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The Statute that Governs the Transition to Democracy and the Int'l Recognition of the Venezuela Interim President

Published online by Cambridge University Press:  16 March 2022

José Ignacio Hernández G.
José Ignacio Hernández G.*
Affiliation:
Administrative Law Professor, Catholic University and Central University, Venezuela; Visiting Professor, Castilla-La Mancha University, Spain; Fellow, Harvard Kennedy School, United States.
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Extract

Since January 23, 2019, several countries, including the United States and the United Kingdom, have recognized the speaker of the Venezuela National Assembly, deputy Juan Guaidó, as interim president until free and fair presidential elections are called. That recognition was a consequence of the repudiation of the 2018 presidential election, in which the incumbent president, Nicolás Maduro, was fraudulently proclaimed president for the term that began on January 10, 2019. A few days later, on February 6, 2019, the Venezuelan National Assembly approved a special law, the Statute that Governs the Transition to Democracy to Restore the Enforcement of the Constitution of the Bolivarian Republic of Venezuela (the Transition Statute). The primary purpose of the Transition Statute was to regulate the exercise of the presidency by the speaker of the National Assembly acting as interim president, based on Article 233 of the Venezuelan Constitution.

Information

Type
International Legal Documents
Information
International Legal Materials , Volume 61 , Issue 5 , October 2022, pp. 820 - 834
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of The American Society of International Law

Introduction

Since January 23, 2019, several countries, including the United States and the United Kingdom, have recognized the speaker of the Venezuela National Assembly, deputy Juan Guaidó, as interim president until free and fair presidential elections are called. That recognition was a consequence of the repudiation of the 2018 presidential election, in which the incumbent president, Nicolás Maduro, was fraudulently proclaimed president for the term that began on January 10, 2019. A few days later, on February 6, 2019, the Venezuelan National Assembly approved a special law, the Statute that Governs the Transition to Democracy to Restore the Enforcement of the Constitution of the Bolivarian Republic of Venezuela (the Transition Statute).Footnote 1 The primary purpose of the Transition Statute was to regulate the exercise of the presidency by the speaker of the National Assembly acting as interim president, based on Article 233 of the Venezuelan Constitution.Footnote 2

From the international public law perspective, the international recognition of the interim president according to the Transition Statute was an innovative approach of the government recognition, not based on the territorial control test but rather on the legitimacy principle. Regardless of the malpractices of the 2018 election, the Maduro government was—and still is—in control of the Venezuelan territory. Those malpractices led to the international repudiation of that election by several statements issued in 2018. In January 2019, the international community decided to take an additional step: regardless of the territory control, Maduro was repudiated as president, while the speaker of the National Assembly was recognized as interim president following the Transition Statute. That recognition was ratified by several court rulings in the United States and the United Kingdom.

This note is divided into two parts to explain the institutional context in which the Transition Statute was approved and its interpretation by foreign courts. The first part analyzes how several countries recognized the speaker as interim president after January 23, 2019, creating incentives to approve the Transition Statute. The second section explains the basic principles of the international recognition of the interim president by the U.K. and U.S. courts that interpreted the Statute.

The International Recognition of the Interim President and its Consequences in Terms of Legal Representation

Government recognition is “a matter of implication than express declaration.”Footnote 3 Hence, not all the political statements of recognition related to the interim president had specific consequences regarding the legal representation of the Government of Venezuela.Footnote 4 More precisely, to facilitate the practical implications of those statements in terms of legal representation of the Government of Venezuela, the National Assembly approved the Transition Statute that regulated the authority of the interim president based on Article 233 of the Constitution to legally represent Venezuela abroad.Footnote 5

For that purpose, the Transition Statute regulated the legal representation of the Government of Venezuela in countries that recognized the interim president and disowned Maduro as the legal representative of Venezuela, such as Colombia, the United Kingdom, and the United States. In the last two countries, the legal implications of the political statements of recognition were adopted by the courts because of litigation by creditors and the Maduro regime. Notably, in the United States, the Statute allowed the interim president to control Citgo, a U.S. refinery corporation and an affiliate of the national oil company, PDVSA.Footnote 6

