Foreign Relations & International Law

What Does It Mean for the United States to Recognize Juan Guaidó as Venezuela’s President?

Scott R. Anderson
Friday, February 1, 2019, 2:29 PM

President Trump’s recent decision to recognize Juan Guaidó as Venezuela’s interim president has placed the United States in the middle of a heated struggle over that country’s political future.

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President Trump’s recent decision to recognize Juan Guaidó as Venezuela’s interim president has placed the United States in the middle of a heated struggle over that country’s political future. Alongside a number of other countries, the United States has renounced the legitimacy of Venezuela’s current president, Nicolás Maduro, and pushed for his resignation in favor of Guaidó and eventual new elections. Yet China and Russia, among others, have condemned the U.S. decision as an effort to interfere in Venezuela’s internal affairs and warned that a U.S.-backed coup may be in the offing. For its part, the Trump administration has pointedly refused to rule out military intervention as an option, raising alarm bells both at home and abroad.

But what does it mean to say that a country has “recognized” Guaidó? More than mere rhetoric, such acts of recognition can have significant legal consequences for both the parties involved and the state changing its recognition policies. Here the Trump administration and its allies appear to have settled on recognition as a means of weakening the incumbent Maduro regime while strengthening Guaidó’s own political movement, as it effectively transfers diplomatic access and economic resources from the former to the latter. Doing so, however, places a major bet that Guaidó—who currently controls no governmental institutions or territory in Venezuela—will eventually displace Maduro. If this does not come to pass, then those countries that have recognized Guaidó are likely to find themselves in a difficult position. And thanks to the Trump administration’s efforts to put maximum pressure on Maduro, the United States may have the most to lose.

Recent Developments

The decision to recognize Guaidó as interim president comes at a critical moment in Venezuela’s history. While the country has spent years in severe economic and political decline, an increasingly authoritarian Maduro has worked to consolidate power by co-opting the institutions of government and marginalizing the country’s popularly elected National Assembly, which the political opposition has controlled since 2015. The broader population, meanwhile, continues to live in a state of humanitarian crisis marked by rampant violent crime and severe shortages of food, medicine and other essentials. Revenue from national oil sales is the only thing believed to be preventing a complete economic collapse—yet it also provides the fuel for Maduro’s regime, which uses corruption to maintain its network of supporters.

Maduro—who assumed power in 2013 following the death of his predecessor, Hugo Chávez—put himself forward in 2018 for reelection to a second term. He officially won by an overwhelming margin, but the elections themselves were marred by violence and manipulation, leading most of the international community to reject the results. This created an opening for the National Assembly. In conversation with the United States and other interested parties, it began to explore the possibility of invoking Article 223 of Venezuela’s 1999 constitution, which addresses vacancies in the office of the president by appointing the head of the National Assembly, currently Guaidó, as interim president until elections can be held. The National Assembly invoked this provision shortly thereafter and Guaidó officially accepted on Jan. 23, in front of a mass anti-government demonstration. The Trump administration’s statement of recognition came just hours later, leaving little doubt that the effort was coordinated.

The United States did not act alone, however. Canada followed with its own statement of recognition, as did 11 of the 14 members of the “Lima Group,” a coalition of Central and South American countries formed to address the situation in Venezuela. Australia and Israel followed suit a few days later, as did the European Parliament on Jan. 31. And several European states—including France, Germany, Spain and the United Kingdom—have threatened to do the same if Maduro does not promptly move toward elections. Meanwhile, a smaller group of countries—including Bolivia, China, Cuba, Russia and Turkey—has continued to back Maduro, notably preventing any action by the U.N. Security Council. Their rhetoric portrays U.S. support for Guaidó as an expression of U.S. imperialism and the equivalent of a coup backed by the threat of U.S. military intervention. The rest of the international community has in turn called for dialogue while remaining on the sidelines—despite the Trump administration’s demands that they “pick a side.”

What Is Recognition?

