The Rio Treaty: Paving the Way for Military Intervention in Venezuela?

The humanitarian and political situation in Venezuela has been a matter of concern for some time. States in the Americas, acting through the Lima Group, and the European Union have been active in seeking a resolution to this crisis. In this context, there has been speculation in the Latin American media about a potential military resolution to the central question of who rightfully occupies the Venezuelan presidency, to which there are two contenders: Nicolás Maduro and Juan Guaidó. Such speculation has resulted in part from certain statements of United States officials (including the President, the former National Security Advisor and the Secretary of State) and the express policy of a faction of the Venezuelan opposition to seek a military intervention.

Against this background, Juan Guaidó, who proclaimed himself caretaker President of the country on January 23 (on the basis of a plausible reading of the Venezuelan Constitution) and has been recognized by close to 60 States including the United States, called a meeting of the Organ of Consultation of the Inter-American Treaty of Reciprocal Assistance, also known as the Rio Treaty or “TIAR,” for its Spanish acronym. At that meeting, on September 23, Resolution RC.30/RES. 1/19 was adopted with 16 votes in favor, 1 vote against (Uruguay), and 1 abstention (Trinidad and Tobago). It imposed sanctions on Maduro-regime members and requested the cooperation of TIAR members in the investigation of the regime’s alleged illegal activities.

The meeting fueled speculation about a military option, in particular because Costa Rica’s proposal to exclude military force from the Organ of Consultation’s contemplation in the lead up to the meeting was rejected by the majority of TIAR members. However, States in the Americas largely excluded recourse to military force as a way out of the crisis (see, e.g., Chile, Costa Rica, Dominican Republic, Mexico, Panama, Peru). The Resolution contained no references to the use of force, but its preamble noted the presence in, and operation from, Venezuelan territory of terrorist organizations and other illegal armed groups such as the National Liberation Army based in Colombia (known by its Spanish acronym, ELN). Maduro has decried the invocation of TIAR as a pretext for the use of force in Venezuela, arguing that it is merely an excuse for an eventual U.S. invasion of Venezuela (see this letter of September 23 from Venezuela to the President of the UN Security Council). Likewise, Uruguay has announced its withdrawal from TIAR arguing that the Resolution is paving the way for military action in Venezuela.

The debate about forcible intervention in Venezuela, which had previously been centered around the doctrine of humanitarian intervention, has now moved towards the permissibility (and even obligation) to resort to force under TIAR. However, TIAR cannot, in present circumstances, provide a framework for the use of force in Venezuela since it is a defense pact under Article 51 of the UN Charter and there has been no “armed attack” by a State – the predicate required for invocation of collective self-defense pursuant to Article 3 of TIAR. In particular, the Organ of Consultation set up under TIAR is not competent to recommend, let alone mandate, the use of military force by its States parties.

But the discourse may be about to shift again: the renewed focus on the presence of terrorist groups in Venezuela, and the Maduro regime’s involvement with such groups, suggest that the ground is being paved for a potential military intervention in Venezuela on the basis of individual and collective self-defense against terrorist groups along the Venezuela-Colombia border.

Venezuela’s membership of TIAR

First, a preliminary question: is Venezuela a member of TIAR? In 2014, Maduro’s government announced its withdrawal from the Treaty. Then, in August 2019, following a decision of the National Assembly, Juan Guaidó deposited an instrument of accession before the OAS, the depositary of TIAR, on behalf of Venezuela. The National Assembly’s resolution was subsequently quashed by the Supreme Court – as the Court has done with every act passed by the National Assembly since it declared it ‘in contempt’ in 2016. The OAS, one of the few international organizations that recognizes Guaidó as President of Venezuela, nevertheless accepted the accession. But Maduro has insisted that Venezuela is not a party to TIAR (here and here). Until the Presidential crisis is resolved, Venezuela’s membership of TIAR will remain uncertain.

