A Principled Take on Representation: Apropos of Chirinos Salamanca et al. v. Venezuela

[Nicolás Carrillo Santarelli is an Assistant Professor at the University of Cagliari, Italy, and holds a PhD degree in international law and international relations from the Universidad Autónoma de Madrid and Master’s degrees in Modern and Contemporary Philosophy from the University of Luxembourg and Human Rights from the University of Alcalá.]

Perhaps it would be convenient to start this text by laying out what it is not, so as to better arrive at what it seeks to argue. It is not a criticism of positions such as those of Francisco J. Quintana and Justina Uriburu, whom I admire, and whose arguments in a recent blog post of theirs on the preliminary objections decision by the Inter-American Court of Human Rights in the Chirinos Salamanca and others case present many persuasive arguments —even if I ultimately think that an alternative approach is preferable.

This is what the post I am writing is ultimately about: choices. Interpretive ones included. They are purportedly about telling what the right or better constructions are, those more in line with positive law. But I think that they may also and perhaps instead be more telling about our unconscious and programmed beliefs about what such a law is about or permits. The famous Lotus case ultimately deals with what the foundational aspects of volition and duty: is what is not forbidden allowed, or is only what is authorized allowed instead?

Similarly, this case engages, in my opinion, with the following aspect: representation. We are regretfully used to either a cynical or pragmatic world of international relations —and oftentimes both converge, even with cruelty, as recent events worldwide show. But truly, one might ask given the polysemy and technicality of terms: can a despotic regime that has trampled upon democratic principles and human rights —which are interlinked, as the Court has said since its earliest advisory opinions—be truly deemed to represent the will of the Venezuelan people? Fictions are meant to serve mental representations, not to replace them in ways that pander to power. Can such a regime be truly the one that speaks for and on behalf of Venezuelans? Doubtfully. They are silenced by it. Let us briefly look at these identical passages from their 1987 eighth and ninth advisory opinions (on habeas corpus and on judicial guarantees in states of emergency, respectively): 

The concept of rights and freedoms as well as that of their guarantees cannot be divorced from the system of values and principles that inspire it. In a democratic society, the rights and freedoms inherent in the human person, the guarantees applicable to them, and the rule of law form a triad. Each component thereof defines itself, complements, and depends on the others for its meaning.

Certainly, the way to counter abuses against democracy which erode human rights guarantees is not the adventurism of militarist campaigns that may shed more blood and serve other covert interests, such as recent veiled threats by the U.S. regime that would be at odds with both the law on the prohibition of the use of force and human rights law. Perhaps something that is convenient to do is to ask what the interpretations one assumes would be if things were different, with different ideological actors at stake: say, a right-wing dictatorship silencing and persecuting left-wing opposition, who resorting to constitutional venues makes a choice about aspects pertaining to the law of treaties.

This is a principled, and not a self-serving or ideological-serving, way of seeing things. And it may well be that some would choose—unconsciously so, while proclaiming that they are being objective— a different possible interpretation, while others who are consistent would rely on the same one as to whom represents the State. Such consistency is to be commended, given how often it is missing…

But even then, one should ask if the coherent response would be an accurate reflection of the law or, rather, of what one thinks the law is about, foundationally. Phenomenology, with the authentic and inauthentic modes of being discussion, posits how what we see in the world is oftentimes the product of what we have not only chosen but also been ingrained with through social assimilation and other dynamics that shape our perceptions – and Foucauldian ideas about official education (legal included, one might say) involving power-dynamics come to mind in this regard, considering formal legal education. And I insist: what is a representative? If the word is to mean something in a paradigmatic political sense, the etymological notion of repraesentare as being about exhibiting or aspects of likeness suggests that the fact that the will of a State coincides with what the construct we call “State” really shows what that polity or social body deems appropriate to express internationally. Cases such as the one rendered by the Inter-American Court should make us think about our preconceptions and beliefs about terms that could perhaps be understood differently, in ways more in line with prudential and ethical possibilities that are not replacing positive law but in accordance with what it permits – when so – and bring the different normativities in line. Increasing legitimacy, acceptance, and the positive transformative and expressive potential of the law.

Furthermore, governments are but one of the elements of Statehood, alongside territory and population, as the concept is currently understood. Should the latter not play any role? Ought the first of those I have mentioned entirely divorced from it be not only fictitiously but absurdly considered to speak for it, especially when the State has accepted to be constrained by democratic governmental guarantees? After all, a State can exercise sovereignty to accept limitations on the exercise of its power; and it has accepted them to honor democratic elements in the Inter-American one. This does not mean that an illegitimate and abusive government can regretfully not misuse its will. But if constitutionally valid decisions have led other bodies that represent the State’s will to amend flawed expressions of one of its branches, why not consider them?

