapporteur who first presented a draft rule that would mostly be replicated into Article 52 of the VCLT. In particular, he explained that the distinction between physical force and other forms of coercion was rather flexible (Lauterpacht 149). Direct physical force applied against a collective entity, such as a state, does not necessarily entail its application toward natural persons within the state via some military force, e.g., killing people with bombs. Referencing the starvation of a country into submission by cutting off its imports or access to the sea as possible forms physical compulsion against a state, Lauterpacht would conclude that “force” did not necessarily encompass only literal armed force.
In fact, the ordinary meaning of Article 52’s terms may well support this view. Article 52 describes the use of force not clearly limiting its reference to Article 2(4) U.N. Charter (restricted to armed force, Tams 310-311), but rather linking the concept of force to the more expansive “violation of the principles of international law embodied in the [U.N. Charter].” Such a notion is not restricted to any particular U.N. Charter article and validly may be considered to include the principle of sovereign equality and non-intervention into internal affairs – and thus the violation of such principles through alternative forms of force (Corten 1210).
A closer look at the VCLT’s travaux préparatoires (i.e., the records of the treaty’s drafting process) lends further support to this broader vision of what could constitute “force.” The withdrawal of the amendment specifically inclusive of economic or political pressure was only accepted after the adoption of the aforementioned annexed Declaration. It was adopted by 102 votes to none, with only four abstentions (belonging to states who had resisted the express inclusion of economic or political pressure) (Villiger 653). Although non-binding, the Declaration informs the understanding of Article 52’s content (being an authentic means of interpretation as an instrument made by parties in connection with the treaty’s conclusion under Article 31(2)(b) of the VCLT).
The Declaration “condemns the threat or use of pressure in any form, whether military, political, or economic […] in order to coerce” a state to conclude a treaty in violation of “sovereign equality” and “freedom of consent.” This can arguably be an expression restricting the scope of the Declaration’s associated article: Article 52 includes “use of force,” and it is thus not meant to include “use of pressure in any form, whether military, political, or economic.” But restriction also may imply qualification. If these types of pressure are not meant to be included per se, there seems to be no clear prohibition on their inclusion where they rise to the level of a “use of force.” While in most instances the application of political or economic pressure will not invalidate a treaty, it reasonably could in situations of exceptional gravity comparable in result to the use of kinetic military force (Corten 1207).
Taking this broader view, cumulative actions taken by the United States to compel Ukraine to hand over massive mineral wealth could feasibly be seen as economic or political pressure. The suspension or cessation of promised military aid, intelligence sharing, and other forms of essential assistance – as well as threats to do so – toward a victim of ongoing aggression facing an existential threat, certainly prima facie seems to constitute conduct that reaches an equivalent threshold of direct armed or military force under Article 52. This would render a minerals deal of this nature void, afflicted by the serious consequences outlined in the final section.
But what if this approach is rejected in favor of a more restrictive view toward what should be considered “force” under international law? Then, it is worth considering whether the use of force invalidating the treaty needs to be attributed to the instigator of the agreement, or whether it can emanate from a third party (in this case, Russia) and create a situation that the instigator exploits.
Narrow “Force”, Same Result?
Commentators generally ascribe a narrow view to the notion of “force” in Article 52, which purports that it strictly encompasses force as prohibited under Article 2(4) U.N. Charter (see e.g., Schmalenbach 949-950; Villiger 642-644). This narrower view restricts the definition of “force” to armed force, excluding other economic or political forms of coercion that remain condemned under the Declaration but do not result in a treaty’s voidance (Kolb 115-116). The ordinary meaning of the term “use of force” in Article 52, which specifically paraphrases the language of Article 2(4) U.N. Charter, can support such a view. This is further upheld by the VCLT’s drafting history, which featured staunch opposition by a minority of states leading to an amendment inclusive of economic or political pressure being removed (Corten 1206) and put into in a separate non-binding document employing the relatively toothless language of “condemning the pressure.”
U.S. pressure toward Ukraine is certainly not prohibited force under Article 2(4) of the U.N. Charter. However, it indirectly facilitates Russia’s use of force. In this sense, it is leveraging a proxy use of force to conclude a treaty. Following a narrow interpretation, the main question to be asked is whether this means that its “conclusion has been procured by […] use of force” within the meaning of Article 52? Put differently, does Article 52 cover only cases where a singular state uses force and extracts a treaty, or does it also extend to third parties coercing the victim state into an agreement by taking advantage of the force used by another?
