Venezuela Beyond the Use of Force and Maduro’s Immunity

[Federico Jarast is Jefe de Trabajos Prácticos at Buenos Aires University School of Law. He has served as Legal Adviser at the General Direction of Legal Affairs of the Argentine Presidency and worked as an Associate at Guglielmino Derecho Internacional.]

In less than a week, 2026 has proved that it will spare no efforts in shaking the foundations of international law. For those of us who still believe there is at least some worth in the international legal order as we have known it until 2025, there is no time to waste.

The “I do it because I can” rationale has always been present in international relations; but in the narrower realm of international law, all acts have been ineluctably coupled with at least a resemblance of legal justification, no matter the flimsiness of the arguments.

One of the most astounding aspects of the recent actions undertaken by the United States in the territory of Venezuela is that, so far, no legal explanation has been articulated by the Trump Administration; a point in which I have to respectfully disagree with Nikolas Rajkovic. In terms of international law, Operation Absolute Resolve entails two accurate hits and the potential emergence of an untamed doctrine. Considering that the former have been addressed elsewhere, I will only refer to them briefly; delving in depth into the intricacies of the latter.

Two Accurate Hits

The first blow to the international legal order comes from the outright challenge to Article 2(4) of the Charter of the United Nations. There is no questioning that the military actions carried out on January 3, 2026 are a use of force against the territorial integrity and political independence of the Venezuelan State, besides being inconsistent with the purposes of the United Nations. Furthermore, it seems that some of President Trump’s declarations following the military operation amount to open threats of continued uses of force, also at variance with the organization’s most prominent tenet.

Since at least 1945, the prohibition of the use of force has constituted the backbone of the United Nations and, to an extent, international law at large. Needless to say, Operation Absolute Resolve is far from being the first time that such prohibition has been disregarded; the novelty comes from the manners, as such unconcealed defiance is certainly unprecedented. The absolute lack of legal justifications reinvigorates the debates surrounding Article 2(4) of the Charter of the United Nations; not in terms of the exceptions to which it is subject but on its utter death, a discussion that confronted Thomas Franck and Louis Henkin more than half a century ago and has made it back to the limelight.

The second blow to international law might be a bit murkier, though by no means less concerning. The International Law Commission’s (ILC) program has included the immunity of State officials from foreign criminal jurisdiction since 2007. Looking at the whole situation of Venezuela from the lens of the First report on immunity of State officials from foreign criminal jurisdiction, issued as recently as 2024, Nicolás Maduro was, undoubtedly until January 2, 2026, a “State official” (draft Article 2(a)) enjoying “immunity ratione personae from the exercise of foreign criminal jurisdiction” (draft Article 3), which covers “all acts performed, whether in a private or official capacity” (draft Article 4(2)).

The recent capture of Maduro sets a dangerous precedent. States able and willing to prosecute before its own courts the sitting Head of a foreign State might feel entitled to do so. Furthermore, such States could even blur the lines of immunity ratione materiae as, according to last year´s Second report on immunity of State officials from foreign criminal jurisdiction, the charges against Maduro are not even included in the list of crimes under International Law which would preclude the application of such immunity (draft Article 7(1)). 

It will be interesting to see how the ILC manages to vindicate the validity of its Draft Articles during its Seventy-seventh Session (2026) in an attempt to reconcile the leeway with which the United States has acted with the emergence of rules of law acceptable for the international community as a whole.

The Emergence of an Untamed Doctrine

Though politically sensitive, the recognition of governments is actually governed by international law; and even though there are conflicting doctrines, not everything is permissible.

In broad terms, the different theories can be gathered in two groups, each of them inspired by a different principle. The mutually opposed principles of effectiveness and legitimacy have sparked academic debates with significant political underpinnings. The former means that “[t]he fact that a person or a group of persons governs is the decisive test of the existence of the government and its right to rule”, which implies that a foreign State “does not pass judgment upon the form or origin of that government” (p. 117). The latter is based on the understanding that “every government that comes to power in a country depends for its legality, not upon mere de facto possession, but upon its compliance with the established legal order of that country” (p. 105).

