Rival Governments in Venezuela: Democracy and the Question of Recognition
On January 23rd, 2019, a multitudinous crowd occupied the streets of Caracas, demanding President Nicolas Maduro’s resignation and the formation of a new Government. Opposition Leader and President of the National Assembly Juan Guaidó was sworn in as Interim President of the Republic. Guaidó invokes Article 233 of the Venezuelan Constitution, according to which the President of the National Assembly may assume presidential functions in the case of an ‘absolute absence of the President elect’. He also relies on Article 333, which addresses the protection of the constitutional order from acts of force. Guaidó’s Proclamation and his promise of fresh elections sowed hope among many Venezuelans who are suffering the consequences of an unprecedented economic crisis, with the inflation rate reaching 1.300.000% in 2018.
Venezuela is divided into two opposite sets of institutions with competing claims to power. On the one side of the spectrum, there is Guaidó. He enjoys support from the National Assembly, which has been under control of opposition parties since the 2015 parliamentary elections. The Supreme Court in exile, whose members were appointed in July 2017 by the National Assembly, also backs Guaidó. On the other side of the spectrum there is the Maduro regime. Maduro claims that he was elected President for the 2019-2025 term in the May 2018 elections, which opposition leaders and numerous States consider illegitimate because of the absence of a fair and free democratic election (cf. OAS Resolution 2929/18). The Supreme Court in exile declared the 2018 election null and void. Maduro has nonetheless received support from the Constituent Assembly he convened in 2017, the Supreme Court in situ and the military.
States all over the world face now a choice between two parallel regimes. Only one can be recognized as legitimate. As expressed by U.S. Secretary of State Pompeo at the UN Security Council, ‘now it’s time for every other nation to pick a side’. In principle, international law does not require States to establish a democratic political organization. A Government’s recognition most typically depends on political reality and, particularly, on its ability to exercise effective control (cf. Roth, pp. 137 et seq.). This article argues that, against the backdrop of a split society and rival institutions, coupled with massive protests and widespread civic resistance, democratic legitimation provides a solid criterion for recognition (cf. Herdegen, pp. 207 et seq.). In the case of Venezuela, the National Assembly is the only institution whose democratic legitimacy remains unchallenged. Guaidó is thus a reasonable choice.
The race for recognition
The race for recognition already started. Shortly after Guaido’s Proclamation, the Governments of the Lima Group (Argentina, Brazil, Canada, Chile, Colombia, Costa Rica, Guatemala, Honduras, Panamá and Perú) and the United States recognized him as Interim President. The Secretary-General of the Organization of American States [OAS], Luis Almagro, welcomed Guaido’s Proclamation as a fundamental step in bringing Venezuela back to the path of Democracy. Almagro’s declaration is consistent with OAS Permanent Council’s decision ‘to not recognize the legitimacy of Nicolas Maduro’s new term’ (Resolution 1117/19).
Still, Maduro secured support from a few Latin American States, such as Bolivia, Cuba and Nicaragua, as well as from Russia and Turkey. Moreover, the UN Security Council was unable to reach an agreement on the Venezuelan crisis. Russia characterized U.S. recognition of Guaidó as ‘another demonstration of its total disregard for the norms and principles of international law and an attempt to pose as the self-imposed master of another nation’s future’. China has also opposed recognition of Guaidó, underscoring ‘[the principle of] non-interference in each other’s internal affairs’.
Other States remain cautious. The EU issued a Declaration stating that ‘in the absence of an announcement on the organization of fresh elections with the necessary guarantees over the next days, the EU will take further actions, including on the issue of recognition’. The Mexican Government expressed concern for the political situation of Venezuela without recognizing Guaidó as Head of State. The Mexican President invoked Mexico’s strict policy of non-intervention in the internal affairs of other States. This policy is in line with the Estrada Doctrine (1930).