In short, recognition is the act by which states acknowledge their shared status as states, meaning they have certain rights and duties in common as a matter of international law as well as the shared ability to enter into new international legal obligations. This makes recognition a foundational aspect of international law and diplomacy, as both are premised on relations between states.

In the United States, recognition decisions are the exclusive authority of the president, a fact the Supreme Court has confirmed as recently as 2015. Congress in turn often incorporates these recognition decisions into other areas of law that touch on how the United States approaches foreign states, even if the president’s constitutional authority over recognition would not otherwise reach there. International practice varies, but most countries operate in a comparable fashion.

Recognition is often described as having four prerequisites: a permanent population, a defined territory, effective government and the capacity to enter into interstate relations. In practice, these criteria are often divided between state recognition and governmental recognition. The former identifies a physical territory and associated population as a state that is—or should be—governed by a single political system. The latter specifies the political actors believed to be in “effective control” of the state, meaning they have the ability to govern in a manner that complies with the state’s international legal obligations.

State and governmental recognition are not always linked. At times, one state may recognize another state without recognizing a corresponding government. In the 1990s, for example, most countries recognized Somalia as a state but did not recognize any government there, as the previously recognized government had dissolved without any clear replacement. Similarly, where a recognized government is removed from power, foreign states have occasionally continued to recognize it as the lawful “government-in-exile,” even if it lacks meaningful effective control. Notably, this was the U.S. position toward Jean-Bertrand Aristide following his ouster as Haiti’s president in 1991 and toward President Abdrabbuh Mansour Hadi when he was forced to flee Yemen in 2015. That said, real-world conditions on the ground generally win out over time, leading most states to eventually recognize even disfavored regimes as at least the de facto, if not the de jure, government in the state (or parts of a state) where those regimes are in control.

There is a longstanding academic debate as to whether entities are entitled to treatment as states by virtue of satisfying relevant requirements or become states only through recognition by other states. In practice, however, there are few clearly defined rules of international law ready for neutral application in the situations where recognition most often becomes an issue, such as state formation, internal rebellion and governmental transition. As a result, states tend to exercise substantial discretion over at least governmental recognition, to which they occasionally attach additional conditions, such as compliance with human rights obligations or selection through some democratic process.

Due to the controversy that can attend recognition decisions, modern states have generally tried to de-emphasize formal statements of recognition and move toward implicit recognition—that is, quietly signaling recognition by simply treating recognized foreign states and governments as such. That said, public statements of recognition are sometimes still used as a tool of foreign policy. At times, states have sought to undermine a disfavored regime by publicly recognizing the legitimacy of opposition movements. Some such statements are symbolic, as when the United States recognized the Syrian Opposition Coalition as the “legitimate representative of the Syrian people” but stopped short of displacing the Assad regime. Others, however, recognize an opposition movement as the new government, even if its effective control is more aspirational than real.

A recent example of this latter approach is the July 2011 recognition of the Transitional National Council (TNC) in Libya. A coalition of rebel groups supportive of establishing a democracy, the TNC was by this point in control of western Libya while the Moammar Gadhafi regime still held Tripoli in the east. Having already intervened militarily under U.N. auspices to curb Gadhafi’s violence against civilians, the United States and a substantial number of other states decided to formally recognize the TNC as the official government of Libya. This not only isolated the Gadhafi regime and facilitated the TNC’s own diplomatic efforts, but it allowed the TNC to assume control of overseas Libyan assets that had been frozen by sanctions, providing the revolution with much-needed financial resources. This eventually helped the TNC to successfully dislodge Gadhafi and hold elections before dissolving voluntarily—though the government that succeeded it ultimately succumbed to the same internal conflict that continues in Libya today.

Consequences for Venezuela

The Trump administration’s recognition of Guaidó is undoubtedly a formal recognition along the lines of the U.S. recognition of the TNC, a fact made clear by the various legal consequences that the Trump administrations has identified as flowing from it. Perhaps the administration hopes to provide Guaidó and his supporters with some of the advantages that recognition provided to the TNC, thereby hastening Maduro’s exit. The consequences of recognition, however, can vary substantially across contexts. And there are aspects of the situation in Venezuela that may make recognition a riskier proposition.

