Recognition of the Venezuelan National Assembly under International Law

As I noted in a recent post, on January 4^th, the Lima Group decided not to recognize “the legitimacy of the new presidential term of Nicolas Maduro” as President of Venezuela. On January 11^th, Venezuela’s National Assembly declared itself the “sole Legitimate Power of Venezuela before the International Community” (all unofficial translations my own). Soon after, the Assembly’s Chairman, Juan Guaidó, called upon the international community to “achieve the effective establishment of the transitional Government”. Barely 20 minutes later, OAS Secretary General, Luis Almagro (not a stranger to foreign policy blunders) tweeted “welcom[ing] the assumption of [Guaidó] as interim President of Venezuela” (something he didn’t actually do).

Since then, a series of states have issued various kinds of statements offering their recognition and/or support for Venezuela’s National Assembly as the “sole democratically elected organ” (Argentina), the “sole legitimate and democratically elected state power” (Chile), or the “only legitimate branch of government” (United States) in Venezuela. These different positions raise the question of what exactly the relationship between these countries and Venezuela is, especially regarding the potentially competing presidential claims of Nicolás Maduro and Juan Guaidó. What does a state mean when it says that an entity other than the President is the “sole” democratic/legitimate organ of government?

A similar problem arose during the Libyan and Syrian civil wars, when various Western states granted different levels of recognition to the Syrian Opposition Coalition and the Libyan National Transitional Council as the “sole legitimate representative of the Syrian people” or as a “legitimate representative of the Libyan people”, among other formulations. At the time, various scholarly articles (see here, here, and here) addressed the matter, concluding, in general, that “[r]ecognition as the sole legitimate representative is clearly intended to have political [not legal] effects”. These recognizing states continued to have diplomatic relations with the Assad Government and did not actually de-recognized him. In Steven Talmon’s words:

“The political act of recognition of an opposition group means that the recognizing State is willing to enter into political and other relations with that group. Political recognition is within the arbitrary discretion of the recognizing State and may be made subject to various conditions. (…) [It has] only limited practical effect”.

The Lima Group statement, while issued outside the context of a war and with regards to a branch of government, seems to have a similar intention. The Lima Group Statement is clear in that it only refuses to recognize the legitimacy of Maduro’s rule, not its legality. Recognizing the Assembly as legitimate, therefore, does not replace the Maduro Executive, it rather reinforces its illegitimacy as a de facto government. If Lima Group states wish to de-recognize Maduro and recognize Guaidó instead, they cannot rely on the Group’s statement to do so. Subsequent practice to this regard, however, has been quite convoluted.

Take, for example, the Colombian statement of January 13^th. It says that Colombia “does not recognize any legitimacy to Nicolas Maduro’s new Presidential term” and that it “ratifies its full recognition to the National Assembly (…) as democratically elected constitutional organ in Venezuela”. Up to this point, the declaration can be seen as eminently political: Maduro is an illegitimate President, but a President nonetheless; and the National Assembly is a democratically elected organ, but not the government. Immediately after, however, the statement goes on to say it “supports the [Assembly’s] exercise of all its competences, including those derived from article 233 of the Constitution of the Bolivarian Republic of Venezuela”. This article deals specifically with the “absolute absence” of the President due to, among other things, an order of the Supreme Court of Justice. Last year, the “legitimate” Supreme Court – in exile since 2017 and recognized by the Lima Group’s January 4^th statement – issued a judgment removing Maduro from the Presidency. If read jointly with Colombia’s statement, it seems to imply Colombia’s decision to accept the Supreme Court’s determination, which would mean more than just not recognizing Maduro’s legitimacy. The apparent tacit contradiction between paragraph one (refusing to recognize legitimacy to Maduro’s rule) and paragraph two (implying Maduro is no longer legally President) simply makes the statement confusing.