In that sense, the Transition Statute created two administrative bodies to represent the Government of Venezuela. Concerning judicial representation before the courts, the Statute authorized the president to appoint the special attorney general.Footnote 7 Also, to legally represent administrative entities abroad—such as PDVSA and the Venezuelan Central Bank—the Statute vested in the interim president the authority to create ad hoc boards.Footnote 8 Once those bodies started to exert legal representation in the United States and the United Kingdom, Maduro's regime filed different claims before the courts that led to the interpretation of the Statute to derive practical implications from the political statements of recognition.

The International Recognition of the Interim President before the United States and the United Kingdom Courts and the Transition Statute

Nicolás Maduro challenged the legal actions of the speaker of the National Assembly acting as interim president, particularly in the United States and the United Kingdom. In the United States, that challenge was based on two causes: (1) the challenge against judicial representation that the interim president exercises through the special attorney in litigations related to the Venezuelan external debt; and (2) the claim filed by the former administrators of Citgo to annul the appointments of new administrators by the ad hoc board of PDVSA. In the United Kingdom, the challenge was related to the control of assets of the Venezuelan Central Bank, specifically the excess of a gold swap deposited in an escrow account in London and the gold deposits at the Bank of England.Footnote 9

To support those challenges, the Venezuelan Supreme Tribunal, under the political control of Nicolás Maduro, declared null and void the Transition Statute and the presidential decrees that appointed the special attorney general and the directors of the ad hoc boards. Moreover, Maduro politically persecuted the officials appointed by the interim president.Footnote 10

The courts in the United States and the United Kingdom decided that the political recognition of the speaker acting as interim president has binding legal effects. As a result, only the interim president can legally represent Venezuela abroad according to the Transition Statute.Footnote 11 Those rulings were based on the following principles:

  • • The recognition of foreign governments is a political decision exclusively vested in the Executive Branch (the presidency of the United States and Her Majesty's Government in the United Kingdom). The judiciary cannot challenge the political decision due to the separation of powers. In other words, the recognition decision is beyond the jurisdiction of the judiciary according to the “one voice doctrine.” In terms of foreign government recognition, the state should have one voice: that of the executive branch.Footnote 12

  • • According to the act of state doctrine, official decisions adopted by the recognized Government of Venezuela are presumed valid and binding, and cannot be challenged before foreign courts. That presumption applies to the Transition Statute and the presidential decrees that appointed the special attorney general and the ad hoc boards’ directors. Particularly in the United States, the courts emphasized that the official acts should have been adopted in Venezuela to generate legal consequences.Footnote 13

  • • The decisions of the Venezuelan Supreme Tribunal that declared the Transition Statute null and void could not generate legal consequences as long as they modify the implications of the political recognition of the interim president. In the United States, the courts decided that because the Supreme Tribunal is under the political control of Maduro, its decisions cannot be attributable to the recognized Government of Venezuela.Footnote 14 Although there is still (at the time of writing) a pending decision on the matter in the United Kingdom, the Supreme Court concluded that, regardless of the legal effects of the Venezuelan Supreme Tribunal decisions, it is not possible to apply those decisions to ignore the recognition of the interim president and accept Maduro's authority to represent the Central Bank.Footnote 15

Thus, the U.S. and U.K. rulings interpreted and applied the Transition Statute as a legal and binding official act of the recognized Government of Venezuela that vested in the interim president the authority to appoint the special attorney general and the directors of the ad hoc boards, which have the exclusive authority to exert judicial and legal representation of the Government of Venezuela.Footnote 16 Those were the practical implications of the political statements of recognition of the interim president, as regulated in the Transition Statute.

