A Dangerous Bet on Recognition in Venezuela

When Venezuela’s National Assembly head Juan Guaidó declared himself to be the country’s interim President, every other country in the world faced a choice: recognize Guaidó as having the legal capacity to speak for Venezuela under international law, continue to recognize Maduro as head of state, or say nothing on legal recognition (a silent vote for the status quo that leaves room for future developments). The recognition decisions states make may force actions with serious security and political consequences for Venezuelans and for foreign diplomats.

In line with his hawkish policy on Venezuela, President Trump quickly announced that the United States recognizes Guaidó as interim President, as did Argentina, Brazil, Chile, Colombia, Paraguay, Peru, and Canada. Meanwhile, Russia, China, Turkey, Cuba, Bolivia, and likely Mexico, are standing by Maduro. Others have been more cautious, such as UK Prime Minister May noting that Maduro was not freely or fairly elected but expressing support for Guaidó only as national assembly head, and Germany stating that Venezuela’s parliament has “a special role” in Venezuela’s “free future.” Charting a similar path, the EU has called for new elections.

A statement issued by Secretary of State Pompeo makes clear that U.S. recognition of Guaidó is not merely symbolic, but that the U.S. views his government as the new national authority under international law. President Maduro responded by cutting off diplomatic relations with the United States and ordering U.S. diplomats to leave Venezuela within 72 hours. Guaidó, for his part, welcomed all diplomats in Venezuela to remain and to conduct their diplomatic relations with his new “government.”

The U.S. response to these opposing directives has the potential to force much larger issues in Venezuela. If U.S. diplomats refuse to leave Venezuela on the basis that Maduro no longer has the legal capacity to expel them, what will Venezuela’s security forces do if ordered by Maduro to kick them out? The United States has now inserted itself – and more specifically, its remaining diplomats in Caracas – into the issue of whether security forces will vote with their feet on the all-important question of to whom they owe their loyalty. And in a scenario that could have dire consequences for all Venezuelans, and possibly the wider region, what would happen if Guaidó were to call on the United States to help him wrest control of the country from Maduro (a right he would lawfully have under the U.S. position)?

International Law on Recognition of Governments

International law on recognition of a new government can be somewhat murky. As a process matter, most changes in government do not force states to make recognition decisions, because states generally do not question the establishment of a new government through normal legal processes – such as through constitutional mechanisms. However, a person (or entity like a transitional council) purporting to come to power through force or other extra-legal means is often not automatically recognized by states. In those cases, the question arises of whom to recognize as the legal authority with the rights and responsibilities of upholding the state’s obligations. There is, also generally speaking, a high bar for derecognition of a government that had come to power through legitimate means and, conversely, for recognition of a new government claiming power through extra-legal means. That brings us to the legal test states apply to determine whether the threshold for recognition of a new government is met.

Substantively, the touchstone for recognition of a new government under international law has traditionally been whether it exercises effective control of the territory it purports to govern. This ostensibly objective “de facto control” test for legal recognition, however, has been applied somewhat inconsistently and has evolved over time to include additional factors in U.S. practice, such as whether a government has the capacity and willingness to honor the international obligations of the state and whether the government is democratically elected (or otherwise seen as the legitimate representative of the people it purports to govern). In practice, the international legal test for recognition of a new government now leaves policymakers with a wide degree of discretion, as it incorporates value judgments as well as factual determinations.

Wider leeway in modern recognition doctrine to take democratic legitimacy into account means states sometimes choose to recognize a government in exile (or controlling only a small amount of territory), even when a different person or entity exercises effective control. For example, most states recognize President Hadi’s exiled government of Yemen on the basis that the Houthis came to control a large area of the country through illegitimate means. Similarly, most states continued to recognize President Aristide’s government of Haiti following a military coup in 1991. A state may also choose not to conduct diplomatic relations with a new government even if legal recognition is not withheld – the two usually go together, but diplomatic relations can be severed without derecognition of the government (such as in the case of the longstanding diplomatic impasse between the United States and Iran, or until 2015, the United States and Cuba).

The Consequences of Recognition

Despite broader leeway in the modern law of recognition, it matters whether a new government exercises effective control, because if it does not, a cascade of practical and legal consequences follow. If Guaidó is now Venezuela’s head of government in the international law sense, it has the right and the obligation to protect diplomatic missions, yet appears to lack the capacity to do so. And that’s just the beginning. It must also uphold all of Venezuela’s other international obligations. Moreover, it would have the capacity to call on other states to come to its assistance – be it humanitarian, economic, or even military in nature.

