Feb 082019
What does international law say about the economic boycott, political interference and the threats against Maduro?

By Urs P. Gasche | infosperber 05 Feb 2019

Almost two weeks have passed since Venezuelan Parliament President Juan Guaidó declared himself interim president. But despite the intensive reporting, little is read and heard about whether the various interventions abroad respect international law.

Not only governments, but also many media denounce violations of international law very selectively. The same people who repeatedly accuse Russia of „annexing the Crimea in violation of international law“ and of „interfering in Eastern Ukraine in violation of international law“ remain conspicuously silent in matters of international law, for example when Turkey occupies border areas in Syria militarily and brings them under its control, or when the USA sets up and maintains military bases in Syria.

Classic international law is of little use, some say. It is outdated and not recognised by all countries. Because of the veto right, the UN Security Council is often unable to act and violations of the UN Charter are not sanctioned.

But especially for small states such as Switzerland, it is essential that the law of the strongest does not apply among the states, but that international norms, as laid down in the UN Charter, promote as peaceful a coexistence as possible. At its core is the ban on the use of force enshrined in the UN Charter. This includes unilateral economic sanctions. However, if such sanctions are adopted by the UN, Switzerland, as a member of the UN, is also obliged to implement these sanctions.

The UNO ban on wars

The UN Charter has enshrined the prohibition of violence in Article 2:

All members shall refrain in their international relations from … Threat or use of force.

The Charter provides only two exceptions to this war ban: 1. The right to self-defence when a country is attacked. 2. if the UN Security Council decides with a mandate to wage war against a country. The Security Council can do this even if a government does not protect the population in its own country against genocide, war crimes, ethnic cleansing or serious crimes against humanity («Responsibility to Protect»).

The second fundamental UN principle of non-interference in the internal affairs of foreign states aims in particular to ensure that major powers do not use internal unrest or even civil wars in third states to interfere and assert their own interests.

Interferences in Venezuela

The anti-capitalist governments of Hugo Chávez and Nicolás Maduro speculated on a falling oil price – 90 percent of export earnings come from oil exports – and ran the country down through clientelism and enrichment of the power gang. Unilateral US sanctions gave the severely weakened economy the rest (documentation by Ben Norton here) and led the country into dependence on Russia. Large parts of the population suffer from devastating hyperinflation. It led to empty shops, widespread poverty and the emigration of ten percent of the 32 million inhabitants.

Politically, Maduro in particular trampled democratic institutions underfoot. Self-proclaimed President Juan Guaidó described Maduro’s recent presidential re-election in the New York Times on 1 February as illegal and put the number of political prisoners at 600.

From this „socialist prison“, which has brought oppression, poverty and misery, one must liberate the Venezuelan people, demands for example the head of journalism Pascal Hollenstein in „Switzerland on Weekends“ and „Eastern Switzerland on Sundays“.

A central question and further questions

However, Hollenstein does not answer a central question: When is it legitimate or even required under international law for the USA (or Russia or China) to bleed out a third country with a de facto economic boycott, to block billions in assets of this government or this state abroad, to demand new elections, to recognise an opposition member as the new head of government and to help him to power financially, logistically and, if need be, militarily?

According to the UN Charter, the USA, Russia or China may only use economic or military force against a country if the Security Council decides on such an intervention with a qualified majority and without a veto by one of the permanent members*. The prerequisite would be that a government does not protect the population in its own country against genocide, war crimes, ethnic cleansing or serious crimes against humanity.

In the case of Venezuela, the Security Council will not give the green light for foreign intervention because Russia and China would veto such a decision. However, the question arises as to whether the economic, social, political and human rights situation in Venezuela would justify such a Security Council decision at all.

Has there been genocide? War crimes? To ethnic cleansing? To serious crimes against humanity?

Whether at least one of these preconditions for interference by the major powers and the UN Security Council has been fulfilled should be reported by the media as factually as possible.

In his editorial in the „New York Times“ of February 1, 2019, self-proclaimed President Juan Guaidó does not rely on any of these conditions of intervention. What he claims are rather violations of the Venezuelan constitution („unlawful election of President Maduro on 20 May 2018“), a humanitarian crisis due to lack of food and medical care, the exodus of three million inhabitants and 600 political prisoners.

This raises further questions:

  • Which other countries could or should put pressure on the USA (or Russia or China) with economic sanctions as well? In which other countries also recognise and support opposition groups? Where could or should they also intervene to improve the economic and political destiny of the populations? In the Congo after the latest blatant election fraud, in Rwanda, the Central African Republic, Zambia, Zimbabwe, Nigeria, Bangladesh, Iran, Saudi Arabia, Egypt (with around 60,000 political prisoners, 30 times more in relation to the population than in Venezuela)?
  • Do the interventions of the great powers in Kosovo, Libya, Afghanistan, Iraq, Syria, Crimea, East Ukraine all violate international law and the UN Charter?
  • What role have the major oil deposits played and continue to play in the interventions in Libya, Iraq and Venezuela?
  • On what international legal basis do EU states ultimately demand elections in a foreign country with the threat of consequences?

On the last question: Venezuela has signed the International Covenant on Civil and Political Rights ICCPR. That is why free and fair elections are no longer a purely „internal“ matter, says Stefan Oeter, professor of international law in Hamburg. Contracting parties would therefore not have to recognise President Maduro as President.