The use of force under TIAR

TIAR, like its North Atlantic analogue NATO, is a defense pact under Article 51 of the UN Charter. The treaty provides a legal framework for the exercise of collective self-defense by States in the Americas: its parties undertake to assist each other in meeting armed attacks. Under international law (UN Charter and customary law), States have discretion whether to resort to collective self-defense (or individual self-defense, for that matter): self-defense is a right (rectius privilege). Under TIAR, collective self-defense becomes an obligation of States parties – within limits, as will be seen. TIAR is not, as Venezuela stated in a letter of September 23 to the President of the Security Council, a regional organization under Chapter VIII of the Charter. Two situations trigger the assistance obligations under TIAR:

(i) Under Article 3, where an American State has been the victim of an armed attack by “any State,” States parties undertake two obligations. First, a substantive obligation to assist in meeting the armed attack in the exercise of the right of individual or collective self-defense upon the request of the victim, in accordance with Article 51 of the UN Charter. Each contracting party may decide upon the measures it takes to fulfil this obligation – so resort to force is discretionary (Article 3(2)). Second, States parties have a procedural obligation to call a meeting of the Organ of Consultation.

(ii) Under Article 6, where there has been an infringement of the territorial integrity, sovereignty or political independence of an American State by means of “an aggression which is not an armed attack,” or when an intra- or extra-Continental conflict or any other fact or situation endangers the peace of America, States parties only have the procedural obligation to call a meeting of the Organ of Consultation.

The Organ of Consultation may adopt, pursuant to Article 8, measures aimed at the restoration of peace and stability in the region, including “recall of chiefs of diplomatic missions; breaking of diplomatic relations; breaking of consular relations; partial or complete interruption of economic relations or of rail, sea, air, postal, telegraphic, telephonic, and radiotelephonic or radio-telegraphic communications; and use of armed force.” Decisions of the Organ of Consultation under Article 8 are binding on States parties, with one exception: those involving the use of force. As clarified by Article 20, “no State shall be required to use armed force without its consent.” As such, the Organ of Consultation can at most recommend the use of force, but it cannot oblige States parties to take military measures. Article 20 reinforces the reading of Article 3 as not requiring States to meet the armed attack with forcible measures.

Article 8 does not make distinctions between the measures to be applied in cases under Article 3 (armed attack) or Article 6 (“aggression which is not an armed attack” or “endangerment of the peace of America”).  In particular, it does not clarify whether forcible measures can be recommended in respect of both types of situations. Several factors, however, suggest that the Organ of Consultation’s competence pursuant to Article 8 to recommend forcible measures is limited to situations falling under Article 3 only.

First, the context of Article 8. In Article 1 of TIAR, the parties “condemn war and undertake not to resort to force in any manner inconsistent” with the Charter and, according to Article 10, the provisions of TIAR shall be construed in accordance with the Charter. Article 3, moreover, contains an express reference to Article 51 of the Charter, even limiting the parties’ obligations under this provision until such time as the UN Security Council has taken action to meet the armed attack. Second, the object and purpose of the treaty also suggest this understanding. TIAR is a defense pact under Article 51 of the Charter, whose parties “reiterate their will to remain united in an inter-American system consistent with the purposes and principles of the United Nations” (preamble). Finally, the travaux préparatoires confirm that the drafters of TIAR intended to respect and comply with the UN Charter framework on self-defense and the use of force more generally (see, Garcia-Mora at 5).

Article 8 must thus be read in light of the UN Charter generally, and Article 51 in particular. Pursuant to the UN Charter, States do not have a right to resort to force unilaterally (that is, without the consent of the territorial State and outside the collective security framework) other than in self-defense in accordance with Article 51. It follows that TIAR’s Organ of Consultation can only recommend the use of military force in situations of self-defense falling under Article 51 of the UN Charter. It cannot, therefore, recommend the use of military force in situations under TIAR Article 6.

TIAR and the situation in Venezuela

The meeting of the Organ of Consultation on Venezuela was called pursuant to Article 6 of TIAR (see Organ of Consultation Resolution No CP/RES.1137/19 rev.2 corr.1 of 11 September 2019), on the basis that the situation of humanitarian emergency in Venezuela and the large exodus of Venezuelan citizens into neighbouring countries (an estimated 4.4 million so far) constitute a “fact or situation … endanger[ing] the peace of America” (Article 6). A use of force in these circumstances would be grounded on the doctrine of humanitarian intervention, not self-defense. Leaving aside the controversial international legal basis of this doctrine, the Organ of Consultation would not be competent to recommend the use of force in these circumstances as explained earlier.