I am aware of the fact that the problematic principle of effectiveness would say that ultimately those who hold onto power are to be deemed the governmental “’representatives” – in a hollow sense from a political ethical point of view, in my opinión – if only perhaps to favor the certainty and stability of accords and clarity that international law claims to hold so dear.

Nevertheless, it is also correct to say that regional international law can and has developed notions of democratic guarantees and representation, as has been written about by Antonio Remiro. And this is where I think that instead of saying things that were unnecessary or conceptually problematic, the Inter-American Court is to be praised for its reliance on the specificity of human rights law and its principles, such as pro personae, among others, to further support the conclusions it had already arrived at concerning the representation of Guaidó as acting president in order to retroactively consent to being bound by the American Convention on Human Rights and being subject to the competence and jurisdiction of the regional human rights Court. Such a judicial body had already reached conclusions relying on traditional positivist possibilities such as consenting to cases which would otherwise hitherto not be under the jurisdiction of a given international judicial body – forum prorogatum comes to mind as an example of this used in practice. But the additions it made further reinforce the conclusions in a way that ultimately addresses what representation in the regional human rights law is about. Bodies such as the Inter-American Commission on Human Rights had already pointed to similar considerations in cases such as that of Zelaya.

Granted, it is possible to wonder if either I or the Court have been advancing lex ferenda arguments. My short answer would be a resounding no. As I have recently written apropos of a dramatic current issue –i.e., starvation—, what sometimes passes for normative proposals may actually be a reflection of some feasible interpretation under existing positive law that has not been identified yet or which has not gained enough support.

And speaking of support, I anticipate objections related to practice, to which I would answer that customary law is by no means the only source of international law. General principles exist as well – and they are not only created in foro domestico, as indicated in paragraph (b) of Draft conclusion 3 of the International Law Commission’s draft conclusions adopted on second reading in 20 May 2025. Moreover, teleological and systemic criteria are relevant for the sake of interpreting the law, according to what is set out in Art. 31 VCLT. The numerous citations of that provision in no way reduce their relevance. The specific principles cited by the Inter-American Court in its preliminary objections decision are to be understood not only as pointing to the close relationship between democratic guarantees and human rights in the Inter-American system, but also to the rationale and goals of it, which include, as the late judge Cançado – a true legal hero – would say (para. 35 of his opinion), that of giving hope to those who have not found it internally. And is it not the case that depriving an entire population of the possibility of being protected by a human rights treaty and filing complaints related to its violation starkly goes against that hope? Especially when dire democratic erosions take place? The Court said as much when (para. 60) it wrote that withdrawals from human rights treaties in contexts of democratic erosion or rupture or serious disruptions of the separation of powers compromise the legitimacy of State acts and frustrate the protection goals of the respective instruments (I translate from Spanish).

In light of these considerations, it is imperative to ponder on two things: is what the Court added by alluding to human rights specific principles unnecessary and irrelevant, or problematic? And also, is it legally wrong or flawed? My answer in all cases would be the same as before: no (or better yet, not at all). A look at what the Court said may clear things up.

Firstly, when moving to the human rights principles it considered after having explored the question of representativity before OAS bodies, the Court expressly wrote that such considerations are “pertinent” (para. 57). Indeed, is it not pertinent for a human rights Court to refer to human rights principles? Saying the opposite would seem strange. Examining how they would be undermined and what they can say in the specific case is anything but impertinent.

The Court would go on to say that the specificities of human rights treaties are to be taken into account, and when doing so it mentioned awareness of State sovereignty and consent (para. 61). The reason why lies, to my mind, on the fact that, as I wrote above, States cannot only bind themselves to specific constraints and additional obligations, but also to standards that modulate and somewhat diverge from those of general or other specific regimes. Pacta sunt servanda requires honoring those specific ones as well (para. 62) and their internal criteria, including those related to democratic principles in the Inter-American system (para. 63), which shape how its dynamics and standards are to be understood and protect in specialized ways against risks of abuses of power, arbitrariness, and democratic erosion (paras. 64 and 65) – al lof which, frankly and regretfully, exist in Venezuela.

The Court did not say that it decided only on the basis of those principles. It said that it was relevant and, again, pertinent to consider them. And this is the case. Especially because judicial actions are not only about deciding specific questions – otherwise, there would be no obiter dicta. They can also produce expressive effects and communicate important normative facts to the public or draw attention to relevant aspects to consider, so that their consideration can have a positive impact.

At the risk of sounding cheesy, I will quote that famous song: “you may think I’m a dreamer, but I’m not the only one” (emphasis on think). Indeed, I think that, Utopian as I am, defending the rationale of the Court is anything but. The logic it employed is the one most consistent with the standards and system it must base its considerations on. The one it is obliged to uphold. And it did it properly this time.