Consider a hypothetical example: if state A threatens to use force against state B unless the latter concludes a bondage economic agreement with state C, why would the qualification of such an agreement differ from a case where state A threatened to use force for its own benefits?
Certain commentators hold that Article 52 does not cover situations of third states pressing a coerced state into treaty relations by exploiting the latter’s weakness resulting from the unlawful force of another state (Schmalenbach 947). However, primary interpretation of this provision’s ordinary meaning suggests otherwise. The reference to “conclusion […] procured by […] use of force” is strikingly vague, avoiding any reference to the author of such force. In fact, nothing in Article 52 can reasonably be held to clearly require that the same state must both use force and procure a treaty through that force. The “conclusion” of a treaty can evidently be “procured by use of force” regardless of who is applying this force.
The VCLT’s travaux provide subtle but convincing support to this ordinary reading. Admittedly, many examples proffered by delegates during the VCLT’s drafting focused on a single state attempting to extract concessions via its own use of force (see Waldock Report II 51-52; YBILC 1963 vol. I 52-60, 211-213, 312-313; Waldock Report V 15-20; YBILC 1966 vol. I part I 28-30, 119-121; 1968 Committee of the Whole Minutes 269-293). However, there is no indication that anyone sought to deny the possibility of Article 52’s scope encompassing a third state taking advantage of another’s use of force. The focus of the travaux on the most obvious example – a singular state both using force and wringing a treaty out of it – cannot simply overrule clear ordinary meaning in rules of treaty interpretation (VCLT, Arts. 31-32).
In fact, the travaux showcase delegates appealing to Article 52’s essence as being both the impermissibility of a state reaping the fruits of its own unlawful act and the vitiation of consent where coercive situations impose sufficient duress. Although the former does favor a limitation to the same state using force and obtaining a treaty by focusing on the unlawful actor, the latter demonstrates that unlawful conditions were deemed an equally valid concern regardless of the specific actors imposing them. Further, the debates between the VCLT’s drafters featured multiple references linking the development of Article 52 to the non-recognition of situations resulting from an unlawful use of force. If delegates advocated for this, then necessarily they implicitly considered that nobody – whether the aggressor or third states – can take advantage of such unlawful situations.
There seems to be no real indication that Article 52 is meant to only cover instances where the same state uses force and then procures a treaty from the victim. In fact, the wording seems clearly aligned with an inclusion of situations where any state extracts a treaty by leveraging a use of force that a victim state is subjected to, regardless of its source. Even with a narrower view, U.S. pressure premised on exploiting Russia’s invasion – and the corresponding existential threat to Ukraine – seems to also fall within the shadow cast by Article 52’s void.
The Fate of the Minerals Deal
State consent has multiple shades, capable of quickly shifting between freedom and vitiation as it is moulded through a constellation of factors. Ukraine might have initiated the discussion around allies gaining access to and joint exploitation of its natural resources. After all, Zelenskyy announced it publicly as an element of Ukraine’s widely touted “victory plan” back in October. Yet there is a long, legally charged road between vague overtures and a final binding agreement. Consent, after all, is only truly given at this final stage.
With time and a rapidly changing political context, the genuineness of Ukraine’s intention to conclude theoretical future deals may now be tainted by the level of American coercion in the face of Russia’s persisting aggression threatening Ukraine’s very survival.
Publicly available information raises reasonable concerns about Ukraine’s ability to consent to a minerals deal, setting the stage for claims of voidance. An important caveat is that any definitive future determination is premised on establishing causation between Ukraine’s acceptance of any treaty and Russia’s unlawful use of force. Future disclosure of relevant evidence may support or refute these concerns. If the agreement was indeed premised on leveraging acts facilitating Russia’s aggression causing Ukraine to feel coerced into accepting, such agreement can be said to have been procured by force.
The consequences of a treaty being void ab initio are not just that the entire treaty has no legal force, but even further that its imposition will be a legally wrongful act. Any benefit obtained by the violator state will constitute an injury caused to the victim, who will be entitled to demand reparation for the harm suffered. Although still under duress, even the victim’s compliance with an imposed treaty cannot cure the defects of vitiated consent restoring the treaty validly (Schmalenbach 956). In such a scenario, the fruits of such a deal will be poisoned: for each extraction of minerals and profit made at the expense of Ukraine, the United States will be obligated to pay it all back. The art of the eternally losing deal.
Opinions expressed in the blog are solely the authors’ and do not necessarily reflect the views of the organisations and institutions they work with.