Venezuela in the Prospect of a Democratic Transition. The Light, the Shadow and the Role of the International Community

[Efrén Ismael Sifontes Torres is an Ayudante de Segunda in international law courses and a member of the Observatory of International Humanitarian Law at the University of Buenos Aires School of Law]

As a Venezuelan and an international lawyer, it took me some time to pause and reflect on the repercussions of the events that have shaken, and continue to shake, my country since the beginning of this year.

Much has been written these past few days about the United States (US) military operation in Venezuela which led to the capture of Nicolas Maduro and his wife, on January 3^rd. International lawyers have flooded different discussion forums, conventional and social media, and surely even friends and family meetings, analyzing the blatant illegality of the operation. I want to be clear, there is no doubt that it constituted a gross violation of article 2(4) of the United Nations Charter, thus a prohibited Use of Force (UoF) and an act of aggression against a sovereign State. Therefore, I do not believe that, at this point, the legal analysis of the operation under the UoF Law can be developed any further, considering that, in addition, there has not been any effort by the Trump administration to justify it under the framework of international law (p. 7)

A more nuanced discussion concerns the question of the head of immunity ratione personae exception that Nicolas Maduro invoked before the New York tribunal that is set to judge him for charges of narcoterrorism and conspiracy. In the situation of Venezuela, this debate is heavily influenced by another long-lasting international law issue: the recognition of governments. In this case, Maduro´s position as a legitimate head of the Venezuelan State after the elections that took place on 28th July 2024 (and even before it) remains contested.  

As stimulating as these discussions may be, I feel compelled to shift the focus of this post to a different dimension: the future. Nearly twelve years after Maduro assumed power as Hugo Chávez’s successor, the Venezuelan people glimpse a faint light of hope. For the approximately eight million Venezuelans who fled the country, it represents the first time that a real possibility for us to return to our homeland seems plausible. However, for those who continue living in the country, these last couple of days have been little to no different than before January 3rd. Repression and persecution of political dissidents continues, enabled by the Emergency Decree n° 5.200 enacted by the now interim leader of Venezuela, Delcy Rodriguez, which authorizes the detention of those who celebrated or commended the US actions, signaling that although the light can be seen, the shadow has not disappeared.

I harbor no illusions over the US intentions regarding Venezuela’s future. President Donald Trump has made it clear that his primary goal is the restoration of the country’s oil industry in order to access its revenues. However, as some commentators and even oil corporations like Exxon Mobil have warned, there is no possible long-lasting investment in the Venezuelan oil industry without the stabilization of the country and the restoration of the rule of law. In this context, I would like to reflect on possible venues for a democratic transition in Venezuela and the role that the international community (specially the Latin American countries) can play in this context.

Does the International Community have an Obligation Towards a Transition in Venezuela?

The role of the US in Venezuela’s future governance appears to resemble an eighteenth century-style protectorate, with Washington managing oil sales and investing in infrastructure to revive industries long abandoned and damaged. Democracy and free elections in Venezuela have been set aside as an immediate priority for the US government, as some officials and even President Trump suggested that they are not part of the short-term agenda.

This may reflect a strategic calculation: an opposition figure such as María Corina Machado would face enormous difficulties if placed at the head of a country whose military, security forces, and paramilitary structures have pledged absolute loyalty to the regime. Yet beyond these practical obstacles, any “solution” for Venezuela that does not ultimately lead to democratization should not be accepted by the international community, and I argue, cannot be accepted as a matter of law.

The prohibition of aggression constitutes, according to the International Law Commission Draft Conclusions, one of the few examples of jus cogens norms in International Law. In this sense, the draft conclusion 19(2) imposes that “No State shall recognize as lawful a situation created by a serious breach by a State of an obligation arising under a peremptory norm of general international law (jus cogens), nor render aid or assistance in maintaining that situation.”