As long as those statements remain in place, the interim president will exert the exclusive representation of Venezuela, even though three years have passed since the original political statements were issued, and Maduro's regime is still usurping the presidency. That could create practical problems due to the difference maintained over time between the de jure recognition of the interim president and the de facto existence of Maduro's government.Footnote 17

THE STATUTE THAT GOVERNS THE TRANSITION TO DEMOCRACY AND THE INT'L RECOGNITION OF THE VENEZUELA INTERIM PRESIDENT

This text was reproduced and reformatted from the text available from the Southern District of Texas Judicial website (visited February 3, 2022), https://ecf.txsd.uscourts.gov/doc1/179134399808- (subscription only). It is also on file at the American Society of International Law. A certificate of translation is annexed to the statute.

THE NATIONAL ASSEMBLY OF THE BOLIVARIAN REPUBLIC OF VENEZUELA, Decrees the following:

STATUTE GOVERNING THE TRANSITION TO DEMOCRACY TO RESTORE THE EFFECTIVENESS OF THE CONSTITUTION OF THE BOLIVARIAN REPUBLIC OF VENEZUELA

INTRODUCTION

The Statute that governs the Transition to democracy to re-establish the effectiveness of the Constitution of the Bolivarian Republic of Venezuela is an act of direct and immediate execution of Article 333 of the Constitution. Its purpose is to return to the Constitution from the Constitution itself, to offer an orderly and guided course of action for the unique and imminent process of political change that has begun in the country. This is a normative initiative of the National Assembly that aspires to preserve the Constitution of 1999 as a pact in favor of the civic life of Venezuelans and as the basis for the democratic transition.

I

During the course of twenty years of the Bolivarian Revolution, a political system has been imposed that is not in line with the constitutional principles and the republican tradition of the country. Venezuelans have endured very serious material shortages and the radical reduction of all their rights, including political rights. Real socialism has subjected them to persecution, chaos and misery. In response to this situation, there is an urgent need to return to a system of constitutional democracy. In this regard, the higher values that inspire this Statute “are life, liberty, justice, equality, solidarity, democracy, social responsibility, constitutional supremacy, and, in general, the preeminence of Human Rights, ethics and political pluralism” (Article 5).

II

In order to explain the relevance of the norms presented below, it is necessary to present the democratic struggle that has taken place over the past few years. The conditions that currently favor a political change are not random. This is not a matter of a spontaneous collapse of the dictatorship. Rather, it is a heroic gesture of all the people of Venezuela, with the support of the international community in light of the seriousness of the autocratic expansion of the Bolivarian Revolution.

The liberation movement that began on January 10, 2019 took place when the opposing forces refused to participate in the fraudulent process of May 20, 2018, after refusing to sign the Electoral Agreement proposed by the representatives of Nicolás Maduro Moros in the Dominican Republic. On May 20, 2018 the de facto regime sought to simulate an election process under which the Venezuelan people could not exercise their right to vote freely, and they laid the basis for the scenario of usurpation that is currently occurring. The silence of citizens at the voting ballots has become a deafening cry for freedom that took away any legitimacy of the regime and has continued to grow to the present. Therefore, the constitutional time has arrived for a new elected President to be sworn in, what should have happened did not, and Nicolás Maduro Moros held on to the de facto power over the Executive Branch to deepen the usurpation.

III

After January 10, 2019 Nicolás Maduro Moros continued usurping the Presidency of the Bolivarian Republic of Venezuela and has installed a de facto government in the country. However, Article 333 of the National Constitution in effect states: this Constitution will not lose its effectiveness, if it is no longer followed due to an act of force or because it was revoked by any other means that is not established within it. In such case, all citizens, whether or not they are vested with authority, will have the duty to collaborate to re-establish its effectiveness. In this regard, being faithful to the Constitution and responding to their citizen awareness, the Venezuelan people are obligated to promote actions that enable the re-establishment of the constitutional order.

It should be noted that the Statute is based on what is a reality in the country and the world. While the Legislative Branch decrees this Statute, the Venezuelan people peacefully rebel against the usurpation and the free nations of the world recognize that the constitutional order has been broken. The entire world is a witness to the massive mobilizations of a peaceful and constitutional nature that show the irreversible desire for change and freedom that bursts forth in the heart of every Venezuelan.