However, the ICCPR does not provide for such a sanction, but rather for a state complaint procedure. The ICCPR has nothing to do with classical international law and the UN Charter.

Juan Guaidó’s recognition as president with serious consequences

Just an hour after Parliament President Juan Guaidó appointed himself President, the US recognised him as Venezuela’s only legitimate President and called on South American and European states to do the same.

According to the FDFA, Switzerland, like many other states, does not recognise any governments, but only states. Governments can change, a state remains a state.

However, Switzerland had also already denied governments, although they were still exercising power effectively, but had lost their legitimacy, as for example in the course of the Carnation Revolution in Portugal in 1974. Rainer J. Schweizer, professor emeritus of international law in St. Gallen, draws attention to this fact. He therefore believes that Switzerland could soon recognise Guaidó as its president as soon as the majority of EU states have done so.

It is surprising, however, how many media have described Guaidó’s recognition as a president as something normal. The SRF Tagesschau reported several times that even the EU Parliament had recognised Guaidó as President. The Tagesschau did not mention that the parliament has no legal legitimacy at all to recognise governments or states. It was a purely political resolution.

After all, SRF-online as the only medium far and wide interviewed a professor of international law. Oliver Diggelmann of the University of Zurich explained that states could „in principle“ only recognize a government that „effectively holds the power in the state“.

Christine Kaufmann, Professor of International Law at the University of Zurich until the end of 2018, had emphasized the same thing: „A government must have asserted itself“ before it can be recognized.

In history, however, there have been cases where „governments“ that do not exercise effective power have been recognized, Professor Diggelmann said: „In Haiti in 1994, in Sierra Leone in 1997, in Gambia in 2017, and in Libya the recognition of insurgents when Ghadaffi was still in power.

Stefan Oeter, professor of international law at the University of Hamburg, admitted to Infosperber that the recognition or non-recognition of governments is carried out „very selectively“:

In most cases of undoubtedly effective governments with dubious legitimacy, one avoids asking questions of legitimacy.

The recognition of „governments“ or „presidents“ who do not exercise effective power in the country can, however, have drastic consequences. A recognized government could not only gain access to state funds abroad, but also authorize the intervention of foreign powers, explained Professor Oliver Diggelmann. If Guaidó calls on the USA to help, the USA itself could legitimize military intervention with a call for help under international law. [Just as Russia and Iran legitimise their interventions in Syria with Assad’s cry for help under international law.]

Diggelmann on the recognition of Guaidós as interim president:

It was an extraordinarily aggressive recognition. The idea that the US might end up intervening militarily does not seem to me to be a figment of the imagination.

So far Guaidó has only requested aid deliveries from abroad. In view of the enormous extent of the economic hardship and the repression, helping refugees and starving people in Venezuela and neighbouring states diplomatically and economically without military intervention is „a requirement of international and human rights protection obligations,“ explains Professor Rainer J. Schweizer, professor of international law.

On the other hand, the USA’s access to the Venezuelan oil company and the blockade of oil sales by the USA as a means of exerting pressure on the Maduro government „must be regarded as an intervention that is unlawful under international law“.

Stefan Oeter, professor of international law at the University of Hamburg, has the same view:

Economic sanctions can in principle be imposed against ‚illegitimate‘ governments, i.e. governments that have come to power through a breach of the law. On the other hand, the use of military force against such governments is taboo; military coercive measures could at most be ordered by the UN Security Council.

Prerequisites for such a firing of the Security Council would be genocide, war crimes, ethnic cleansing or serious crimes against humanity. Only then would „Responsibility to Protect“ come into play.

„Cold warriors are back“

In the «New York Times», history professor Patrick Iber of Wisconsin University in Madison spoke: „No matter how bad Maduro is, the US is not a trustworthy partner in pushing a regime change.“ In the course of the 20th century, the USA had repeatedly interfered in the internal affairs of South American states because they regarded South America as their geopolitical hinterland. It was reminiscent of Guatemala, Brazil or Chile. There the USA had brought military dictators to power and fouled for the fate of the populations.

For Iber, the Cold Warriors are back today. John R. Bolton, a fervent supporter of the war in Iraq, is the leading figure in US policy towards Venezuela. On television, Bolton asked President Maduro to „retreat to a beautiful, quiet beach far away from Venezuela, otherwise he will land on the beach of Guantanamo“.

In the TV channel «FoxBusiness» (from minute 5.58) Bolton explained:

For the USA it would be of great advantage if US oil companies could invest and produce in Venezuela. That would be good for the populations of both Venezuela and the United States.

The White House appointed Elliott Abrams, of all people, as the special representative for the „reintroduction of democracy in Venezuela“. Abrams justified human rights violations by the USA in El Salvador during the Reagan administration. He campaigned for military aid to dictator Ríos Montt in Guatemala. At the same time, he bypassed the White House and financed arms deliveries to the contra rebels in Nicaragua. He was convicted of lying to Congress. Abrams was also one of the most vehement supporters of the US invasion of Iraq.

Thirdly, US Secretary of State Mike Pompeo is one of the „Cold Warriors“. As former CIA director, he was instrumental in the Iraq war. He successfully campaigned for the termination of the nuclear treaty with Iran.

Translation: DeepL