Stupid and Incompetent Foreign Policy Towards Venezuela — “Intervention to Protect Nationals” (Updated)

Update: The U.S. and Venezuela have reached agreement to keep their diplomats in each other’s coountry for 30 days, while “interest section” arrangements can be worked out.

See Ana Vanessa Herrero and Megan Specia, “Venezuelan President Does an About-Face That Allows U.S. Diplomats to Stay,” New York Times, January 26, 2019.

This news signals a welcome de-escalation of tensions that could lead to the use of force to protect U.S. diplomats in Venezuela. The talk of negotiations to establish “interest sections” under the aegis of other countries also suggests that the U.S. is having second thoughts about dealing with Juan Guaidó, at least on practical matters on the ground, as if he headed the government of Venezuela.

There remain soem 50,000 American citizens in Venezuela. Should they become endangered by the actions of the authorities or by the actions of mobs of Maduro supporters, the United States could still use the “intervention to protect nationals” argument to justify the use of military force in and against Venezuela.

Original article

Secretary of State Mike Pompeo addressed an emergency meeting of the U.N. Security Council today, after barely winning the required nine votes (of the 15 members) on the procedural vote required to hold the meeting.

See

Carol Morello, Pompeo presses U.N. Security Council to ‘pick a side’ in Venezuela’s crisis”,” Washington Post, January 26, 2019.

“Trump Steers Dangerous Course in Venezuela,” The Trenchant Observer, January 25, 2019.

Pompeo and the U.S. did not appear to understand the role of the Security Council or how it works.

The move appeared to be purely a propaganda stunt, though it may have also been an attempt to prepare the Security Council to vote against any draft resolution that might be introduced after the United States engages in the illegal use of force against Venezuela in violation of Article 2 paragraph 4 of the U.N. Charter.  The U.S. can veto any such resolution, so the meeting must be seen as a mere attempt by the United States to drum up political support for its campaign to oust Nicolás Maduro from power in Venezuela.

The whole Venezuelan policy of the U.S. has the air of rank amateurism conducted by officials who are ignorant of history and who have not done their homework.  Efforts to hector Maduro from power will not succeed, while the use of any military force by the U.S. against Venezuela is likely to be highly counter-productive.

The one language which is spoken and heard at the United Nations is international law.  And that is the one language which Donald Trump and Mike Pompeo and the Trump administration do not speak.

U.S. foreign policy towards Venezuela appears to be a caricature of prior U.S. policy in Latin America, even when it sought to support military intervention to overthrow governments in the region.

Earlier efforts at U.S. military intervention were often cloaked as collective action by the Organization of American States acting as a “regional enforcement agency” under the U.N. Charter.  Article 53(1) of the Charter establishes that any such action requires the approval of the U.N. Security Council. The U.S. developed and advanced a theory according to which failure to disapprove any such regional enforcement action satisfied the requirements of Article 53(1).

Here the United States is not even close to securing the two-thirds vote of OAS members that would be required for the body to take any such regional enforcement action, whether that be the adoption of economic sanctions or the use of military force.

The United States appears to be preparing the terrain for the use of force in Venezuela, which is likely to be justified as an “intervention to protect nationals”.  If that occurred, the matter would most certainly be brought before the Security Council for debate.

One of the bedrock principles of international law is that foreign countries, whether singly or collectively, cannot intervene in the internal affairs of another state in order to secure a regime change.  This prohibition is particularly strong as regards the use of force, but also includes coercive economic measures such as the adoption of collective economic sanctions.

The wild gyrations in U.S. rhetoric, with Pompeo now charging that Venezuela is controlled by Cuba or Russia,  suggest strongly that the U.S. has not seriously thought through the implications of its actions or their legality under international law.  The appointment of Elliott Abrams as special envoy for Venezuela—Abrams  helped oversee U.S. efforts to overthrow the Sandinista government of Nicaragua in the early 1980’s—does not augur well for the legality under international law of U.S. efforts to oust the Maduro regime.

Despite the fact that the best and most authoritative international lawyers in the government are to be found in the Office of the Legal Adviser of the State Department, it appears that Mike Pompeo has either not sought or is ignoring their advice on the international law issues related to U.S. policy towards Venezuela.

Arguments to the Security Council and other nations will not carry weight, beyond one or two news cycles, if they are not anchored in international law.

The Trenchant Observer

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The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.