Recognition and the consent of the governed
There has been much debate as to whether recognition shall solely depend on a Government’s ability to exercise actual control over a territory and its population, or whether legitimacy – democratic or otherwise – should play a role in this regard (cf. Roth, pp. 136 et seq.). It is beyond doubt, however, that policies of recognition have traditionally taken into consideration the people’s consent or, at least, passive obedience or acquiescence to the rule of those who yield power (cf. Lauterpacht, pp. 115 et seq.). The existence of democratic institutions facilitates the ascertainment of such consent or, using Thomas Jefferson’s formula on recognition, the presence of ‘[a Government] which is formed by the will of the nation, substantially declared’. Active opposition against Maduro’s Government sheds doubts on the existence of consent by the governed. Open civic disobedience to a Government moreover indicates an absence of effective control over the population (cf. Lauterpacht, p. 115).
The role of democratic legitimation
General international law does not prescribe the political organization of States. In the Western Sahara Advisory Opinion (1975), the ICJ held that ‘no rule of international law […] requires the structure of a State to follow any particular pattern’ (ICJ Rep 12  para 94). Still, where neither of two rival governments exercises territorial control or there is active resistance against their authority, democratic legitimation is a solid criterion to make a choice. Democracy has sometimes even taken precedence over naked military force. It is not uncommon for States to withhold recognition of Governments established through a Coup d’État which overthrows a democratically-legitimated Government. Moreover, the UN Security Council has adopted measures against regimes established by military force against elected Governments (cf. Resolutions 1132/97 and 841/93). Herdegen observes ‘a shift of accent from a fixation in effectiveness and protection of the status quo to a democratically and constitutionally-based legitimacy’ (author’s translation, p. 204.).
Democracy has a particularly prominent role in the American continent. Many States have historically followed the Tobar Doctrine (1907), which posits the non-recognition of revolutionary governments established in violation of the constitution. In the 1960s Venezuela itself adopted a strict policy of non-recognition of regimes established against the authority of elected Governments (Betancourt Doctrine; see Document 27 here).
In the Inter-American Democratic Charter, OAS Member States elevated democracy to a sine qua non condition for the legitimate exercise of sovereign authority in the region by recognizing that ‘[t]he peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it’ (Article 1). The Charter addresses cases involving ‘an unconstitutional interruption of the democratic order or an unconstitutional alteration of the constitutional regime that seriously impairs the democratic order in a member state’ (Article 19). Those situations are considered as ‘an insurmountable obstacle’ to participation in the OAS and carry suspension from the Organization (Articles 19-21).
The OAS Permanent Council declared the existence of an interruption of the constitutional order in Venezuela in 2017, after an attempt by the Supreme Court to assume the National Assembly’s legislative functions (Resolution 1078/17). Later on, the OAS General Assembly asserted that the 2018 election ‘lacks legitimacy’ (Resolution 2929/18). Thus, even before Guaidó’s Proclamation, the OAS only recognized the National Assembly and the Supreme Court in exile as ‘democratic institutions’ in Venezuela. In a recent statement, the EU declared, too, that the National Assembly is ‘the democratic legitimate body of Venezuela’.
These statements indicate that the National Assembly is the only organ whose democratic legitimacy is beyond dispute. The fact that Guaidó enjoys express support from the National Assembly provides a strong argument in favor of his recognition as Interim President of Venezuela.
The time is ripe for recognition
Contending Governments have per se incompatible legitimacy claims. No State can therefore simultaneously grant de jure recognition to more than one rival Government (cf. Talmon, p. 105). Recognition of Guaidó as de jure President of Venezuela necessary implies denying de jure recognition to Maduro, and vice-versa. States stand now before a choice. Neither Maduro nor Guaidó are in full control of the country. Still, as a result of the National Assembly’s support, only Guaidó has a credible legitimacy claim. As Interim President, Guaidó’s mission is to organize a new and fair Presidential election. Democracy is on his side.
* Sebastián Mantilla-Blanco is a Research Associate at the Institute of Public Law of the University of Bonn.
Is there a legal definition for the term „regime“ used in this paper for the Maduro government?
It seems to be the rule in this blog, that heavily biased opinions are hidden behind a seemingly independent legal analysis.
Just a note: Spanish PM recognised Guaido as President of Venezuela Saturday last.
An interesting analysis however ultimately, I find it problematic.