In the Venezuela context, three areas stand out as having the most notable consequences flowing from recognition: U.S.-Venezuelan diplomatic relations, the control of overseas Venezuelan assets and the prospect of U.S. military intervention. This list is not exhaustive: Changes in recognition can also, for example, empower a new head of state to make decisions regarding domestic litigation and to ratify treaties on the state’s behalf. Yet these areas are the ones where the consequences of recognition seem most likely to impact the struggle over Venezuela’s future.

Diplomatic Relations

The most immediately visible effect of a change in recognition often occurs in states’ diplomatic relations. The international treaties that define the legal framework for diplomatic and consular activities make those activities contingent on the consent of both the sending state and the host state. By empowering a new government, recognition changes who one state views as having the capacity to provide that consent on another state’s behalf, including by sending diplomats overseas and permitting the presence of foreign diplomats within its own territory. Where views on who has this authority differ, the issue can become a source of serious diplomatic tension.

This is clearly on display in Venezuela. Among Maduro’s first reactions to Trump’s recognition of Guaidó was to sever diplomatic relations with the United States, specifically by recalling Venezuelan diplomats from the United States and ordering all U.S. diplomats to depart Venezuela within 72 hours—both accepted, if severe, measures under international law. Venezuelan diplomats in the United States largely complied, though at least one defected instead of returning home. The United States, however, has refused to obey on the grounds that Maduro no longer has the legal authority to expel U.S. diplomats. While most U.S. diplomatic staff left before the 72-hour deadline, a core set of senior officials has remained in place at the U.S. Embassy in Caracas, in pointed defiance of Maduro’s order.

Allowing Guaidó to operate foreign diplomatic missions on Venezuela’s behalf gives him a powerful platform from which to advocate for his cause. The State Department has already accepted Guaidó’s designation of a new chargé d’affaires in the United States, giving him a representative who can lobby for support and make direct contact with the broader international community (particularly through the various U.N. missions in New York). This platform only grows as more states recognize Guaidó. And Maduro’s own platform shrinks, leaving him more internationally isolated.

Yet citing Guaidó’s authority as a basis for leaving U.S. personnel in Caracas places the United States in an extremely dangerous position. Rightly or wrongly, Venezuela’s governmental institutions—notably its courts and security forces—still view Maduro as the head of state. This means that, in their view, U.S. diplomats who remain in Venezuela without his consent—and past a reasonable period for departure—are no longer entitled to the privileges and immunities provided by international law and could be subject to arrest. Forcibly entering the U.S. Embassy to do so would still be a major treaty violation, as would allowing armed gangs of private citizens to do the same—but both are possibilities. More likely, Maduro and his allies will cut off the facility’s utilities and access to supplies until U.S. personnel are forced to surrender. Whatever resources the embassy has stockpiled, they cannot be indefinite. As a result, the United States must hope that Guaidó successfully gains power before those resources run out—or before an unforeseen event, such as a medical emergency among the remaining U.S. personnel, cuts this timeline even shorter. Otherwise, the United States may find itself facing a hostage situation largely of its own making.

Control of State Property

Recognition can also change who controls a state’s overseas assets. Nearly all countries hold property outside their borders, ranging from diplomatic and consular properties to financial assets in foreign banks. When the state in which those assets are held changes its recognition policies, this can affect who can access or control those resources under that state’s domestic legal system. This is particularly true of the United States, whose central role in the global economy makes it a common depository for other states’ foreign currency reserves and other financial assets. Many such resources are held at U.S. Federal Reserve banks, which implement U.S. recognition decisions as a matter of policy. Yet U.S. law also requires that federally insured private banks do the same, substantially expanding the impact of U.S. recognition decisions.

