Short answer, yes. Now here’s the long answer.
Disclaimer: this article makes no claims on the merits of a change in government in Venezuela. It simply evaluates the legality of what has occurred.
The United States’ firm stance against the Maduro regime has largely been met with cheer by proponents of democracy and otherwise general haters of the Maduro regime. In the chaos of support to “restore democracy to Venezuela”, however, few have stopped to question the legality of the United States’ actions. Despite a constitutional crisis in stalemate, the United States has accorded Juan Guaidó both political and legal recognition as the sole legitimate leader of Venezuela. This article examines, as a matter of law, whether this constitutes premature recognition, and if so, whether this amounts to an unlawful intervention.
Venezuela is currently mired in constitutional crisis, with the immediate past President Nicolás Maduro claiming to be the duly elected president, and the opposition-backed Juan Guaidó claiming to be interim president pending fresh elections. This crisis was precipitated by the Venezuelan presidential election in 2018,[1] which has been described as a “show election” and a “sham”, and has been rejected by the Organization of American States, and the United States, among others.
The most recent major development took place on 23 January 2019, when the opposition-dominated National Assembly, Venezuela’s legislative body, declared Juan Guaidó interim President of Venezuela. It did so pursuant to Article 233 of the Venezuelan constitution, which states that “when the president-elect is absolutely absent before taking office, a new election shall take place (...) And while the president is elected and takes office, the interim president shall be the president of the National Assembly.”[2]
Nicolás Maduro continues to make public decisions, supported by the judiciary (which refused to uphold the National Assembly’s declaration), the electoral body, and armed forces.[3],[4] He is also supported by the Constituent National Assembly, a semi-recognised higher legislative body that Maduro ordered the creation of in 2017.[5] The Constituent National Assembly is not recognised by the National Assembly.
An expanding number of states has issued statements of political support for opposition leader Juan Guaidó’s claim to the interim presidency, but the United States has gone one step further, according political andlegalrecognition to Guaidó as the sole legitimate leader of Venezuela. On 29 January 2019, Secretary of State Michael Pompeo certified Guaidó’s authority to access Venezuelan government property held in the US Federal Reserve Bank or any US-insured bank.[6]
There are three parts to my answer:
To intervene in another State’s affairs is legal shorthand: it refers to a breach of the international legal principle of non-intervention. This cardinal principle is a matter of customary international law and considered a fundamental duty of the state.[7] It is also enshrined in the United Nations Declaration on Friendly Relations[8] and the Charter of the Organisation of American States[9] (to which both the United States and Venezuela are parties).
Its precise definition is a matter of disagreement,[10] but the ICJ in Nicaragua v United States of America said: “the principle forbids all States or groups of States to intervene directly or indirectly in internal or external affairs of other States … Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones.”[11]
According to this definition, an unlawful intervention entails the following
To establish unlawfulness, the area that we are concerned the United States might be intervening with must be one of exclusively domestic jurisdiction. Our focus is the Venezuelan political process. It is uncontroversial to describe this as an area of domestic jurisdiction, but for completeness, the following case law and treaty law can provide some support. In Nicaragua v US, the ICJ affirmed the fundamental right of every State to “choose and implement its own political, economic and social systems”.[12] The Charter of the Organisation of American States also affirms States parties “right to choose, without external interference, its political … system and to organize itself in the way best suited to it”.[13]
The method of interference must also be coercive for it to amount to unlawful intervention. Here, our concern is economic coercion. Economic coercion is often difficult to establish because the interdependence of states means that innocent actions taken in pursuit of a State’s own economic interest may economically impact another. The line to be drawn is between mere interference as part of a State’s pursuit of its legitimate interests and unlawful pressure placed on another State. There is, however, little indication that the United States is pursuing any legitimate economic interest by according the Guaidó government legal recognition.
The United States has accorded Guaidó’s government full legal recognition. There are two indications to this effect.
First, on 25 January 2019,[14] the United States accepted Guaidó’s designation of the Chargé d’Affaires of Venezuela in the United States. This indicates the United States’ acceptance of his competence to select an official representative of the state to the United States. The United States Treasury also issued a statement saying it “will use its economic and diplomatic tools to ensure that commercial transactions by the Venezuelan government … are consistent with its recognition of Juan Guaidó as the caretaker president of Venezuela.”
Second, on 29 January 2019, the State Department certified Guaidó’s authority to draw upon Venezuelan public funds held in United States-insured banks. These acts are, by all accounts, to the exclusion of Maduro’s competence to do the same.