A political, legal and constitutional situation has thus been configured that favors the return of the constitutional order. The National Assembly is aware of the urgency of the moment and offers this Statute as an efficient way to return to democracy along the paths established in the Constitution and to thereby ensure an orderly transition that would enable the inauguration of a system of freedoms that offers lasting and stable peace, from generation to generation.

IV

The Statute that governs the Transition to democracy to re-establish the effectiveness of the Constitution of the Bolivarian Republic of Venezuela contains seven (7) chapters and thirty-nine (39) Articles. Its design is specific, yet flexible. It seeks to efficiently face the challenges of institutional reconstruction while remaining open to the dynamics of political change. These characteristics – specificity and flexibility – will respond to the challenges faced to bring democratic opening, pluralism and the need to reach consensus among the different political forces that will participate in the process of reestablishing the constitutional order. In summary, this is a way to rationally, morally, legally, and technically bring together the democratizing energies of the organizations with political purposes and civil society to engage them in the best of the republican tradition of Venezuela.

The first chapter – General Provisions – includes the definition of democratic transaction, the legal nature of the State, the higher values that guided lawmakers and their objectives. In regard to the definition of democratic transaction (Article 3) it is worth noting that three progressive phases have been identified. First, the end of usurpation. Next, the installation of a provisional Government, and finally, hold free, transparent and competitive elections. In each of the progressive phases, the National Assembly will carry out attributions, also in a progressive manner, until they are able to implement the democratic transition and re-establish the constitutional order.

The second chapter covers the usurpation of the National Executive Branch. It specifies the absence of an elected president in the country, defines the situation as a case of usurpation, recognizes the inefficacy of the usurped authority, establishes the end of the duty to obey Nicolás Maduro Moros and identifies the end of the usurpation as the point that marks the liberation from the autocratic regime.

The third chapter specifies the activities of the National Assembly and its president while the Presidency of the Republic remains under usurpation. It starts by reaffirming the effectiveness of the constitutional period of the Legislative Branch. Next, it states that “the President of the National Assembly is, according to Article 233 of the Constitution, the legitimate acting President of the Bolivarian Republic of Venezuela” (Article 14). And in the following Articles it specifies the activity of the National Assembly, the path to re-insertion of the Venezuelan State among the free nations, and the guidelines that will orient the political and economic transition.

The fourth chapter develops the re-institutionalization of the entities of Citizen Power, of the National Electoral Council and the Supreme Court of Justice. The authority is established in the National Assembly to renew the public powers, and the path to establish legitimacy is established for Citizen Power, the Supreme Court of Justice and the Chancellors of the National Electoral Council, establishing a period of transition of the Public Powers designated during the provisional Government.

The fifth chapter establishes the guidelines for the formation of a provisional Government of national unity. Once the usurpation has ended, the National Assembly will guarantee full compliance with Article 233 of the National Constitution, since the liberation from autocracy has been achieved. The President of the legislative body “will act for a period of thirty (30) calendar days as the acting President of the Republic in order to carry out the process that will lead to the formation of a provisional Government of national unity and the adoption of the necessary measures to hold free and competitive presidential elections” (Article 25). This section presents the mechanisms that will guide the political process that will follow the end of the usurpation.

Following the path of transition established in Article 3, chapter six of the Statute refers to holding free elections. Mechanisms are established to ensure free, fair and competitive elections. A clear and unequivocal commitment is also made to “the strengthening of organizations with political purposes, in accordance with the terms established in Article 67 of the Constitution” (Article 32). This precise wording recognizes the importance of these levels to guarantee political participation and the stability of the democratic system.

Finally, the Final Provisions authorize the publication of the Law and order that extraordinary measures be taken for its promulgation, given the impossibility of publishing it in the Official Gazette.