The same holds true for intervention by invitation. Military intervention by invitation is permitted by the UN Charter framework. To the extent that the invitation is made in a situation of armed attack, then it would fall within the scope of collective self-defense under Article 3 of TIAR. In any other case, be it to deal with a humanitarian crisis or with some other internal threat, the Organ of Consultation cannot recommend (let alone require) such use of military force: it is not competent to do so under TIAR, which limits this power to situations of self-defense.

This is not to say that member States of TIAR could not consider a request to use military force from Venezuela outside of the Article 3 context. Assuming that Juan Guaidó was competent to make such a request (which is, at best, uncertain), parties to TIAR could accept it – but they could not do so acting as the Organ of Consultation of TIAR. They would rather be acting as an ad hoc coalition of the willing.

However, Article 3 could be engaged, and the substantive obligations of TIAR parties triggered, if for example a neighboring State and TIAR party – such as Colombia – claimed an armed attack by Venezuela. While the situation has not yet escalated in this way, Venezuela’s launch of military exercises along the border with Colombia in early September give cause for concern. The US Special Representative for Venezuela Elliott Abrams immediately voiced support for Colombia, stating: “If there are cross-border attacks from Venezuela to Colombia, we can expect Colombians to react … and obviously, we would fully support Colombia in that situation.”

While TIAR requires an armed attack by a State, it does not define the concept of “armed attack.” Given the context of TIAR and its negotiating history, as described above, the term should be considered essentially co-terminus with the way it is understood in Article 51 of the UN Charter. That does not end the inquiry, however. Colombia (and the United States) may take an expansive reading of this concept allowing a forcible response either in anticipation of an attack or in response to a small-scale use of force, in contravention with the definition of “armed attack” consistently upheld by the International Court of Justice in its case-law. It would fall on TIAR members, if their obligations under Article 3 were invoked, to reject such an expansive reading.

Paving the way for the use of force?

The discourse seems, however, to be shifting already. In its preamble, the Organ of Consultation’s Resolution of September 23 noted the presence in Venezuelan territory of terrorist and other non-State armed groups, including the ELN, with the acquiescence of the Maduro regime. A few days later Colombia’s President, Iván Duque, in his speech during the UN General Assembly’s General Debate, accused Maduro of complicity with these groups, in particular the ELN, in “violation of the obligations established in Security Council Resolution 1373 of 2001.” Duque handed a dossier to the UN Secretary General containing “conclusive proof” of Maduro’s involvement with the ELN and tweeted some of its content. Media and fact-checkers soon proved some of the evidence to be false, leading to the resignation of Colombia’s Director of Intelligence and Counterintelligence of the Military Forces. Maduro’s regime called this a “simulated aggression,” to be used as a pretext for the use of force in self-defense, in a letter to the President of the UN Security Council.

The presence of such groups along the Venezuela/Colombia border, and claims (and some evidence) about links between both the Chavez and Maduro regimes and these groups, are not new (see here and here). These groups present an additional layer in what is already an extremely complex crisis in Venezuela. The real risk at this point is the weaponization of the presence of such groups in Venezuela into a claim of self-defence by Colombia. Indeed, in a region where most States reject the permissibility of self-defence against non-State actors in the territory of non-consenting States (see here), Colombia is the only one to have, in the past, endorsed such a possibility with respect to its raid against a FARC camp in Ecuador in 2008. (If the acts of these groups were attributable to the Maduro regime, they may even trigger the obligations under Article 3 of TIAR). Colombia has not yet made any claims of self-defence. But the ground-work is being laid for a possible claim on this basis.

Some Venezuelan politicians and commentators have seen a military intervention (on whatever legal basis) as a necessary step towards resolving some of the layers in the intractable crisis in Venezuela. But analysts’ forecasts of the potential success of any such intervention are far from reassuring. Against the background of the failure of interventions in the last two decades, from Afghanistan to Syria, by way of Iraq and Libya, and whatever one’s views on Maduro’s regime, the desire for a military solution to the current crisis, likely to cause even more suffering to an already exhausted population, is a cause for concern. 

About the Author(s)

Federica Paddeu

Dr. Federica Paddeu is the John Tiley Fellow in Law and Director of Studies at Queens’ College, Cambridge, and a fellow of the Lauterpacht Centre for International Law. Follow her on Twitter (@federica_paddeu).