A wealth of academic literature[15],[16],[17] has identified two ways in which a State can recognise a foreign government: politically and legally. This is supported by examples of state practice.
Political (or diplomatic) recognition amounts to a mere willingness to enter into political or other relations with that group. To this effect, Secretary of State of the United States Michael Pompeo issued a statement on 23 January 2019[18] which accorded Guaidó the highest possible level of political recognition:[19] as the sole legitimate representative of the Venezuelan people.
Legal recognition, on the other hand, has a higher threshold and comes with more significant consequences. It is defined by Lauterpacht as the acknowledgement that a group enjoys, with a reasonable degree of permanency, the habitual and willing obedience of the bulk of a population.[20] Kelsen and Talmon elaborate that legal consequences flow from this.[21], [22]
There is some debate as to whether this is a legal matter or one of purely political discretion, but the balance of opinion is on the former view.
First, as a matter of State practice, the dominant practice is to use the effectiveness of governmental power as the standard of recognition.[23],[24], [25] Other tests, such as the lawful origin of the new government in relation to the constitutional law of the State, the manner of revolutionary change, and the willingness and ability of the new government to fulfil international obligations have been largely abandoned.[26]
Second, independent States are entitled to possess a government chosen or tolerated by their peoples. If the decision of recognition was a purely political matter, States would be enabled to recognise at will whatever political group suited them as the legal representative of another State. This is antithetical to the principle of self-determination in international law.
Third, the grant or refusal of legal recognition to a government subjects vital aspects of international law to arbitrary behaviour and/or changing circumstances of convenience on part of recognising States. For example, a government to whom recognition is denied is deprived of the protection it would otherwise receive under international law, against foreign assistance to rebellious internal forces. Official acts of organs of state are disregarded, it is refused jurisdictional immunities and it cannot appear as plaintiff in foreign courts.[27]
For these reasons, the view is adopted that legal recognition of government status is a matter of law. It may be fulfilled by the Executive departments of States, but this is in fulfilment of a legal obligation on the State to recognise the government of another State.
If the decision of when to grant legal recognition to a government is a matter of law, then it follows that it is possible to grant it prematurely.
As long as the established government attempts, however plausibly, to retain power, the legalrecognition of an opposition group as the legitimate government is against international law.Lauterpacht describes the illegality of the premature recognition of a government as “so generally admitted that … even those who adhere to the political view of recognition admit that at least this particular aspect of it is governed by international law.”
Premature recognition reduces the establishment government’s status to that of a rebellious group, and elevates the opposition group to the status of legitimate government. This has further consequences.If State A were to disburse property belonging to State B to an opposition group instead of the established government on a political whim, then the loss of this property can significantly disadvantage the established government’s position. Similarly, if State A refuses to conduct foreign relations with the established government of State B, unless it gives way to an opposition group, then this prevents the established government from being able to carry out its official duties and thereby disadvantages its claim to authority.
Lauterpacht cites the example of Germany and Italy’s premature recognition of Spanish insurgents early into the Spanish Civil War in 1936, when the outcome was yet uncertain and the war far from concluded. It can equally be said that the outcome of the Venezuelan constitutional crisis is yet both uncertain and concluded, and that premature recognition can constitute an unlawful intervention.
There is a strong presumption in international law in favour of the established government.[28],[29] Harcourt expressed this principle lucidly: “The presumption is necessarily in favour of the former Sovereign. And a friendly State is bound to exact very conclusive and indisputable evidence that the sovereignty of a government with which it has existing relations over any parts of its former dominions has been finally and permanently divested. It is not at liberty during the actual struggle to speculate on the result, or to assume the probability of the ultimate failure of the ancient Sovereign, however plausible may be the grounds for such an inference”.[30]
The state of affairs in Venezuela do not suggest that Guaidó enjoys significant control over the state. It is also relevant that the United States is simultaneously engaged in a “whole of government approach to supporting the democratic ambitions of the Venezuelan people”, which refers to the United States taking diplomatic and economic action to effect a transfer of power to Guaidó.[31]
The basis of legal recognition must be determined primarily through evaluating actual conditions of power and effectiveness of the authorities claiming recognition.[32]
The factual conditions in Venezuela do not lend themselves easily to the conclusion that Guaidó’s government has effective control.
