18 Jul Recognition of Governments: Legitimacy and Control Six Months after Guaidó
On 23 January 2019, Juan Guaidó, the President of the Venezuelan National Assembly, proclaimed himself as the caretaker President of Venezuela in accordance with Article 223 of the Venezuelan Constitution. Guaidó’s Government falls foul of the criterion of effectiveness (control of at least some territory, habitual obedience of a majority of the population, and reasonable prospect of permanence), which remains with Maduro. The claim is purely based on a (plausible) reading of the Venezuelan Constitution, which would give Guaidó democratic legitimacy in circumstances in which Maduro’s (legal) claim to power relies on elections widely held to have been irregular. Close to 60 States have so far recognized Guaidó as caretaker President (see here and here), the latest one being Greece. Recognising Guaidó was a departure from the policy of the majority of States, which is not to afford formal recognition to new governments and, in particular, not to afford recognition to authorities who are not effective. This makes the Venezuelan case an interesting testing ground for democratic legitimacy as a criterion for recognition of governments.
In order to assess the relevance of the practice in relation to Venezuela in this context, it is necessary to determine whether the recognition given to Guaidó was intended as an affirmation of its legal status as the government of Venezuela, as opposed to a form of political support for the Venezuelan opposition. Ralph Janik analysed in this blog the statements of recognition issued by European States and concluded that these were intended as mere political support for the opposition and, as such, as not being legal in nature. But as noted by Talmon, ‘recognition statements alone are seldom a safe guide to the intention of the recognizing State’ and this intention will have to be ascertained from ‘all the available evidence’ (at 42). In this post, we consider some of this evidence. In particular, we will consider the subsequent practice of the recognizing States vis-à-vis Guaidó’s regime in two areas: (i) the form of accreditation of Guaidó’s diplomatic envoys and (ii) the accreditation of Guaidó’s envoys in international organizations. Having assessed whether the acts of recognition were legal rather than political, we can turn, in our conclusion, to consider what the Venezuelan situation means for democratic legitimacy as a criterion for the recognition of governments in international law.
Democratic Legitimacy and Recognition
In the past 25 years, there has been increased interest in the role of democratic legitimacy in the practice of recognition of governments and in particular whether, in addition to effectiveness, democratic legitimacy constitutes a distinct criterion for the legal recognition of governments. Cases like Haiti (1994) or Sierra Leone (1998) generated much controversy as a result of the fact that the international community sided with an ousted yet legitimate government (i.e. one lacking effective control) in order to forcefully restore democracy against an incumbent but illegitimate government. Other recent cases have continued to stretch the merits of this theory to its limits, prompting more nuanced analysis.
In 2011, Alassane Ouattara won the elections in Côte d’Ivoire against Laurent Gbagbo, who refused to step down from power. Ouattara was recognized as Ivorian President and, responding to a request from him, an international coalition forcefully removed Gbagbo from power and installed Ouattara. A similar situation occurred in The Gambia in 2017. Adama Barrow won elections against Yahya Jammeh and when Jammeh refused to step down, ECOWAS, at the request of Barrow, forcibly removed Jammeh from power. In both cases, there had been no coup to oust an incumbent (and therefore already recognized) Government from power. Moreover, in both cases the elected President (Ouattara and Barrow, in each case) had considerably uniform backing from the international community including, crucially, the UN Security Council, despite the fact that they did not exercise territorial control. Following these instances, the idea that a Government’s democratic legitimacy was sufficient for its recognition as the Government of the State in circumstances in which they had no effectiveness gained considerable traction.
With this background, therefore, has Guaidó’s democratic legitimacy been enough to secure him recognition as the Government of Venezuela? As noted above, roughly 60 States have ‘recognized’ Guaidó so far. We assess next whether these recognitions were intended as affirmations of Guaidó’s legal status as President of Venezuela by reference to the subsequent conduct of the recognising States in the areas of accreditation of diplomatic envoys.
