Estrada Redux: Mexico’s stance on the Venezuela Crisis and Latin America’s evolving understanding of non-intervention

On January 4^th, the Lima Group – an informal gathering of 14 states seeking multilateral solutions to the humanitarian, democratic, and economic crisis in Venezuela – issued its latest statement, on the upcoming inauguration of Nicolás Maduro as President of Venezuela (see here for Spanish version). The statement called for the non-recognition of the legitimacy of Maduro’s government and called upon him to temporarily transfer the Executive Power to the democratically elected (but arbitrarily suspended) National Assembly.

The statement was signed by all member states except for Mexico. Mexican Foreign Sub-Secretary, Maximiliano Reyes, explained his country’s position in a speech prepared for the occasion, in one of the first glimpses of recently elected President López Obrador’s foreign policy. In one key passage, he said:

“The Government of Mexico, in faithful compliance of the constitutional principles of foreign policy, will abstain from issuing any kind of pronouncement regarding the legitimacy of the Venezuelan government. Self-determination and non-intervention are constitutional principles that Mexico will follow” (my translation).

Many, including Human Rights Watch, have seen Mexico’s position as ideologically-driven, seeking to shield a like-minded leftist leader from international pressure. Affinity may certainly be a factor in Lopez Obrador’s decision, and it would be wise to pay close attention at how consistently this new non-interventionist policy is applied across the ideological board. At the same time, however, Lopez Obrador’s policy does have longstanding roots, not just in the Mexican, but in the Latin American international law tradition, and raises interesting questions as to the region’s understanding of the principle of non-intervention.

Throughout the early 20^th century, especially during its famous Revolution, Mexico’s internal affairs were continuously affected by the United States’ decision to favour one or another warring party. In 1914, US President Woodrow Wilson refused to recognize the de facto government of Victoriano Huerta and, after his ousting, refrained from officially recognizing Venustiano Carranza’s rule, seriously interfering in the course of the war and affecting Mexico’s sovereignty in the process. In 1915, for instance, Huerta’s troops mistakenly detained US sailors in the Mexican port of Tampico. While they were promptly released, Admiral Henry T. Mayo, commander of the American Fleet in the region, demanded a formal apology from the Mexican garrison, in front of a raised US flag and to the sound of a 21-gun salute (in Mexican territory!) (see here, p. 99). When Huerta refused to salute a country that didn’t even recognise his rule, Wilson sent one thousand marines to take the key port of Veracruz, crippling Huerta’s ability to fight and changing the course of the war. The occupation of Veracruz is to this day a sour recollection for the Mexican people.

As a response, in 1930, Mexico’s Foreign Secretary, Genaro Estrada, proposed a policy of non-intervention for Mexican foreign policy, known today as the Estrada Doctrine. He said:

“After a very careful study of the subject, the Government of Mexico has transmitted instructions to its Ministers or Chargés d’Affaires (…), informing them that the Mexican Government is issuing no declarations in the sense of grants of recognition, since that nation considers that such a course is an insulting practice and one which, in addition to the fact that it offends the sovereignty of other nations, implies that judgment of some sort may be passed upon the internal affairs of those nations by other governments, inasmuch as the latter assume, in effect, an attitude of criticism, when they decide, favorably or unfavorably, as to the legal qualification of foreign regimes”.

The Estrada Doctrine was an essential component of Mexican foreign policy throughout the 20^th century. The doctrine, however, would never be applied with absolute consistency, and as time went by, particularly in the 21^st century, Mexico slowly began to move away from a strict interpretation of non-intervention. In the words of Mexican scholar Juan de Dios Gutiérrez Baylón:

“Mexico is a state that considers itself the paladin of non-intervention by self-appointment. In reality, its behavior, while tending towards the respect of such doctrine, has presented the same erratic notes common to the international community” (my translation).

Mexico broke ties with the Pinochet government in Chile, accused Central American Presidents of being tyrannical, and openly criticized the Franco dictatorship in Spain (see here). By the turn of the century, questions related to human rights and democracy began to take centre-stage in Mexican foreign policy. Mexico joined the UN Human Rights Commission and, importantly, began to engage in regional efforts to promote democratic rule in the Americas. In 2001, the OAS adopted the Inter-American Democratic Charter. According to its text:

“When the special session of the General Assembly determines that there has been an unconstitutional interruption of the democratic order of a member state, and that diplomatic initiatives have failed, the special session shall take the decision to suspend said member state from the exercise of its right to participate in the OAS by an affirmative vote of two thirds of the member states in accordance with the Charter of the OAS.”

