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The Statute that Governs the Transition to Democracy and the Int'l Recognition of the Venezuela Interim President

Published online by Cambridge University Press:  16 March 2022

José Ignacio Hernández G.
José Ignacio Hernández G.*
Affiliation:
Administrative Law Professor, Catholic University and Central University, Venezuela; Visiting Professor, Castilla-La Mancha University, Spain; Fellow, Harvard Kennedy School, United States.
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Extract

Since January 23, 2019, several countries, including the United States and the United Kingdom, have recognized the speaker of the Venezuela National Assembly, deputy Juan Guaidó, as interim president until free and fair presidential elections are called. That recognition was a consequence of the repudiation of the 2018 presidential election, in which the incumbent president, Nicolás Maduro, was fraudulently proclaimed president for the term that began on January 10, 2019. A few days later, on February 6, 2019, the Venezuelan National Assembly approved a special law, the Statute that Governs the Transition to Democracy to Restore the Enforcement of the Constitution of the Bolivarian Republic of Venezuela (the Transition Statute). The primary purpose of the Transition Statute was to regulate the exercise of the presidency by the speaker of the National Assembly acting as interim president, based on Article 233 of the Venezuelan Constitution.

Type
International Legal Documents
Information
International Legal Materials , Volume 61 , Issue 5 , October 2022 , pp. 820 - 834
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of The American Society of International Law

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References

ENDNOTES

1 Originally published in the Legislative Gazette No. 1 extraordinary, Feb. 6, 2019. Modified in 2020 to extend the status of the interim president until 2021 (Gazette No. 38, Dec. 28, 2020), and again in 2022, to extend that status until 2023 (Gazette No. 56, Jan. 5, 2022). No significant modifications have been introduced regarding the 2019 Statute [hereinafter Transition Statute].

2 Allan Brewer-Carías, The Constitutional Foundation of the Transition Regime towards Democracy in Venezuela 2019–2020, in The defense of the rights and interests of the Venezuelan State by the Interim Government before foreign courts, and their international recognition 2019–2020, 113 (José Ignacio Hernández G. & Allan Brewer-Carías eds., 2021).

3 See L. Oppenheim et al., Oppenheim's International Law 148 (1992).

4 In strict terms, the state—not the government—is the subject of recognition in international law. However, for practical reasons it could be necessary to determine what polity can be deemed as government to represent the state abroad. The critical condition is that the polity with effective territorial control should be considered the government, regardless of its legitimacy. Generally, see James R. Crawford, Brownlie's Principles of Public International Law 134 (2019). Recently, see Gëzim Visoka et al., Introduction, in Routledge Handbook of State Recognition 1–23 (Visoka, Gëzim et al. eds., 2019).

5 Transition Statute, art. 14.

6 José Ignacio Hernández G., The Venezuelan Interim Government Before the Foreign Courts, in Hernández G & Brewer-Carías, supra note 2, p. 19.

7 Transition Statute, art. 15(b).

8 Id. art. 15(a).

9 Hernández G., supra note 6, p. 53.

10 Brewer-Carías, supra note 2, p. 150.

11 In the United States and the United Kingdom, only the 2019 Statute has been interpreted. As was explained, there are no significant differences in comparisons to the 2020 and 2022 reforms.

12 See “Maduro Board” of the Central Bank of Venez. v. “Guaidó Board” of the Central Bank of Venez. [2021] UKSC 57, ¶ 79.

13 For instance, see Rodolfo Enrique Jimenez v. Luisa Palacios, C.A. No. 2019-0490-KSJM (Del. Ch. Aug. 2, 2019) 23–24.

14 Id. p. 40.

15 See UKSC ruling, supra note 12, in which the Supreme Court analyzed the consequences of the Venezuela Supreme Tribunal of Justice's decisions (STJ). According to the Court, “Mr. Guaidó, recognized by HMG as the President of Venezuela, has made appointments to the board of the BCV which the STJ, as a part of the judicial branch of government, has declared to be unlawful and of no effect. As a result, this Court is confronted with conflicting positions adopted by the executive and the Judiciary of Venezuela” (¶ 156). Although the analysis of the STJ decisions was deferred to the Commercial Court, the Supreme Court clarified that the STJ decisions could be considered only if they do not prevent the “effective application of the one voice principle. As a result, no recognition or effect could be given to a judgment of the STJ if and to the extent that to do so would conflict with the recognition by HMG of Mr. Guaidó as the interim President of Venezuela” (¶ 177).

16 Impact Fluid Sols. LP v. Bariven SA, 2020 U.S. Dist. LEXIS 261530, C.A. No. 4:19-CV-00652 (S.D. Tex. 2020), p. 5.

17 For instance, the United States has renewed the interim president recognition over time, despite the continuance of Maduro's usurpation. See, U.S. Recognition of Venezuela's 2015 National Assembly and Interim President Guaidó, State Department (Jan. 5, 2022), https://www.state.gov/u-s-recognition-of-venezuelas-2015-national-assembly-and-interim-president-guaido.