Monday, July 15, 2013

Manifest disregard of international law: the Venezuela case

Over the last fourteen years, Venezuela has been dismissive of international law. Since the arrival to power of the controversial Hugo Chávez in 1999, there have been multiple episodes that have confronted the South American nation with its international obligations, revealing that in one way or another, this branch of law is of insignificant use if there is no real desire by States to comply with their obligations.

This has been done under the passive look of the international community, which has preferred to turn a blind eye to protect its economic interests, considering that Venezuela has one of the largest oil reserves in the world. The damage done to the reputation of the field has been considerable at least among Venezuelan citizens, who have often labeled it as useless.

Having this in mind, it seems that there is a worldwide trend of demanding and assuring compliance with international law only in the most serious situations. However, less severe cases of breach are gnawing away the legitimacy of a system of rules that are blatantly violated every day, affecting profoundly common citizens. A recurrent but stealthily violation of international law requires the implementation of solutions, which may perhaps sound utopian in our time, but will assure the effectiveness and utility of international law in the years to come.

In April 2002, Chávez ordered the Venezuelan military to violently dissolve a peaceful demonstration that was headed to the presidential palace. After a very confusing series of events, apparently the military removed him from power and two days later restored him as President since the interim government incurred in a coup d’état by illegally dissolving the National Assembly, the Supreme Court and declaring the country’s Constitution void.

A month later, Chávez himself met with the members of the Inter-American Commission on Human Rights (“IACHR”), receiving them at the presidential palace in a cordial meeting to discuss the human rights situation in Venezuela. However, when some time after such Commission started raising its voice of concern about the lack of respect of human rights, Chávez began attacking it himself, accusing it of not being impartial and responding only to US interests.

Ever since then, every time that the IACHR has issued a statement, report or even precautionary measures for the protection of Venezuelan citizens, the government has simply responded invoking the 2002 episode, thus using it as a mere excuse for not complying with the requests of the Commission. Therefore, by simply raising an alleged lack of impartiality, Venezuela started to recurrently defy measures that it was obligated to comply with as a State party to the American Convention on Human Rights (“ACHR”).

In 2008, the Constitutional Chamber of the Supreme Tribunal of Justice issued an opinion declaring unenforceable a decision of the Inter-American Court of Human Rights (“IACrHR”), which ordered the restitution of three judges who were removed without due process. Taking advantage of such opportunity, the highest court of the nation developed a “legal” thesis which precludes the execution of any foreign judgment if the courts consider that it violates the Venezuelan Constitution.

Obviously, the above mentioned thesis did not take into account the international obligation of the State of executing such judgments that comes from being party to the ACHR. Additionally, the Supreme Tribunal clearly ignored the rule contained in Article 27 of the Vienna Convention on the Law of Treaties (“VCLT”), which provides that a State may not invoke the provisions of its internal law as justification for its failure to comply with a treaty.

This situation shows that there is an outdated and erroneous understanding of the principle of sovereignty and the principle of non-intervention, enshrined in Article 2.1 of the UN Charter. The government and the judiciary have opted for an absolutist understanding of sovereignty at their convenience, despite of the fact that Venezuela has ratified several international treaties that in one way or another, allow international bodies to make legal determinations about situations which occur in its territory.

Nowadays, as a consequence of the lack of independence among the different branches of government, there is a clear policy of alleging that, in every single matter, it is the government who has the final say on the legality of its actions.

Concerning the principle of non-intervention, the government has even gone further. Recently, on May 2013, the government presided by Chávez successor, Nicolás Maduro, as well as the National Assembly, strongly condemned a meeting of Colombia’s President, Juan Manuel Santos with the Venezuela opposition leader, Henrique Capriles, qualifying it as a defying intervention of Colombia in Venezuela’s own affairs.

However, in April 2012, Paraguay had to break its diplomatic relations with Venezuela after informing that the then Minister of Foreign Affairs, Nicolás Maduro, had been directly inciting the Paraguayan military to resist the destitution of Fernando Lugo by the country’s legislative power.

This particular examples show that the use of international law concepts and the disparity in their understanding and application is extraordinary. The government vehemently condemns the concerns that have been raised by States or international organizations that show worry about particular situations in Venezuela, but at the same time, hypocritically intervenes in other States’ internal affairs.

The logical consequence of Venezuela’s disastrous record in breaching its international obligations came with the denunciation of the ACHR in 2012. The termination of the aforementioned treaty will result in a drastic reduction of the scope of protection of Venezuelan citizens. Starting September 06, 2013, citizens will have to agree with the last word of domestic courts regarding the responsibility of the State in relation to human rights violations, which is in itself extremely self-defeating considering the lack of judicial independence in Venezuela.

Also in 2012, and in its effort to implement its tailor made conception of sovereignty, the government announced that it had denounced the ICSID Convention. Coincidentally, the decision came a few years after becoming one of the most sued States in the investment disputes resolution centre. This as a consequence of implementing expropriations against foreign investments without following due process and providing fair compensation.

Although the above-referred denunciation already took place, there are still many cases pending, where Venezuela could be ordered to pay a staggering amount of more than forty billion dollars in compensation to private investors. The table is already served for Venezuela’s breach of its international obligation of enforcing and complying with such eventual decisions. The Supreme Tribunal of Justice has already announced that it will not implement decisions that violate the Constitution, attributing to itself an impressive degree of maneuverability to discard any decision that does not suit the government's interests. However, in this case, it is worth recalling that decisions of ICSID tribunals could also be executed in other States which are party to the ICSID Convention and where Venezuela still has relevant commercial assets.

Having viewed the cases described above, it is obvious that Venezuela’s actions have done serious damage to international law’s legitimacy over the last years. It is disappointing to see how this branch of law is not of much help even though it is repeatedly violated by a State, directly affecting its citizens. In this regard, it would be desirable to assess the possibility of allowing such citizens to sue third States for failing to demand the other State to comply with its international obligations. 

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