V

The Statute that governs the Transition to democracy to re-establish the effectiveness of the Constitution of the Bolivarian Republic of Venezuela expresses the democratic vocation and the wish for freedom of the Venezuelan people. It is evidence of their political maturity and it should guide the country towards the re-inauguration of the constitutional order, in a peaceful and orderly manner, establishing the bases for a stable and lasting democracy.

THE NATIONAL ASSEMBLY OF THE BOLIVARIAN REPUBLIC OF VENEZUELA, based on Articles 7 and 333 of the Constitution DECREES the following:

STATUTE GOVERNING THE TRANSITION TO DEMOCRACY TO RESTORE THE EFFECTIVENESS OF THE CONSTITUTION OF THE BOLIVARIAN REPUBLIC OF VENEZUELA

CHAPTER I GENERAL PROVISIONS

Object

Article 1. The object of this Statute is to establish the normative framework that governs the transition to democracy in the Bolivarian Republic of Venezuela.

Democratic transition

Article 2. For the purposes of this Statute, transition is understood to be the path of democratization and re-institutionalization that includes the following stages: liberation from the autocratic regime that is oppressing Venezuela, formation of a provisional national unity government and the holding of free elections.

Purposes of democratic transition

Article 3. The purposes of the democratic transition are the full re-establishment of the constitutional order, the return of popular sovereignty through free elections and the reversal of the complex humanitarian emergency, in order to restore the system of freedoms, constitutional guarantees and human rights.

Legal nature

Article 4. This Statute is a normative act in direct and immediate enforcement of Article 333 of the Constitution of the Bolivarian Republic of Venezuela. The acts issued by the Government agencies to comply with the guidelines set forth in this Statute are also based on Article 333 of the Constitution and must be followed by all public authorities and employees, as well as by private parties.

Principles

Article 5. The higher values that guide this Statute are life, liberty, justice, equality, solidarity, democracy, social responsibility, supremacy of the Constitution, and in general, the preeminence of human rights, ethics and political pluralism.

Objectives

Article 6. According to Article 333 of the Constitution, the objectives of this Statute are:

  1. 1. To regulate the activities of the different branches of the Government during the democratic transformation, in accordance with Article 187, Number 1 of the Constitution, enabling the National Assembly to begin the process of re-establishing the constitutional and democratic order.

  2. 2. To establish the guidelines under which the National Assembly will protect the rights of the Venezuelan state and people before the international community, until a provisional national unity Government is set up.

  3. 3. To establish the bases to begin the national citizenship reconciliation process.

  4. 4. To establish the political guidelines that will guide the actions of the National Assembly in setting up a national unity government to stand in for the absence of an elected president, until free and transparent elections are held in the shortest possible timeframe.

  5. 5. To define the criteria of opportunity and speed to designate or ratify the holders of Citizen Power, Electoral Power and the Supreme Court of Justice, in accordance with the Constitution and the laws.

  6. 6. To set the guidelines to ensure the constitutional integration of the National Armed Forces in the process of democratic transition, in accordance with the guidelines in Article 328 of the Constitution.

  7. 7. To define the bases for the economic transition under the terms of Article 299 of the Constitution, and to reverse the complex humanitarian emergency.

  8. 8. To establish the general framework for implementation of the guidelines to restore popular sovereignty through free, competitive and transparent elections.

  9. 9. To fully reinsert the Venezuelan state within the international human rights protection organisms, rendering ineffective the accusation of violation of the OAS Letter, once again ratifying the American Convention on Human Rights and the mandatory litigation jurisdiction of the International Court of Human Rights; as well as ratifying the other treaties on human rights in the Inter-American System and in the United Nations System.

Progressive application of this Statute

Article 7.In order to ensure progressive compliance with the objective set forth in the preceding article, the three stages of democratic transition established in Article 2 of this Statute will be observed:

  1. 1. Liberation from the dictatorial regime, which will occur with the end of the of facto powers exercised by Nicolás Maduro Moros.

