[Alonso Illueca is a lawyer and adjunct Professor of law at Universidad Catolica Santa Maria La Antigua and Universidad del Istmo Panama.]
On May 31, 2017, the Meeting of Consultation of Ministers of Foreign Affairs (MCMFA) of the Organization of American States (OAS) will take place to consider the situation in Venezuela. This meeting was convened by the Permanent Council’s (PC) through resolution 1079/17 and based on the OAS Charter, articles 61 and 62 (see here). For several months, Venezuela has been under political turmoil. This state of affairs threatens the country’s democratic order and institutions. Moreover, Venezuela’s ongoing bid for withdrawal from the OAS is detrimental to Inter-American multilateralism. An effective Venezuelan withdrawal would set a precedent for future cases and weaken the OAS position vis-à-vis other regional organizations (CELAC). The current situation and the upcoming MCMFA provides an opportunity to consider the tools that international law provides to the OAS and it’s member States for preserving the organization’s membership. This article offers a perspective on some of the available options to the OAS for maintaining its status as the foremost regional agency of the American Hemisphere.
Venezuela’s withdrawal from the OAS
As a response to the PC resolution 1079/17 and the upcoming MCMFA, the Venezuelan Foreign Minister announced that the country would present a “letter of resignation” (in Spanish only) to the OAS. This letter, dated 27 April 2017, claims that the OAS is acting as an instrument for United States’ interventionism and presents to the Secretary General of the OAS (OASSG) the official notification of Venezuela’s definitive withdrawal from the organization. It is important to note that Venezuela stressed its willingness to comply with the “denunciation” procedure established in the OAS Charter.
Article 143 of the OAS Charter establishes that a withdrawing party must provide a written notification of its intentions to the OASSG, and after two years of such notification the withdrawal becomes effective. Additionally, it states that after this period the State concerned “shall cease to belong to the Organization after it has fulfilled the obligations arising from the present Charter”. With the aforementioned letter, Venezuela has only complied with one of these requirements. All things considered, Venezuela would cease to be an OAS Member State on 27 April 2019, as long as it fulfills its obligations under the OAS Charter.
The Venezuelan crisis and the Inter-American Democratic Charter
From a practical perspective, the Venezuelan government has interrupted the country’s democratic order twice, at least, since the start of crisis. First, by failing to convene a revocation referendum as established in the Venezuelan Constitution (in Spanish only). Second, by suspending the powers of the National Assembly through the Government controlled Supreme Court (see PC Res. 1078/17). This “suspension of powers” was later revoked.
With regard to the interruption of the democratic order, it is necessary to consider the paramount importance given to democracy in the OAS’ structure. The preamble of the OAS Charter considers democracy as an indispensable condition for the stability, peace and development of the region. It also lists among its essential purposes “to promote and consolidate representative democracy, with due respect for the principle of non-intervention.” Moreover, it mentions among its principles the effective exercise of representative democracy.
The OAS Charter provides for the suspension of member States whose democratically elected governments have been overthrown by force. In 2001, the Third Summit of the Americas expanded this provision by adopting the Declaration of Quebec City, containing the “democracy clause,” which establishes that “any unconstitutional alteration or interruption of the democratic order in a state of the Hemisphere constitutes an insurmountable obstacle to the participation of that state’s government in the Summits of the Americas process.” On September 11 of the same year, the Inter-American Democratic Charter (IADC) was adopted. Article 19 of the IADC further expands the democracy clause to all the organs and bodies of the OAS, including the General Assembly (GA), the MCMFA, specialized conferences, commissions, and working groups. Further, article 20 establishes that prior to suspending a member State, the PC may undertake diplomatic initiatives to restore democracy.
In its more than 15 years of history, the IADC has been invoked in situations involving Venezuela (2002), Nicaragua (2004, 2005), Ecuador (2005, 2010), Bolivia (2005, 2008), and Honduras (2009). Only once a State has been suspended through the IADC. In 2009, Honduras right to participate in the organization was suspended in a special meeting of GA, after OASSG’s diplomatic had initiatives failed (AG/Res. 2 (XXXVII-E/09)). It is important to note that, while suspended, Honduras continued to be a Member of the Organization, obliged to fulfill its obligations.