In the context of the U.S. operation in Venezuela, these conclusions imply that the current status quo established after January 3—entailing the continuation in power of regime enforcers, including the so-called interim president (an institution not recognized by the Venezuelan Constitution)—cannot be recognized by the International Community as lawful. Therefore, they cannot be considered the legitimate authorities of the Venezuelan State. Currently, some States have taken steps in this regard. For instance, Panama stated before the UN Security Council on January 5^th that it will not recognize Delcy Rodríguez as interim president of Venezuela.

As the risk of a de-stabilization of the country that derives to a spiral of violence looms still, it is necessary that the international community treats the situation in Venezuela as a threat to international peace and security and take actions as such.

Democratic Transitions and the Role of the International Community

Past experiences highlight the crucial role of the international community (mainly through international organizations), in post-conflict/violence contexts. Their task has not been limited to rebuilding state institutions (“state-building”) but has also included fostering a shared political identity among the population (“nation-building”) (pp. 653–654).

In the Americas, unlike many regions in the world, States hold a strong obligation to promote and consolidate democratic systems and institutions. These principles are enshrined in the Charter of the Organization of American States and the Inter-American Court of Human Rights (IACtHR) has repeatedly recognized the close relationship between democracy and the fulfillment of human rights, particularly, civil and political rights (ror instance, IACtHR Cepeda Vargas vs. Colombia case, para 171). Moreover, in 2001 the Inter-American Democratic Charter was adopted under the Organization of American States framework, which starts by reaffirming that “peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it.” (Art. 1).

In this context, the historic role of institutions such as the Inter-American Commission on Human Rights (IACHR) in supporting democratic transitions cannot be overstated. In 1979, for example, the IACHR played a crucial role in denouncing enforced disappearances under Argentina’s military junta, helping to lay the groundwork for the country’s later democratic transition.

Contemporarily, under the auspices of the OAS the Electoral Observation Missions (EOMS) have been deployed in most of the countries in the Americas to aid in the celebration of elections, even in transitional context in the region during the 90s. Moreover, the OAS has set a number of special missions to strengthen democratic institutions in countries like Guatemala, Haiti and Honduras. Closer (geographically and thematically speaking) to the Venezuelan situation, is the establishment in 2004 of the Mission to Support the Peace Process in Colombia (MAPP/OAS), a key actor in the implementation and monitoring of the peace agreements between the government and armed groups. 

Beyond the Americas, there have been several instances of transitional processes, led by the United Nations (UN) which resulted in democratic elections. In this respect, the experience drawn by the United Nations Transitional Authority in Cambodia (UNTAC) can be relevant for the Venezuelan situation. As Wilde notes, UNTAC had a dual function: organizing elections and supervising the government to ensure their fairness (p. 52).

Another relevant case is the United Nations Transitional Administration in East Timor (UNTAET). Although initially conceived as a peace-building mission, UNTAET also ensured that East Timor could draft its own constitution after years of violence and institutional collapse—an experience that may offer lessons for Venezuela.

Conclusion.

In Venezuela, the lack of independent political institutions, and judicial guarantees, as well as the widespread and systematic persecution of dissidents has been widely documented by the IACHR, the OCHR and the UN Fact-Finding Mission on Venezuela, in various reports through the last couple of decades. The decay of governmental institutions and the erosion of the rule of law calls upon a titanic challenge for a peaceful transitional process to take place.

This reality demands more from the international community. Beyond the economic priorities defined by the US, genuine efforts by other States to promote and secure the Venezuelan people’s right to live freely in a democratic society should be a central priority. Admittedly, the constraints of international law and the current geopolitical landscape suggest that any approach deviating from Washington’s preferences faces serious obstacles.

Yet the proposal for the drafting and creation of an international mission to support Venezuela’s transition would not only move beyond a US-centered approach, but also reassure Venezuelans that international law—long impotent in the face of atrocities committed against us—can become an effective means for achieving long-awaited democratic elections and, finally, justice and accountability.