Diplomats and Access to Government Buildings
Guaidó has appointed representatives to the various States that have formally recognized his government. This has given rise to two different sets of legal questions: (i) whether those representatives have been recognized as representatives ofthe Venezuelan State; and (ii) whether, as a result, they have been given access to Government buildings in the receiving State. The two questions are connected in that, in normal circumstances, the second one would follow by implication from the first: once an individual receives accreditation as a representative of the State in question, the previously accredited individuals withdraw and cede the premises. But in the practice relating to Venezuela, the two issues have not been addressed consistently thus challenging the legal nature of the recognition given to Guaidó by many of these States.
The practice reflects a wide range of approaches. At one end of the spectrum, there are States like the US and Costa Rica which have both recognized Guaidó’s appointees as representatives of the Venezuelan State and have, therefore, asked Maduro’s ambassadors to leave the country and hand over government buildings. In neither case has this happened without complications. In Costa Rica, following the recognition of Guaidó’s envoy as representative of Venezuela, the Government gave notice to Maduro’s appointees to leave the country within 60 days. Guaidó’s representative, Ms María Faría, took over the embassy within days of this announcement and her supporters prevented access to the premises to Maduro’s ambassadors who were still exercising their functions. The Costa Rican Government, expressing its ‘strong rejection’ for these actions, requested that Ms Faría abandon the embassy until the expiration of the period. In a note sent to the UN Secretary-General, Maduro’s Permanent Representative to the UN held Costa Rica ‘responsible’ for the ‘physical integrity of the diplomatic’ staff and reminded it of its obligations under the VCDR and VCCR. Costa Rica responded that it had complied with its obligations and that any incidents were ‘strictly among Venezuelans’. Ms Faría has now taken over the premises. There have been further difficulties in relation to the ambassadorial residence, which is owned by the Venezuelan State, as it appears that Maduro’s team transferred ownership of the property to a Costa Rican former politician.
In the US, Guaidó’s envoys have taken over governmental buildings in New York and Washington, including the embassy. The take-over of the embassy in Washington was complicated by the occupation of the building by groups of left-wing protesters who had been handed the keys to the premises by Maduro’s staff before they left, in compliance with an order of the US Government, on 24 April 2019. Venezuelan supporters of Guaidó’s government subsequently blocked all access to the building, often confronting and harassing the protesters. The clashes led to nine arrests by the Secret Service. US authorities demanded that the protesters leave the building, but the latter refused to do so arguing they were guests of President Maduro. After cutting off power to the building, US authorities eventually raided the embassy to remove protesters and handed the building to Guaidó’s envoy in mid-May. Maduro accused the US of acting in breach of its international obligations in storming the embassy, and it was reported that the Foreign Affairs Minister was considering responding to the US actions under ‘the principle of reciprocity’. No measures appear to have been taken so far.
At the other end of the spectrum are States that have recognized Guaidó’s envoys as his personal representatives, rather than as representatives of the Government of Venezuela. European States, including Austria, Czechia, France, Germany, Spain and the UK (see here), have followed this approach. The German Foreign Minister clarified that the recognition of Guaidó was a ‘political decision’ and that it would not withdraw recognition from Maduro since he remained in control in Venezuela. This is also the approach taken by some Latin-American States, like Argentina. In these States, there has been no question of transferring governmental buildings as noted in an interview by Dr Vanessa Neumann, the representative to the UK.
In the middle are States which, despite recognising Guaidó’s representatives as those of the Venezuelan State have, nevertheless, not withdrawn recognition from Maduro’s ambassadors or handed premises to Guaidó’s team. This is the case of Brazil which, despite formally recognizing Guaidó’s envoy as representative of Venezuela, has not expelled Maduro’s envoys nor transferred Venezuelan government buildings to Guaidó. In Colombia, diplomatic and other consular premises remain empty: Venezuela’s ambassador, consul and their staff, had been recalled by Maduro in late February 2019 and despite Colombia’s recognition of Guaidó’s envoy as representative of Venezuela, he has not been allowed to take over any of the premises (see here). In Panama both the President and the President elect have extended recognition to Guaidó’s envoys and withdrawn credentials from Maduro’s ambassadors, yet diplomatic premises remain with Maduro’s team. A similar situation exists in the Dominican Republic. Chile, in turn, recognized Guaidó’s envoy as ‘representative if of the Venezuelan National Assembly’, but it has not withdrawn credentials from Maduro’s ambassador.