The OAS’ dilemma: What to do next? Is it too late?
In 2016, the OASSG invoked the IADC (art. 20) with regard to the situation in Venezuela (here). In a recent NY Times article, he called for free and fair elections in Venezuela as a mechanism for avoiding their suspension from the OAS by way of the IADC. The OASSG concluded that suspension is the last resource in the regulatory framework of the IADC. In the same vein, the PC, when enacting resolution 1078/17, decided only to undertake diplomatic initiatives under the IADC, by inter alia considering convening the MCMFA. As mentioned above, the upcoming MCMFA was called upon by the PC (resolution 1079/17) and seems to be part of the diplomatic initiatives considered by resolution 1078/17 undertaken prior to adopting the last resort measure (suspension).
In this sense, it seems that the OAS’ diplomatic initiatives and even the “suspension” option came a little too late, as Venezuela has already initiated its withdrawal process from the organization. Had the GA convened in special session and suspended Venezuela’s participation in the OAS, prior to the issuance of Venezuela’s withdrawal letter of 27 April 2017, any subsequent denunciation attempt would had been ineffective.
Nevertheless, the withdrawal clause of the OAS Charter may prove useful in constraining Venezuela from exiting the organization. When a State decides to withdraw from a treaty, it needs to comply with the procedure agreed upon or obtain the consent of all the States parties (see, 1969 Vienna Convention on the Law of Treaties (VCLT) art. 54). In the case at hand, the OAS Charter requires the State concerned to notify its intentions to the SG, wait a mandatory period of 2 years, and fulfill its obligations arising from the Charter. The latter requirement could be interpreted narrowly to include financial obligations only (Venezuela has approximately an 8 million dollar debt with the OAS), which is the generally held view, or be expanded to include the principles and purposes included in Charter dealing with democracy.
The second option could potentially add some extra burden to Venezuela’s right to withdraw. If this option is analyzed in conjunction with the paramount importance given to the IADC in each of the documents issued by the PC or the OASSG, it could be argued that among the obligations for Venezuela arising from the Charter are the ones supporting representative democracy. Nonetheless, considering that this is the first time that a State withdraws from the OAS, there are no factual precedents on which to draw upon. Consequently, when considering this question, resort to the VCLT’ general rule and supplementary means of interpretation (art. 31-32) would be necessary. In any event, the OAS Secretary of Legal Affairs stressed that the main obligation of Venezuela would be to pay the debts it owes to the organization. He also articulated that Venezuela would remain a full member of the organization with all its rights and obligations, at least, for the next two years.
Besides its many shortcomings, the IADC is yet to be considered a legally binding instrument (see Perina). It provides for collective action in cases of “unconstitutional alteration of the constitutional regime” through diplomatic initiatives and suspension. In the case of Venezuela, collective action is currently limited to diplomatic initiatives. However, it remains difficult to understand which would be the practical effect of suspension if Venezuela has already decided to withdraw from the organization. In this sense, would the suspension of the membership suspend the 2-year denunciation notice period? A case with some similarities, if any, is the one North Korea and its withdrawal from the Non-Proliferation Treaty (NPT). In that case, the withdrawal was unilaterally suspended by North Korea for 10 years. For many reasons, North Korea’s status in the NPT remains contested until today. However, it differs from the case of Venezuela because the decision to suspend the withdrawal was taken by the withdrawing State, not implicitly ordered by the organization in question.
Some analysts suggest that the OAS’ ongoing role in the Venezuelan crisis has compromised its natural role as a prospective mediator. In shaping its own practice the OAS and its Member States must consider the principles and purposes of the organization and the applicable rules of international law. Nevertheless, the OAS and its legal experts may have a unique opportunity for shaping regional practice with regard to the law of treaties and the regulatory framework of the IADC.