For Guaidó, this may be the most significant consequence of Trump’s recognition decision. Within 48 hours of the president’s announcement, the State Department certified Guaidó as having the capacity to receive and control assets held in Venezuela’s name. This reportedly gave him control of Venezuelan accounts held at the Federal Reserve Bank of New York and potentially elsewhere. The benefit to Guaidó is effectively twofold: It provides him with access to substantial new financial resources, which may prove particularly important given efforts by Venezuelan authorities to freeze his in-state assets, and it deprives Maduro of the same. These effects will only be amplified as more states recognize Guaidó or at least question Maduro’s capacity to act on the state’s behalf. The United Kingdom, for example, has already refused to allow Maduro to withdraw from Venezuelan foreign currency reserves held there, underscoring how economically isolated the Maduro regime may yet become.

The United States has also taken steps to help Guaidó assert control over Venezuelan state-owned enterprises—in particular, the state-owned oil company Petróleos de Venezuela, S.A (PdVSA) and its U.S. subsidiary, Citgo. Guaidó has requested the appointment of new boards for both, but neither entity has complied. In the meantime, the United States has installed economic sanctions channeling any revenue that either may generate into an account that is blocked from Maduro’s access, which the United States intends to make available for Guaidó’s use on Venezuela’s behalf. The Trump administration has in turn identified the transfer of control to Guaidó as one of the conditions for the sanctions’ removal.

Once again, however, these policies also bring risks. Venezuela’s delicate economy relies heavily on the financial resources now in Guaidó’s control. And despite its corruption, the Maduro regime is currently the only one in a position to provide the public services that those funds help support. Requiring Guaidó’s sign-off gives him leverage in determining how these resources are used, forcing the Maduro regime to involve him in governing somehow if it wishes to access them. Yet if the Maduro regime proves less sensitive than Guaidó and the United States to these humanitarian costs, the advantage may shift in Maduro’s direction. Either way, a prolonged cut-off risks rapidly worsening Venezuela’s dire humanitarian crisis—which is why select oil revenues have been exempted from prior sanctions. This creates a narrow window within which Guaidó must either secure control of the country or come to some understanding with the Maduro regime, lest the conditions in Venezuela deteriorate to intolerable levels.

Military Intervention

In providing a new government the authority to grant consent on behalf of a state, recognition permits that government to authorize a range of otherwise prohibited activities within its territory by foreign states, up to and including military intervention. Absent consent—or some other basis in international law, such as self-defense—these actions would likely violate the U.N. Charter’s prohibition on the use of force or otherwise infringe on the sovereignty of the state in question. With consent, a foreign state can effectively act in place of the host state, pursuing any activities that the latter could pursue consistent with its international legal obligations.

In the Venezuelan context, the impact of recognition on the prospect of U.S. military intervention has received perhaps the most attention. In part, this reflects the rhetoric advanced by Maduro’s supporters, who paint Guaidó’s movement as a U.S.-backed coup attempt. The Trump administration, however, has provided substantial ammunition for this argument by refusing to rule out military intervention in Venezuela and implying that such intervention could take place if Maduro were to harm Guaidó or target U.S. diplomatic personnel still in Caracas. By providing consent on Venezuela’s behalf, Guaidó may—at least in the eyes of those who recognize him—be able to authorize U.S. military intervention for any of these purposes as a matter of international law. Guaidó could even request that the United States act in collective self-defense with Venezuela against external threats—which might include those foreign governments, such as Cuba, that are believed to be providing military assistance to the Maduro regime.

But even if Guaidó were to do so, many hurdles would remain before the Trump administration could take military action in Venezuela. Under U.S. domestic law, such action would require either authorization from Congress or a determination by the president that such action is within his Article II constitutional authorities. The latter is certainly possible, given the broad claims the executive branch has made regarding such authority in the past—especially if the operation were more narrowly tailored to well-established U.S. interests, such as protecting U.S. Embassy personnel remaining in Caracas. Yet experts anticipate that a U.S. intervention aimed at toppling Maduro would be lengthy, costly and immensely difficult, and would require substantial U.S. ground forces—particularly if Guaido continues to lack any meaningful support among Venezuela’s military. Such an operation would be beyond the claims of Article II authority previously made by the executive branch, which often ties factors such as lengthiness and the use of U.S. ground forces to the types of conflicts requiring congressional authorization. Perhaps more important, pursuing such action without congressional support or a precedent to point toward would come with immense domestic political costs. Either way, Guaidó’s consent would be of limited relevance.