Quick recognition by the United States, Canada, and the right-leaning governments of the region notwithstanding, whether Guaidó could soon have anything close to de facto control, including over Venezuela’s military and other security services, oil production capacity, and vital services for sustaining the population, is the million-dollar question. The uncertainty this creates is one of the reasons why a mismatch between de facto control and legal recognition can be dangerous, especially when a previously-recognized government still claims legal authority (and enjoys the support of a formidable swath of the international community). In these circumstances, switching recognition to a new government that lacks the capacity to carry out the functions of the state on its own can precipitate not just a protracted political crisis, but a serious security one as well.

It’s quite possible that the Trump administration wants to provoke exactly this type of crisis. But its resolution in Guaidó’s favor would be far from clear. Using international legal decisions and their follow-on effects as a sword and forcing the recognition issue could lead a series of pieces to fall into place for Guaidó. On the other hand, if security forces and vital services remain under Maduro’s control, which they are reported to be, it could lead to chaos or potentially severe violence, for Venezuela’s citizens or for foreign diplomats. It’s a dangerous bet.

As a political matter, once presented with the choices of recognizing Guaidó’s claim as interim President of Venezuela, sticking with Maduro, or taking a cautious middle path, it is perhaps unsurprising that the Trump administration threw its weight behind Guaidó. But is such a claim legally defensible?

Guaidó clearly does not exercise de facto control of Venezuela, although the United States believes he is the more legitimate representative of the Venezuelan people – two factors that cut against each other. However, Pompeo’s initial statement seemed not to rely on legitimacy alone, but on a legal argument that Guaidó has a valid claim to power under Venezuela’s existing laws. If this were the case, his “interim Presidency” should be treated more as a “normal” transition of governments (with its lower hurdle for recognition) than an extra-legal seizure of power. Specifically, the statement cites Guaidó’s “courageous decision to assume [the interim President] role pursuant to Article 233 of Venezuela’s constitution.” A persuasive case can be made that Venezuela’s venerable constitution allows no such transfer of power, even if Maduro’s election was not legitimate. But it’s possible that executive branch lawyers see Guaidó’s legal claims as just plausible enough, and Maduro as sufficiently lacking in democratic legitimacy, to essentially defer to policymakers on which government to recognize.

Either way, the recognition has been made and its follow-on effects have begun to flow. Pompeo’s second statement, which makes clear the United States no longer considers “Maduro to have the legal authority to break diplomatic relations with the United States or declare [U.S.] diplomats persona non grata” and calls “on the Venezuelan military and security forces to protect “U.S. and other foreign citizens in Venezuela,” is an implicit acknowledgement that Venezuela’s security forces have a momentous decision to make and that the U.S. intends to support those who align with Guaidó.

The most dangerous of all possible follow-on effects that could flow from this position may be if Guaidó formally requests the United States to come to his “government’s” defense militarily. If Guaidó were, indeed, imbued with the authority of the head of state, such an invitation would be legally possible though unwise as a policy matter. This scenario is no idle speculation. President Trump reportedly asked his top policy advisers about the possibility of invading Venezuela back in August 2017. That same month he told reporters that military intervention was an option that the United States “certainly could pursue.” And over the following months, the Trump administration reportedly held secret talks with Venezuelan military officers to discuss the officers’ coup plans. All of those events occurred long before Guaidó claimed authority to speak for the national government. There is now a potential powder keg with a fuse waiting to be lit – with Guaidó claiming authority and potentially needing an outside force to gain effective control over any part of the country, inviting the U.S. military in to help him (and the Trump administration deciding to do so) would set it off.

Whether or not the United States takes some form of military action, Guaidó’s grasp may strengthen over time but it may also slip. That’s the fundamental tension at the heart of this gambit on the part of the United States and other outside powers. Recognizing Guaidó at this early stage may give him the best chance of gaining support from civil society and the military ranks. But recognizing Guaidó before he has obviously obtained a level of control increases the probability that the future will not work out well, and it will be harder to de-recognize him until we’re well past the point for doing so.

 

  

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About the Author(s)

Tess Bridgeman

Senior Editor at Just Security. Former Special Assistant to the President, former Associate Counsel to the President, former Deputy Legal Adviser to the National Security Council (NSC), formerly Served at the Department of State in the Office of the Legal Adviser, in the Office of Political-Military Affairs and as Special Assistant to the Legal Adviser. Currently Senior Fellow and Visiting Scholar, Reiss Center on Law and Security at NYU School of Law. You can follow her on Twitter (@bridgewriter).