    2

  2. 2. Formation of a provisional national unity Government that ensures the re-establishment of a democratic system and convocation of free elections.

  3. 3. Re-establishment of the rule of law, holding free, transparent and competitive elections as soon as possible.

CHAPTER II

Usurpation of the National Executive Branch

Absence of an elected president

Article 8. The political event held on May 20, 2018 was not a legitimate presidential election. As a result, there is no legitimately elected president to assume the Presidency of the Bolivarian Republic of Venezuela for the 2019-2025 period.

Usurpation of the Presidency of the Republic

Article 9. As the result of the preceding article, the exercise of the Presidency of the Bolivarian Republic of Venezuela by Nicolás Maduro Moros or by any other employees or persons from the de facto regime constitutes usurpation of authority, pursuant to the terms of Article 138 of the Constitution.

Ineffectiveness of the usurped presidential authority

Article 10. The usurpation of the Presidency of the Bolivarian Republic of Venezuela results from the exercise of this position by whomever is not the elected president and does not have the constitutional authority to exercise it. All acts of usurped power from January 10, 2019 on are considered to be null and void, in accordance with Article 138 of the Constitution of the Bolivarian Republic of Venezuela.

End of duty to obey the usurped authority

Article 11. No citizen, whether or not he is vested in a position of authority, will obey the orders of the usurped authority. Civil servants who contribute to the usurpation will be liable for doing so, as set forth in Articles 25 and 139 of the Constitution. All civil servants have the duty to comply with Articles 7 and 333 of the Constitution to obey the legitimate Government Powers in Venezuela, especially in regard to the acts in the performance of this Statute.

End of usurpation and liberation from the autocratic regime

Article 12. The end of the usurped authority by Nicolás Maduro Moros and the formation of a provisional national unity government constitute the concurrent elements that configure the liberation from the autocratic regime established in Article 2 of this Statute.

CHAPTER III

Activity of the National Assembly and its President

National Assembly Term

Article 13. The National Assembly, elected by popular vote on December 6, 2015, will perform its constitutional functions within the framework of this Legislature until January 4, 2021. On January 5, 2021, the new Legislature of the National Assembly will be sworn in, pursuant to Article 219 of the Constitution of the Bolivarian Republic of Venezuela; for this purpose, parliamentary elections will be held during the last quarter of 2020, pursuant to what is set forth in the constitutional rules and in the electoral laws.

President of the NA as Acting President of the Bolivarian Republic of Venezuela

Article 14. Pursuant to Article 233 of the Constitution, the President of the National Assembly is the legitimate Acting President of the Bolivarian Republic of Venezuela. The acts of the Acting President will be submitted to parliamentary control by the National Assembly in accordance with Article 187, Number 3, of the Constitution.

Defense of the rights of the Venezuelan people and State

Article 15. The National Assembly may make the decisions necessary to defend the rights of the Venezuelan State before the international community, in order to safeguard the assets, goods and interests of the State abroad, and to promote the protection and defense of the human rights of the Venezuelan people, all in accordance with the international treaties, pacts and agreements in effect.

In exercise of the attributions resulting from Article 14 of these Statutes and within the framework of Article 333 of the Constitution, the acting President of the Bolivarian Republic of Venezuela will have the following authority, submitted to the authorizing control of the National Assembly, under the principles of transparency and rendering of accounts:

  1. a. Appoint ad hoc Boards of Directors to assume the direction and administration of public institutes, autonomous institutes, state-run foundations, associations or civil societies of the State, state-owned companies, including those founded abroad, and any other decentralized entities, in order to appoint their administrators and in general, to adopt the measures necessary to control and protect its assets. The decisions made by the acting President of the Republic will be carried out immediately and will have full legal effects.

