European Recognition Practice on Venezuela: The Devil in the Details

[Ralph Janik teaches international law at the University of Vienna, Faculty of Law and Webster Private University Vienna. He specializes in the interplay of international law and international relations.]

Guaidó versus Maduro. Virtually every state has had something to say about the political stalemate in the once-third oldest democracy outside of the industrial world. We are once again witnessing a clash of different understandings of sovereignty and the law on recognizing foreign governments. Interestingly enough, however, the EU and its Member States seemingly have not (yet) recognized Guaidó as Venezuela’s de iure president.

At the beginning, the situation in Venezuela has been a drama in three acts: at the beginning of the year, the Lima group openly rejected the legitimacy of Maduro’s second term. A week later, on 11 January 2019, the Venezuelan National Assembly declared itself as the sole legitimate power of Venezuela “on the international level.” On 23 January 2019, Juan Guaidó declared himself president and US Secretary of State Mike Pompeo officially stated that the US “recognizes Juan Guaido as the new interim President of Venezuela, and strongly supports his courageous decision to assume that role pursuant to Article 233 of Venezuela’s constitution and supported by the National Assembly, in restoring democracy to Venezuela.” (Canada made a substantially similar statement on this day). Since then, countless states have voiced their support – in varying degrees, however – for Guaidó, while a smaller group (with Russia and, to a lesser extent, China at the forefront) has accused the US in particular of violating Venezuela’s sovereignty.

Who’s the boss in Venezuela? Legal versus political recognition redux 

Recognition practice in Venezuela bears striking similarities to that during the Libya civil war or Syria: referring to Maduro’s and Guaidó’s legitimacy, most of the statements walk the thin line between political support and recognition in a legal sense.

As indicated above, the US and Canada were the first states to have recognized Guaidó as the de iure president. They are actively working together with Guaidó to “restore democracy” in Venezuela. National Security Adviser John Bolton even made it clear that “there will be serious consequences for those who attempt to subvert democracy and harm Guaido.” (it must obviously born in mind that, due to his rank in the Trump administration, he does not speak on behalf of the US in the sense of international law).

Meanwhile, as will be shown below, the EU and its Member States have remained more reluctant. In addition, states like Austria repated the standard phrase that they only recognize states, not governments.

However, that is only half of the story. In the long run, implicit recognition can only be avoided by breaking off all diplomatic relations. At some point, decisions have to be made: whose diplomats to accredit? Who is being invited for official visits, whom to give access to a state’s property and assets located abroad?

Quo vadis, Europe?

At the 26 January Security Council meeting, the US and the European states set an eight-day deadline after which the European states would recognize Guaidó.

As usual when it comes to recognition, the devil is in the details. The UK made the most straightforward statement (“we will recognize [Guaidó]”]. Interestingly enough, one can also already see signs of Brexit on the horizon as the British representative stated that “the United Kingdom stands with the European Union” as if it were already no longer part of it.

The other European Security Council members were a (tiny) bit more restrained. Emmanuel Macron had announced that France was “ready to recognize Guaidó.” (Germany made a similar statement). Belgium, then, was somewhat more cautious as it stated that it would recognize “the constitutional role of the President of the National Assembly” while Poland also refrained from being overly direct when stating that it “will take further action, including on the issue of recognition of the country’s leadership, in line with article 233 of the Venezuelan Constitution.”

Europe still lacks a common voice

4 February thus proved to be a decisive date. Since the deadline had passed, nineteen European states (including the above-mentioned Security Council members) then stated that “they acknowledge and support Mr. Juan Guaidó, President of the democratically elected National Assembly, as President ad interim” pending free and fair elections. Most importantly, this declaration nevertheless avoided to use the ‘r-word.’

Since not all states joined this declaration, Europe has once again been criticized for lacking a clear and uniform position. Meanwhile, the official statements by EU representatives leave some room for interpretation. Above all, High Representative of the EU for Foreign Affairs and Security Policy Federica Mogherini, tried to preserve at least some unity and coherence among the EU Member States and their foreign policies. Yet, she could not do more than re-emphasize that they had never recognized the last Venezuelan presidential elections as legitimate and that “we recognize as the legitimate institution of the country the National Assembly.”

The ‘r-word’

Interestingly enough, however, a number of Foreign Ministers (the Netherlands’s Stef Blok, Czechia’s Tomas Petricek, Poland’s Jacek Czaputowicz, or Spain’s Borrell Fontelles) were less reluctant and explicitly spoke of recognizing Guaidó (see Alonso Gurmendi’s detailed collection of statements made on Twitter).

What now? What to make of all of these statements like these? Since Guaidó does not exercise any effective control whatsoever, the foreign ministers’ tweets cannot be interpreted as de facto recognition – ie, as we know from good old Shaw’s International Law, a somewhat ‘hesitant assessment of the situation, an attitude of wait and see.’ Upon closer inspection, Europe thus essentially remains in the area of political recognition – symbolic support, possibly tied with financial or other types of assistance (like allowing territory to be used to establish offices and entertain contacts without having to fear disruptions or even attacks by the incumbent government).

More than words

At the time of writing, the EU and its Member States are still negotiating on the next step concerning the treatment of Venezuelan diplomats or possible high-level meetings. All we have this far are a number of powerful statements. However, words must be put into deeds when it comes to recognition. For the time being, Europe still seems to consider Maduro as the de iure, yet illegitimate president of Venezuela.