Maduro retains control of a majority of the major organs of state: the electoral body, the armed forces, the executive body, and the judiciary.[33] His government continues to make administrative decisions.[34]
Moreover, it is noteworthy that the majority of States that have accorded Guaidó recognition have limited this recognition to political statements of support. This is significant because if the grant of legal recognition is a matter of law based on the establishment of factual circumstances, then if these circumstances are fulfilled, an obligation would have arisen on all other States also to recognise the Guaidó government (in the sense of conducting official business relating to Venezuela with his government). Their not having done so suggests their recognition that the factual circumstances in Venezuela preclude such a determination at this point.
Guaidó’s claim to power is based heavily on legitimacy, rather than actual control of the state. His efforts to assume the interim Presidency have been rooted in calling for demonstrations to disrupt the normal operation of government.[35]
These strongly imply that the levers of power remain in the hands of Maduro, and that the factual circumstances therefore preclude the United States from according Guaidó legal recognition.
The consequences that have flown from recognising Guaidó’s interim presidency have been economically coercive, and form part of a wider campaign of economic sanctions against the Maduro regime. The United States has both restricted Maduro’s access to Venezuelan funds held in the US Federal Reserve Bank and all US-insured banks. The United States is explicit that these actions are designed to encourage “the Venezuelan government to take steps in returning to a democratic system.”[36] This makes clear the United States’ intention that these actions effect a change in government from Maduro to Guaidó.Restricting the Maduro government’s access to funds directly impacts his ability to run Venezuela, and politically, to pay the armed forces and ensure their continued loyalty.[37]
Having established that the United States has intervened in Venezuela, there are two possible responses it may make to establish that its intervention is legal:
The United States may claim that under Art 7 (Definition of Aggression) of the UN General Assembly Resolution 3314, they are entitled to provide assistance to peoples in their exercise of the right to self-determination. In this case, people who are deprived of their right to self-determination by force are entitled to struggle to achieve their freedom, including through support from other States. The issue here is that the resources provided are presented as the legal entitlement of the opposition group. Moreover, it is a difficult sell that a transfer of resources that the Maduro government is entitled to by right, to the Guaido government, can constitute “assistance” on part of the United States.
They may also claim that their intervention is justified for humanitarian reasons. Latulippe argues that a strong justification can be made that an obligation is incumbent upon the international community under the “responsibility to protect” commitment. He argues that this justification extends to military intervention to dislodge the Maduro government, and is triggered by the economic crisis plaguing Venezuela (which in his view, the Maduro government is responsible for). This argument may work in the hypothetical for a coalition of states authorised by the United Nations, but customary international law allowing for interventions by individual States has not been established yet.
The United States has prematurely recognised Juan Guaidó as the legalinterim President of Venezuela, and this recognition amounts to a violation of international law. This is no indication on the moral merits of either a Maduro or Guaidó government, but the author believes that it is important for the integrity of the international legal system to call a spade a spade, and an unlawful intervention an unlawful intervention. If the morally “right” (in the limited circumstances, with the limited information available) or politically expedient thing to do involves a violation of international law, one should accept this and address the issue head on.
Kunig, P. (2008). Prohibition of Intervention. In R. Wolfrum, Max Planck Encyclopedia of Public International Law.Heidelberg: Max Planck Institute for Comparative Public Law and International Law.
Winfield, P. (1922-1923). The History of Intervention in International Law. British Yearbook of International Law, 130.
Moser, J. J. (1778). Beyträge Zu Dem Neuesten Euröpa-Ischen Völkerrecht in Friedens-Zeiten.Bavaria, Germany.
Carbone, S. M., & di Pepe, L. S. (2009). States, Fundamental Rights and Duties. In R. Wolfrum, Max Planck Encyclopedia of Public International Law.Heidelberg: Max Planck Institute for Comparative Public Law and International Law.
United Nations Documents. (1970, October 24). Retrieved from 2625 (XXV). Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations: http://www.un-documents.net/a25r2625.htm
Charter of the Organisation of American States. (n.d.). Retrieved from Organisation of American States: http://www.oas.org/en/sla/dil/inter_american_treaties_A-41_charter_OAS.asp
Lauterpacht, H. (1944). Recognition of States in International Law. Yale Law Journal, 390.
Lauterpacht, H. (1945). Recognition of Governments. Columbia Law Review, 815-864.
Kelsen, H. (1941). Recognition in International Law: Theoretical Observations. The American Journal of International Law, 35(4), 605-617.
Talmon, S. (2013). Recognition of Opposition Groups as the Legitimate Representative of a People. Chinese Journal of International Law, 219-253.