The author cites the legal bases for Guiado’s self-declaration as President (Articles 233 and 333 of Venezuela’s constitution) but goes into very little detail as to whether these are sound bases for such a declaration. From a close reading of these articles, it is clear that that answer is far from certain; Article 233 allows the Head of the National Assembly to assume presidential functions for 30 days maximum if the President is declared „unable to serve“, so that fresh elections can be organised. Maduro does not appear to be „unable to serve“ under any sensible reading of the exhaustive list provided in Article 233: as conceded by the author, the current Supreme Court has backed his election, he has not abandoned his office or been declared mentally ill. Secondly, even it it were the case that Maduro was unfit to serve, Article 233 makes clear that, as he has as he has already been inaugurated, control of the Presidency shall pass to the Vice-President, not the leader of the National Assembly. Further as alluded to earlier, the powers of the President can only be assumed to facilitate fresh elections, there seems little basis for Guiado swearing himself in , and being internationally recognised, as Head of State – he has not been elected as the President of Venezuela. Article 333 seems a questionable basis to empower Guiado to declare himself President also. This article speaks of protecting the constitution from „acts of force“; I would be interested in the drafting history of this provision, but I imagine it was not envisaged that it would be used to allow the Head of the National Assembly to swear himself in as Head of Stare over the will of an elected president who has not been declared by the Courts to be unfit to serve, abandoned his office or become mentally/ physically unfit to serve. If anything, it could be argued that Guiado’s actions could be seen as an act of force against Venezuela’s constitution and the invocation of this provision seems tenuous at best.
I also must reject the „people’s consent“ being treated as a monolith. Many Venezuelans don’t support Maduro, but many Venezuelans do – supporters of the ‚Bolivarian revolution‘ who see him as a continuation of Chavez. Many have expressed their scepticism over US involvement – especially as the US were involved in the economic destabilisation of the nation and, while acting under the pretext of humanitarian concerns, have a history of supporting dictatorships in Latin America so long as they act in concert with their interests. It must be recalled that the US supported the Jiménez regime in the 1950s in Venezuela accused of mass human rights abuses and has friendly relationships with nations that are so autocratic they have never known elections. So there is not at all consensus in what the people want, apart from an end to suffering.
Thanks for taking the time to comment on my post. As there are two rival Governments in Venezuela, it is only natural that both sides raise constitutional arguments and have rival constitutional narratives. It is worth keeping in mind that there are two Supreme Courts in Venezuela, one in situ and one in exile. The National Assembly recognizes the Court in exile only. The Court in exile deposed Mr. Maduro in a decision issued in October 2018 on corruption charges and declared a ‘constitutional vacuum in the National Executive Power of Venezuela, in accordance with Article 233 of the Constitution’ (author’s translation; p. 150, nr. 10). The Court has further declared the 2018 election void, which – following the opposition’s line of argument – would indicate that Maduro is neither an “elected president” nor an “inaugurated president”. This is the constitutional argument which underlies Guaidó’s claim to the presidency under Article 233(2). The Supreme Court in exile has repeatedly supported the formation of an interim Government, invoking Articles 233 and 333 of the Constitution (see the Court’s Press Releases of January 11st, 21st and 23rd).
However interesting this debate may be, my focus is not the interpretation of domestic law provisions, but the question of recognition from the standpoint of international law. Civil resistance to Maduro and the existence of a split society crystalize an absence of consent to Maduro’s rule, which – as already suggested by Hersch Lauterpacht in 1947 – serves as evidence of an absence of effective control (p. 115). It is my view that, in the absence of effective control, particular weight must be given to democratic legitimation.
At present, the National Assembly is the only organ whose democratic legitimation is beyond doubt, as acknowledged by numerous States and international organizations. The National Assembly supports Guaidó. Moreover, Guaidó’s mission is to organize fresh elections. Fair fresh elections would allow the world to ascertain the actual will of the Venezuelan people.
Who commands the official journal? (Was crucial in Catalonia)
My professor in International law had askes „Whether or not the Recognition of US to Guiado’s government is valid?“ Is it valid or not?
[…] third relates to democratic norms. Essentially, it means that if the country experiences a breakdown in […]