Participating in such a decision would unquestionably go against the spirit of the Estrada Doctrine, as it specifically passes judgment on another state’s internal affairs. In June 2018, however, Mexico did exactly that, voting in favour of OAS Resolution 2929 (XLVIII-O/18). This Resolution declares “that the electoral process as implemented in Venezuela, which concluded on May 20, 2018, lacks legitimacy, for not complying with international standards, for not having met the participation of all Venezuelan political actors, and for being carried out without the necessary guarantees for a free, fair, transparent and democratic process”, calling it “an unconstitutional alteration of the constitutional order”. The Resolution ultimately decides to activate the mechanisms of the Inter-American Democratic Charter to Venezuela, including a possible suspension.

It was in response to this “interventionist” policy that Lopez Obrador’s campaign called for a return to the Estrada Doctrine. And it’s against this background that Mexico’s decision not to adhere to the Lima Group’s statement should be read.

A return to a strict interpretation of the Estrada doctrine, however, raises serious questions in today’s human-rights-oriented, globalized world. It is not acceptable for a State (especially a Latin American state) to turn a blind eye to human rights violations and democratic crises. The Inter-American Human Rights System and Inter-American Democratic Charter are now essential components of the regional ordre public. This has become evident from the experience of other Latin American states, also trying to carve an understanding of non-intervention that respects modern human rights and democratic standards. In the words of Chilean jurist, Edmundo Vargas Carreño:

“Concerning the measures that States can adopt regarding those States that seriously violate the human rights of the individuals under their jurisdiction, provided said actions are in conformity with other concepts of international law, they cannot be considered unlawful interventions” (my translation).

The question in the minds of many Latin American diplomats, therefore, is what exactly counts as an action in conformity with international law, from a Latin American, non-interventionist perspective. The answer, one might venture, has changed through time, adapting to the exigencies of Latin America’s strong commitment to human rights and democratic values. This is why non-intervention now coexists with the Inter-American Democratic Charter, as seen above. The Lima Group’s statement and Mexico’s opposition to it, take place in the context of one such particularly hot-topic discussion: economic sanctions.

Every year, the Human Rights Council approves a Resolution on “unilateral coercive measures and human rights”. This resolution calls upon states to stop adopting unilateral measures “of a coercive nature with extraterritorial effects, which create obstacles to trade relations among States” and condemns use of these measures “as tools of political or economic pressure against any country, particularly against developing countries, with a view to preventing these countries from exercising their right to decide, of their own free will, their own political, economic and social systems”. Traditionally, this resolution has received strong support from Latin American states. In 2018, however, Brazil abstained, stating that “[t]he situation in Venezuela had created a dilemma with regard to Brazil’s traditional position on the matter”, adding that “[i]n Venezuela threats against human rights defenders were the result of the policies administered by the Venezuelan Government itself, such as using access to food to influence the popular will”, prompting Venezuelan complaints. Mexico also abstained, citing disagreement with paragraph 24 of the Resolution, which requested the Special Rapporteur on the matter “to submit a proposal of elements for the elaboration of a new United Nations declaration on the negative impact of unilateral coercive measures on human rights”.

At the time, this hesitation by Latin America’s two diplomatic powerhouses seemed a cautious way to signal discomfort with regards to the Venezuela crisis, but without changing their longstanding policy of support for the resolution. The Lima Group’s statement, however, seems to hint that there might be something more significant at work, a slow-moving shift, driven by these states’ need to address a crisis they seem unable to solve through diplomacy and dialogue alone. Indeed, Operative Paragraph 13(B) of the statement agrees to:

“In accordance with respective national legislations, prevent high-level Venezuelan officials from entering the territory of Lima Group members and establish lists of natural and legal persons with whom financial and banking institutions of member countries should not conduct operations or should undertake special due diligence, preventing their access to the financial system, and, where applicable, freezing their funds and other assets or economic resources”.

This is an unusual statement to make by a group of ten Latin American states (and Canada, Guyana and St. Lucia). It means that while Mexico is going back to a strict interpretation of the Estrada Doctrine (with all the problems that will entail), Argentina, Brazil, Chile, Colombia, Costa Rica, Guatemala, Honduras, Panama, Paraguay, and Peru seem to be moving slightly in the opposite direction, forced by the exigencies of the Venezuelan crisis. The question is whether this will be a Venezuela-specific development or a more fundamental change in the way that Latin America understands international law. International observers would be well advised to follow this evolutionary process closely.