  2. b. Until an Attorney General of the Republic is validly appointed, in accordance with Article 249 of the Constitution, and within the framework of Articles 15 and 50 of the Organic Law of the Office of the Attorney General of the Republic, the acting President of the Republic may appoint someone to act as a special prosecutor for the defense and representation of the rights and interests of the Republic, of the State-owned companies and the other decentralized entities of Public Administration abroad. That special prosecutor will have the authority to appoint judicial representatives, including in proceedings of international arbitration, and will perform the attributions mentioned in numbers 7, 8, 9, and 13 of Article 48 [of] the Organic Law of the Office of the Attorney General of the Republic, with the limitations established in Article 84 of that Law and these Statutes. Such representation will be especially focused on ensuring the protection, control and recover of State assets abroad, as well as carrying out any action that may be necessary to safeguard the rights and interests of the State. The prosecutor so designated will have the power to perform any action and use all the rights that the Attorney General would have, in regards to the assets mentioned herein. For this purpose, he or she shall meet the same conditions as the Law requires to occupy the position of Attorney General of the Republic.

Actions by the National Assembly

Article 16. Based on what is established in the preceding article, the National Assembly will be responsible for:

  1. 1. Authorizing the appointments of heads of permanent diplomatic missions by the Acting President, in accordance with Article 236, Number 15, of the Constitution.

  2. 2. Defending, within the framework of the distribution of control established in the national constitution, the assets of the Bolivarian Republic of Venezuela and its entities abroad.

  3. 3. Participating in the investigation of serious human rights violations, the investigation of illicit corruption-related activities and money laundering, in order to ensure the recovery of capital resulting from these illicit activities.

  4. 4. Promoting the implementation of international cooperation mechanisms to deal with the humanitarian emergency and the refugee and migrant crisis, in accordance with International Humanitarian Law and Article 23 of the Constitution of the Bolivarian Republic of Venezuela.

  5. 5. Adopting measures to enable the recovery of state sovereignty throughout the Bolivarian Republic of Venezuela.

  6. 6. Defining actions with civil society to promote mechanisms of citizen participation that legitimize the process of democratic transition and favor the end of usurpation of presidential powers by Nicolás Maduro Moros.

  7. 7. The other attributions that the National Assembly will assume, in accordance with Article 333 of the Constitution, the laws of the Republic and this Statute, with the limits resulting from international treaties and other human rights instruments in effect.

Re-insertion of the Venezuelan State within the fold of free nations

Article 17. In the exercise of the attributions established in this Chapter, the activities of the National Assembly will be guided towards placing Venezuela back among the free nations as soon as possible, in accordance with the Charter of the Organization of American States, the Inter-American Democratic Charter, the United Nations Charter and other international instruments, especially those relative to human rights in the Inter-American and global systems.

Guidelines for the political transition

Article 18. The National Assembly will enact laws that promote the political transition in accordance with Article 333 of the Constitution. These laws will comply with the following objectives:

  1. 1. Create the legal incentives and guarantees for civil and military servants to act in accordance with the Constitution and to refuse the orders of those who have usurped the Presidency of the Republic since January 10, 2019, as well as the other unconstitutionally integrated entities, such as the Supreme Court of Justice, the National Electoral Council, the Prosecutor's Office, the Public Defender's Office and the General Comptroller's Office of the Republic, so that they collaborate with and participate in the process of transition and of re-establishing the constitutional order.

    Develop the transnational justice system, guided towards restoring human dignity, justice, full protection and redress for victims of human rights violations, including measures to establish the truth and promote national reconciliation, in accordance with the human rights treaties in effect and Article 30 of the Constitution.

  2. 2. Once the usurpation has ended, the National Assembly will create an independent Truth Commission, in charge of investigating human rights violations, proposing political and legislative guidelines for redress for victims and for promoting democratic education, a culture of peace and national reconciliation.

  3. 3. Decree amnesty for those citizens, both civilian and military, who have been deprived of liberty for political reasons, and grant democratic reinsertion guarantees for all those who assist with the reestablishment of the constitutional order, all in accordance with Articles 23, 29 and 187, Number 5, of the Constitution, and the standards of International Human Rights Law.