Another legal testing ground is that of international organizations. As with governments, the process has been convoluted, with little clarity as to what each organization will do. Under general international law, each international organization chooses which government’s credentials to recognize following their own internal and founding documents. In many cases, these decisions boil down to a vote by the organization’s membership. Considering the reality discussed in the previous section, it is not surprising that many organizations remain undecided as to what to do in respect of Guaidó’s appointed representatives.
This is, for instance, the case at the United Nations. Rule 28 of the Rules of Procedure of the General Assembly states that a Credentials Committee of nine member states, currently composed by Antigua and Barbuda, Chile, China, Finland, Ghana, Palau, Russian Federation, Sierra Leone and the United States, examines the credentials of each representative. If a member objects to the admission of a specific representative, the General Assembly decides by a vote (Rule 29). So far, the Credentials Committee has consistently refused to recognize Guaidó representatives, and without any additional support in the General Assembly, any change in this status quo seems unlikely.
On 20 March 2019, during the Second High-level United Nations Conference on South-South Cooperation, in Buenos Aires, the conference’s Credentials Committee accepted Maduro’s representative, following the General Assembly’s practice. Out of 159 accredited States, only the United States and Chile disassociated themselves from the ensuing resolution, expressing support for the Guaidó government. Finland, while joining the consensus, called for elections and called the National Assembly the “legitimate democratic body of Venezuela”. Russia and China, for their part, expressed their support for Maduro, and the Conference went on without further controversy.
The situation is also similar in other UN related organizations, like the IMF and the World Bank. This past April, IMF managing director, Christine Lagarde, stated that the Fund “can only be guided by the membership”. For her, “[i]t has to be a large majority of the membership actually recognizing, diplomatically, the authorities that they regard as legitimate”. At these institutions, though, voting counts as a percentage of shares, not individual membership, with the United States holding up to 16% of voting power at the IMF and World Bank, so while Guaidó’s representatives remain unaccredited, it could change in time if enough powerful States recognize him as president of Venezuela.
The Inter-American institutions have followed a different approach, arguably due to the higher stakes for member States and the weightier influence of the United States. In March of this year, the Inter-American Development Bank (IDB) became the first multilateral organization to recognize a Guaidó representative, the Venezuelan economist Ricardo Hausmann, as Governor. The rules for recognition at the IDB are however very straightforward. Article VIII, Section 2 of the IDB Agreement vests “all of the powers of the Bank” in a Board of Governors composed of one representative for each member State. Considering the Bank’s membership, it is not surprising that this Board sided with Guaidó.
The situation is much more complicated in the OAS, where the Secretary General Luis Almagro, who is deeply and openly partial to Guaidó, has obfuscated the legal outlook by his consistent use of “Twitter diplomacy”. Almagro was very quick to recognize Guaidó’s Presidency (on Twitter) and has since acted as if his government had been accredited before the OAS, going as far as to accepting (again, on Twitter) Guaidó’s withdrawal of Maduro’s denunciation of the OAS Charter. But in practice (and outside the Twitterverse!), the situation is not so simple. Venezuela’s last accredited Ambassador to the OAS was Bernardo Álvarez, who passed away on November 2016. On April 27, 2017, Venezuela communicated its decision to withdraw from the OAS, kick-starting a two-year process to leave the organization. During that period, Venezuela’s seat at the OAS was assumed by its UN Ambassador, Samuel Moncada. According to Almagro, however, Moncada never presented his credentials to the OAS and was therefore not competent to represent his country. Moreover, on February 2019, the US issued a notification restricting Moncada’s movements to New York thus preventing him from attending OAS meetings.
According to the OAS General Assembly’s Rules of Procedure, the OAS Secretary General receives Member-State credentials and submits a report to the Assembly (Rule 27). However, Article 91(f) of the OAS Charter makes his reports reviewable by the Permanent Council. Almagro’s Twitter diplomacy, therefore, did not strictly follow OAS procedures, considering he was not competent to make final determinations on the accreditation of Guaidó’s envoys. The OAS Permanent Council eventually voted to recognize Guaidó’s representative, Gustavo Tarre, on 9 April 2019, prompting a furious response by Amb Moncada at the UN the very next day. Recently, in late June 2019, the OAS General Assembly finally approved Tarre’s appointment, in a much contested and heated session, which the Uruguayan delegation left in protest and in which 8 other States voting against (with 19 in favour and 6 abstentions).