U.S. Department of State. (2019, January 23). Recognition of Juan Guaido as Venezuela's Interim President . Retrieved from U.S. Department of State: https://www.state.gov/secretary/remarks/2019/01/288542.htm
Harcourt, W. V. (1863). Letters by Historicus on Some Questions of International Law.Virginia: Macmillian and Company.
Le Normand, R. (1899). La Reconnaisance Internationale et ses Diverses Applications.
Robert Palladino, D. S. (2019, January 29). Protecting Venezuela's Assets for Benefit of Venezuelan People. Retrieved from U.S. Department of State: https://www.state.gov/r/pa/prs/ps/2019/01/288634.htm
Constitution - Title VIII: Protection of the constitution (Art. 333-339). (n.d.). Retrieved from Venezuelanalysis.com: https://venezuelanalysis.com/constitution/title/8
Bello, C. (2019, January 27). Is it legal for Juan Guaidó to be proclaimed Venezuela's interim president?Retrieved from Euronews: https://www.euronews.com/2019/01/27/is-it-legal-for-juan-guaido-to-be-proclaimed-venezuela-s-interim-president
Reuters, Associated Press. (2019, January 24). Russia, Turkey Back Venezuela's Maduro After U.S. Backs Opposition Leader. Retrieved from Haaretz: https://www.haaretz.com/world-news/americas/turkey-s-erdogan-backs-venezuela-s-maduro-after-u-s-backs-opposition-leader-1.6870335
Picheta, R. (2019, January 26). Bank of England blocks Maduro's $1.2B gold withdrawal. Retrieved from CNN: https://edition.cnn.com/2019/01/26/uk/venezuela-maduro-bank-of-england-gold-withdrawal-gbr-intl/index.html
Alexander, H., & Weddle, C. (2019, February 2). Venezuela crisis: Nicolas Maduro on brink as military top brass turn against him. Retrieved from The Telegraph: https://www.telegraph.co.uk/news/2019/02/02/venezuela-braced-rival-protests-european-deadline-maduro-call/
Dettmer, J. (2019, January 29). Maduro's Fate Seen as Resting With Venezuela's Army. Retrieved from VOA News: https://www.voanews.com/a/maduro-fate-venezuela-army/4763912.html
A Whole of Government Approach to Supporting the Democratic Aspirations of the Venezuelan People. (5, February 2019). Retrieved from U.S. Department of State: https://www.state.gov/p/wha/ci/ve/venezuela/index.htm
[1]For a useful summary of the political battleground, see https://www.euronews.com/2019/01/27/is-it-legal-for-juan-guaido-to-be-proclaimed-venezuela-s-interim-president.
[2]Constitution - Title VIII: Protection of the constitution (Art. 333-339). (n.d.). Retrieved from Venezuelanalysis.com: https://venezuelanalysis.com/constitution/title/8
[3]Bello, C. (2019, January 27). Is it legal for Juan Guaidó to be proclaimed Venezuela's interim president?Retrieved from Euronews: https://www.euronews.com/2019/01/27/is-it-legal-for-juan-guaido-to-be-proclaimed-venezuela-s-interim-president
[4]Reuters, Associated Press. (2019, January 24). Russia, Turkey Back Venezuela's Maduro After U.S. Backs Opposition Leader. Retrieved from Haaretz: https://www.haaretz.com/world-news/americas/turkey-s-erdogan-backs-venezuela-s-maduro-after-u-s-backs-opposition-leader-1.6870335
[5]Ibid.
[6]Robert Palladino, D. S. (2019, January 29). Protecting Venezuela's Assets for Benefit of Venezuelan People. Retrieved from U.S. Department of State: https://www.state.gov/r/pa/prs/ps/2019/01/288634.htm
[7]Carbone, S. M., & di Pepe, L. S. (2009). States, Fundamental Rights and Duties. In R. Wolfrum,Max Planck Encyclopedia of Public International Law.Heidelberg: Max Planck Institute for Comparative Public Law and International Law.
[8]United Nations Documents. (1970, October 24). Retrieved from 2625 (XXV). Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations: http://www.un-documents.net/a25r2625.htm
[9]Charter of the Organisation of American States. (n.d.). Retrieved from Organisation of American States: http://www.oas.org/en/sla/dil/inter_american_treaties_A-41_charter_OAS.asp
[10]Kunig observes that in general use, it is defined as “the interference by a State in the internal or foreign affairs of another State”. Kunig, P. (2008). Prohibition of Intervention. In R. Wolfrum, Max Planck Encyclopedia of Public International Law.Heidelberg: Max Planck Institute for Comparative Public Law and International Law. Winfield, however, observed that the specific definition is so unclear that “intervention may be anything from a speech of Lord Palmerston’s in the House of Commons to the partition of Poland”. Winfield, P. (1922-1923). The History of Intervention in International Law. British Yearbook of International Law, 130.