Another unclear stance is that of Brazil. In a note dated January 10^th, Brazil’s Foreign Ministry stated “its full support for the National Assembly, a democratically elected constitutional institution, at present responsible for the executive power in Venezuela according to the country’s legitimate Supreme Court of Justice”. A few days later, on January 12^th, Brazil issued a new statement, on the Venezuela-Guyana territorial dispute, noting that “the Brazilian Government will be ready to work together with Venezuela towards a fruitful dialogue with Guyana, and vice-versa, when there is a legitimate government functioning in Caracas. The Brazilian Government also reiterates its support for the decision of the Chairman of the National Assembly to constitutionally assume the Presidency of Venezuela” (italics added).

Some media outlets, like Reuters, have interpreted these statements as a declaration that Brazil recognizes the Assembly as the Government of Venezuela and Guaidó as interim President. Both statements, however, are contradictory. The January 10^th statement declares the National Assembly “responsible for executive power”, arguably recognizing it as government. The January 12^th statement, however, clearly says that, in Brazil’s opinion, there is currently no “legitimate government” functioning in Venezuela, which would mean the Assembly is not a government yet. Given that there is still no indication that the Brazilian diplomatic corps is disregarding the Maduro administration, it remains unclear what exactly is the Brazilian Government trying to convey with these statements.

Colombia and Brazil’s lack of clarity may in fact be the product of an often unaddressed, but fundamental limitation of the National Assembly’s legitimate position: its lack of effective power. To function as a government that can be engaged by Bogota and Brasilia, the National Assembly would need some semblance of control over the country. As was patently evident by Guaidó’s short-lived incarceration this past Sunday, it simply doesn’t. Once again following Talmon:

“A claimant to government status must be able to exercise effective control over the entire or, at least, a large majority of the territory of the State concerned, and must be likely to continue to do so. For a claimant to be in effective control of the State’s territory, it must be in possession of the machinery of State (…).”

This presents a conundrum to Brazilian and Colombian diplomats. Legally recognizing the Assembly would mean accepting that a weak and vulnerable entity has control over the massive powers of government and foreign affairs. Unlike cases of governments “in exile” or cases of civil war, where the recognizing state no longer expects to have continuous diplomatic exchanges with the unrecognized government, Brazil and Colombia likely still see some benefit in having diplomatic relations with the party that effectively controls the country, which would explain why they haven’t met their statements with concrete actions.

This is, perhaps, why Paraguay’s straight-forward approach stands out from the rest of the region. On January 10^th, it “decided not to recognize the new presidential term of Mr. Nicolás Maduro”, without adding any qualifiers as to legitimacy and reaffirmed its condemnation of the breaking of constitutional order and rule of law in Venezuela, “giving full support and recognition to the National Assembly, legitimately elected in December 2015”. Based on these considerations, Paraguay simply broke diplomatic relations with Venezuela. While clear, however, Paraguay’s position probably means it will have a less active role in the ultimate solution to the Venezuelan crisis, something the remaining Lima Group members would likely want to avoid.

There seems, therefore, to be three clearly distinct positions with regards to Venezuela within the Lima Group January 4^th signatories: (i) states expressing political recognition of the Assembly and political condemnation of Maduro, but without breaking diplomatic ties or de-recognizing his government (Chile, Argentina, Peru, etc.); (ii) states seeking to (eventually?) recognize the National Assembly instead of Maduro (Colombia and Brazil); and (iii) states that broke relations with Venezuela altogether (Paraguay).

If the Lima Group is truly seeking for ways to effectively pressure the Maduro regime, it will need a more uniform position. Given the Assembly’s relative weakness, the Maduro regime will likely continue to be a necessary party to any diplomatic solution. If Lima Group members still believe in a diplomatic solution, they will need to maintain contacts with his government, as well as with the National Assembly. Under such conditions, position (i) above – i.e. political recognition for the Assembly without breaking diplomatic ties – is perhaps the best course of action. If they don’t, then position (iii) – i.e. breaking diplomatic relations – might be more adequate. For the time being, and unless (or until) the National Assembly’s situation changes, option (ii) – implied legal recognition of the Assembly – seems to be creating more uncertainty than clarity.