As things stand, therefore, the OAS has formally recognized Guaidó as President of Venezuela. This, however, will present practical challenges in the near future. For instance, on 4 July 2019, Amb. Tarre requested the Inter-American Commission of Human Rights to conduct an in-loco visit to Venezuela. While the Commission has acknowledged receipt of the document, its response shed light on the limitations of Guaidó’s actual power. The Commission requested Amb. Tarre to furnish “all necessary facilities for carrying out its mission”, and asked that his government “guarantees the entry of the IACHR delegation into Venezuela, as well as means of ground transportation and security”, something Guaidó is simply incapable of providing, given his lack of territorial control. It is thus highly unlikely the Commission will be able to visit Venezuela without the cooperation of the Maduro regime, which it does not recognize.
The situation is still unfolding and our analysis limited to only some of the additional evidence that Talmon refers to. We have not considered here representation before domestic courts (for US practice see here) or international tribunals (for ICSID practice see here), or access to State property abroad. So any assessment made at this stage is necessarily tentative. Nevertheless, given the upcoming 6 month anniversary of Guaidó’s proclamation on 23 July, this seems like a good moment to take stock of developments so far.
Despite their ‘recognition’ of Guaidó, few States have been willing to accredit his envoys as representatives of the Venezuelan State and, relatedly, withdraw the accreditation of Maduro’s diplomats. Even fewer have been willing to take steps to hand over to Guaidó’s envoys access to Government buildings in the receiving State’s territory. Acceptance of Guaidó’s envoys in international organizations has likewise been far from successful. From this practice we may infer that, save for a few instances, the majority of the recognising States, perhaps even those that accorded Guaidó recognition as the Government of Venezuela, did not intend to recognize Guaidó’s legal status as President of the country. Nevertheless, their recognitions and the acceptance of his envoys as his representatives have shown these States’ willingness to entertain diplomatic contacts with the opposition and, thereby, provide them with international backing.
Guaidó’s claim to power in Venezuela has thus been considerably less successful than the claims of Ouattara and Barrow in Cote d’Ivoire and Gambia respectively: about a third of States in the international community have recognized him and the majority of these were merely political. His democratic legitimacy seems to have been – so far – insufficient to trigger or at least secure a more permanent legal (as opposed to merely political) recognition. One relevant factor may have been the fact that while Guaidó is an elected representative in the Venezuelan National Assembly, unlike Ouattara and Barrow he did not win Presidential elections. This said, the trigger for his claim to the role of caretaker President pursuant to the rules of Presidential Succession included in Article 223 of the Venezuelan Constitution stems precisely from the fact that Maduro had recently won a Presidential election among claims of fraud by members of the opposition and other States, including the Lima Group (see here and here). Another potential factor is that, his claim has come at a time of increasing fraction in the international community, with the United States frequently going against China and Russia in international fora.
There seems to be, therefore, both a role and a limit to democratic legitimacy, depending on the circumstances. A sort of mesh where a relationship between effectiveness and legitimacy determines the likelihood of recognition. Thus two contenders in similar circumstances, both of whom have democratic legitimacy but are not effective, might not both achieve the same degree of recognition: while Barrow was widely recognized as the ruler of the Gambia, Guaidó has not been recognized as the ruler in Venezuela. In the words of Brad Roth, “a thorough-going democratic legitimism is unpromising as an international norm (…) [y]et a pluralist international order, while generally deferential to the outcome of local power struggles, does not require acceptance of whatever blatant thuggery manages to assert itself. ‘Effective control through internal processes’ grounds a rebuttable presumption”. Guaidó’s rebuttal has so far been unconvincing. But recognition is often a gradual process, and purely political recognition may become legal in time – it remains to be seen whether Guaidó will be able to sustain his claim for long enough.