[11]Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v the United States of America) [1986] ICJ 14, at [205].
[12]Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v the United States of America) [1986] ICJ 14, at [205], [258], and [263].
[13]Article 3e, Charter of the Organisation of American States, http://www.oas.org/en/sla/dil/inter_american_treaties_A-41_charter_OAS.asp
[14]Robert Palladino, D. S. (2019, January 29). Protecting Venezuela's Assets for Benefit of Venezuelan People. Retrieved from U.S. Department of State: https://www.state.gov/r/pa/prs/ps/2019/01/288634.htm
[15]Lauterpacht, H. (1945). Recognition of Governments. Columbia Law Review, 815-864.
[16]Kelsen, H. (1941). Recognition in International Law: Theoretical Observations. The American Journal of International Law, 35(4), 605-617.
[17]Talmon, S. (2013). Recognition of Opposition Groups as the Legitimate Representative of a People. Chinese Journal of International Law, 219-253.
[18]U.S. Department of State. (2019, January 23). Recognition of Juan Guaido as Venezuela's Interim President.Retrieved from U.S. Department of State: https://www.state.gov/secretary/remarks/2019/01/288542.htm
[19]Talmon, S. (2013). Recognition of Opposition Groups as the Legitimate Representative of a People. Chinese Journal of International Law, 219-253.
[20]Lauterpacht, H. (1945). Recognition of Governments. Columbia Law Review, 815-816.
[21]Kelsen, H. (1941). Recognition in International Law: Theoretical Observations. The American Journal of International Law, 35(4), 611
[22]Talmon, S. (2013). Recognition of Opposition Groups as the Legitimate Representative of a People. Chinese Journal of International Law, 233-234.
[23]Lauterpacht, H. (1945). Recognition of Governments. Columbia Law Review, 849.
[24]Moser, J. J. (1778). Beyträge Zu Dem Neuesten Euröpa-Ischen Völkerrecht in Friedens-Zeiten.Bavaria, Germany.
19Kelsen, H. (1941). Recognition in International Law: Theoretical Observations.The American Journal of International Law, 35(4), 233
[26]Lauterpacht, H. (1945). Recognition of Governments. Columbia Law Review, 826.
[27]Lauterpacht, H. (1945). Recognition of Governments. Columbia Law Review, 818.
[28]Harcourt, W. V. (1863). Letters by Historicus on Some Questions of International Law.Virginia: Macmillian and Company.
[29]Le Normand, R. (1899). La Reconnaisance Internationale et ses Diverses Applications.
[30]Harcourt, W. V. (1863). Letters by Historicus on Some Questions of International Law.Virginia: Macmillian and Company.
[31]A Whole of Government Approach to Supporting the Democratic Aspirations of the Venezuelan People. (5, February 2019). Retrieved from U.S. Department of State: https://www.state.gov/p/wha/ci/ve/venezuela/index.htm
[32]Lauterpacht, H. (1944). Recognition of States in International Law.Yale Law Journal, 390.
[33]Bello, C. (2019, January 27). Is it legal for Juan Guaidó to be proclaimed Venezuela's interim president?Retrieved from Euronews: https://www.euronews.com/2019/01/27/is-it-legal-for-juan-guaido-to-be-proclaimed-venezuela-s-interim-president
[34]Picheta, R. (2019, January 26). Bank of England blocks Maduro's $1.2B gold withdrawal. Retrieved from CNN: https://edition.cnn.com/2019/01/26/uk/venezuela-maduro-bank-of-england-gold-withdrawal-gbr-intl/index.html
[35]Alexander, H., & Weddle, C. (2019, February 2). Venezuela crisis: Nicolas Maduro on brink as military top brass turn against him. Retrieved from The Telegraph: https://www.telegraph.co.uk/news/2019/02/02/venezuela-braced-rival-protests-european-deadline-maduro-call/
[36]A Whole of Government Approach to Supporting the Democratic Aspirations of the Venezuelan People. (5, February 2019). Retrieved from U.S. Department of State: https://www.state.gov/p/wha/ci/ve/venezuela/index.htm
[37]Dettmer, J. (2019, January 29). Maduro's Fate Seen as Resting With Venezuela's Army. Retrieved from VOA News: https://www.voanews.com/a/maduro-fate-venezuela-army/4763912.html