In the Latin American context, the doctrine of effectiveness has been known as the Estrada doctrine, while the doctrine of legitimacy has been labeled the Tobar doctrine. As I have already analyzed the validity of these doctrines within the Americas elsewhere, suffice it to say for the purposes of this post that even though the Tobar doctrine has prevailed in formal terms, many of Latin America´s most recent events can only be explained from the perspective of the Estrada doctrine.

Putting the focus on the United States, it must be noted that until the early twentieth century, it embraced the doctrine of effectiveness, usually associated with Secretary Jefferson. Since the first years of the last century, American policy shifted towards the doctrine of legitimacy, as enshrined in President Wilson’s 1913 Mobile speech.

In relation to the United States´ attitude towards the Maduro government, it should be recalled that during his first term, President Trump officially recognized “the President of the Venezuelan National Assembly, Juan Guaido, as the Interim President of Venezuela”. Five years later, the United States recognized Edmundo González as the winner of the July 28, 2024 election. The lack of recognition of the Maduro government by the United States has been, in strict theoretical terms, consistent; and the argument underlying such a position has always been based on legitimacy. 

For its part, the Inter American Court of Human Rights recognized in the Chirinos Salamanca y otros vs. Venezuela case full legal effects to the 2019 ratification of the American Convention on Human Rights by the Interim President of Venezuela, an act that was regarded as “carried out by an authority duly recognized by the political organs of the OAS” (para. 55; author’s translation).

In this sense, it cannot be ignored that the lack of recognition of Maduro was not limited to the United States;: several States and international organizations had adopted a similar stance. Still, not recognizing a government does not imply the denial of the State´s existence, whose sovereignty remains unscathed. By the same token, a State that refrains from recognizing another State´s government is not entitled to depose it.

Looking closer at the relation between the United States and Venezuela, it is worth noting that back in 2019, President Trump affirmed that he would “continue to use the full weight of United States economic and diplomatic power to press for the restoration of Venezuelan democracy”. In stark contrast, seven years later he allowed for a direct military operation in Venezuelan territory leading to Maduro´s abduction. Neither restraint nor democracy seem to be part of the 2026 agenda.

Immediately after Maduro’s fall, Corina Machado (the most recent Nobel Peace Prize laureate and a prominent political opponent) called for the recognition of González, the alleged winner of the 2024 presidential election; a proposal readily disdained by President Trump. Such blatant contradiction seems to suggest that according to the United States, González was “Venezuela’s rightful president” only until January 2, 2026. His current status seems to be that of a former rightful President who never made it to power and most likely will never make it. Was his government lately de-recognized by the Trump administration?

On the contrary, President Trump decided to recognize Delcy Rodríguez as the ruler of Venezuela. It cannot be neglected that Rodríguez has been in office since the times of Hugo Chávez. Even though her latest position was Vice-President of Venezuela, she has previously headed several ministries, such as Foreign Affairs, Economy and Finance and Petroleum. She has also presided over the Constituent National Assembly, and interestingly enough, her brother is the current President of the National Assembly. Among many Bolivarian achievements, the signing of the 2023 Memoranda of Cooperation with Iran deserves to be highlighted. This hard-core Maduro supporter, who keeps referring to the ousted leader as Venezuela´s “only president”, was the one chosen by the Trump administration to deal with. I personally find it challenging, to say the least, to reconcile this move with the theory of legitimacy. It seems that after Operation Absolute Resolve, legitimacy was superseded by effectiveness.

Conclusion

The traditional doctrines of recognition of governments (effectiveness and legitimacy) are proving inadequate to explain the United States’ attitude towards the government of Venezuela from an International Law perspective. The novel aspect of the current situation is that the Trump administration has found a way to disregard both doctrines at the same time without coming up with a new one to replace them. At this juncture, it is clear that the United States is heading towards a blind alley. It is not about following one principle or the other, or interpreting either of them in a certain way. The overarching issue is whether the recognition of governments will remain within the realm of International Law.

Almost eight decades ago, it was stated in relation to the tests apposite to the recognition of governments that “all of them-whether based on the requirement of effectiveness or otherwise-have, as a rule, been followed in pursuance of generally applicable principles laid down by international law”, adding that “States do not claim to be entitled to act in this matter by exclusive reference to consideration of national interest and convenience” (pp. 169-170).

It is with nostalgia that I wonder whether these words still hold true in 2026.