The same may not be true, however, for a more limited type of military intervention, namely arms sales and other forms of security assistance. Once again, Guaidó’s consent could remove many international legal barriers to such activities. And the domestic legal authorities used for most U.S. security assistance implicitly incorporate U.S. recognition decisions by limiting their scope to the official security forces of friendly foreign countries. Recognizing Guaidó as Venezuela’s head of state may empower him to establish new official security forces eligible for these forms of conventional U.S. security assistance. That said, this could be a major undertaking, one that Guaidó—despite a stated interest by some defectors from the Venezuelan military—does not yet appear to be contemplating.

Of course, this might all change if Guaidó were to secure substantial military support within Venezuela—a possibility he has reportedly explored in secret negotiations with Venezuelan military officials who are questioning their loyalty to Maduro. A more limited military operation intended to support Guaidó’s military forces against the Maduro regime—one that does not involve substantial U.S. ground forces—might be viewed as more consistent with prior claims of Article II authority, as well as less politically risky. Similarly, inheriting part of the existing Venezuelan military might allow Guaidó to fast-track the creation of a new official security force that meets U.S. standards for security assistance. If this comes to pass, then some form of U.S. military intervention in Venezuela might become more likely—though for reasons only partially related to recognition.

Out on a Limb

The logic behind the Trump administration’s recognition of Guaidó seems clear. The National Assembly’s decision to invoke Venezuela’s constitution and appoint Guaidó as interim president presented a relatively organic alternative to Maduro with a credible claim to institutional and political legitimacy. Recognition, in turn, appeared to provide a fast means of bolstering Guaidó’s movement and increasing the pressure on Maduro—not only by isolating Maduro politically and economically but also by amplifying Guaidó’s own international platform and providing him access to new economic resources.

The risk, however, is that this policy is far ahead of the facts on the ground. The effective control standard usually applied to governmental recognition is intended to ensure that the authority provided to national governments by the international community aligns with their domestic capabilities. But thus far, Guaidó’s influence over the situation on the ground is limited, particularly when compared to the Maduro regime. This may change if Guaidó persuades the military or other components of the Venezuelan government to join his movement, or if Maduro ultimately feels compelled (or is forced) to depart. Yet the Maduro regime has proven resilient, and may yet find new international sponsors—particularly China and Russia—willing to help it endure its growing isolation from the rest of the world. If this comes to pass, then much of the international community may find that it has severed ties with the only people who actually control the conditions within Venezuela.

For its part, the Trump administration has not only accepted this risk but also magnified it. By keeping U.S. diplomats in Caracas in defiance of Maduro’s order, it has essentially started a countdown to a potential hostage crisis unless Guaidó is able to come to power. Cutting off Venezuela’s oil wealth similarly risks a destabilizing humanitarian catastrophe unless Guaidó takes control of the government or he and Maduro reach some understanding on how oil revenue is to be used. Such brinkmanship may be the Trump administration’s attempt to clarify its resolve by tying itself to the mast—a move that may also lend credibility to the administration’s threats of military intervention, despite the major legal and political risks such action would entail. Whatever the intent, the end result is to raise the already substantial stakes of what the United States has riding on Guaidó’s success.

This bet may well pay off, in no small part because of the pressure the United States and its allies have brought to bear through their recognition of Guaidó. If it does not, however, the United States may find itself backed into a corner with few good options left.

Scott R. Anderson is a fellow in Governance Studies at the Brookings Institution and a Senior Fellow in the National Security Law Program at Columbia Law School. He previously served as an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State and as the legal advisor for the U.S. Embassy in Baghdad, Iraq.

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