  4. 4. Define the policies focused on the effective compliance with Article 328 of the Constitution and the constitutional integration of the National Armed Forces in the democratic transition process.

Guidelines for the economic transition

Article 19. The National Assembly will enact laws to deal with the humanitarian emergency and promote the recovery of the Venezuelan economy, in accordance with Article 299 of the Constitution.

CHAPTER IV

Re-Institutionalization of the Agencies of Citizen Power, of the Supreme Court of Justice and of the National Electoral Council

Attributions of the National Assembly to renew the Government Entities

Article 20. Within the framework of Article 333 of the Constitution a, the National Assembly will determine the proper time to fully or partially carry out the measures that are necessary to modify time periods and legal requirements in order to recover the legitimacy of the Government Entities. All citizens and civil servants have the duty to collaborate with these measures.

The National Assembly will appoint the heads of the Citizen Power Public entities, Chancellors of the National Electoral Council and Justices of the Supreme Court of Justice.

Legitimacy of the Citizen Power Entities

Article 21. The National Assembly will establish the time to begin the appointment or ratification procedure for the heads of the Citizen Power entities.

In light of the impossibility of constitutional and democratic operation of the Republican Moral Council, and in light of the factual impossibility of convoking the Citizen Power Candidacy Evaluation Committee while the usurpation by Nicolás Maduro Moros continues, the National Assembly, applying Article 333 of the Constitution, will establish the mechanisms for organized citizenship through schools, universities and non-governmental agencies to publicly postulate on the slate of candidates to be appointed as heads of the Citizen Power entities, in order to comply with the purposes set forth in Article 279 of the Constitution.

Legitimacy of the Supreme Court of Justice

Article 22. For the purposes of this Statute, the legitimate Justices are those designated by this National Assembly in accordance with the Constitution and the Organic Law of the Supreme Court of Justice, in a session dated July 21, 2017.

The National Assembly will process the appointment or ratification of the remaining Justices of the Supreme Court of Justice that have been appointed by the legislatures prior to the 2016-2021 Legislature.

Once all the Justices have been designated and all the vacant positions have been filled, they will be incorporated into the highest jurisdictional body of the Bolivarian Republic of Venezuela pursuant to what is set forth in the Organic Law of the Supreme Court of Justice.

Legitimacy of the Chancellors of the National Electoral Council

Article 23. The National Assembly will exercise its powers as set forth in Article 295 of the Constitution and in the Organic Law of the Electoral Branch to appoint and ratify the Chancellors of the National Electoral Council.

The appointment of the Chancellors of the National Electoral Council will be a priority issue for the National Assembly. The Committee on Electoral Candidacies will use its authority as swiftly as possible, so that the renewal of the National Electoral Council favor the holding of free and competitive elections without unnecessary delay, so that once the usurpation has ended and the provisional national unity government has been formed, democracy can be consolidated.

Transitory period of the renewed legitimate Government Entities

Article 24. The Government Entities given legitimacy by the National Assembly in accordance with this Statute will exercise their functions until the first semester of 2021. The National Assembly elected during the last quarter of 2020, pursuant to the terms of Article 13 of this Statute, will appoint and ratify the heads of the entities of Citizen Power, the Justices of the Supreme Court of Justice and Chancellors of the National Electoral Council, who will fulfill complete constitutional periods under the terms set forth in the Constitution of the Bolivarian Republic of Venezuela.

Chapter V

Formation of a Provisional Government of National Unity

Continuation of application of Attributions of Article 233 of the Constitution

Article 25. Once the usurpation of the Presidency of the Bolivarian Republic of Venezuela by Nicolás Maduro Moros and other persons in the de facto regime has come to an end, the National Assembly will ensure the continued application of Article 233 of the Constitution. During a period of thirty (30) calendar days, the President of the National Assembly will be the Acting President of the Republic for purposes of leading the process of forming a provisional government of national unity, and of adopting the measures that are necessary to hold free and competitive presidential elections.

Appointment of a temporary president to form a provisional government

Article 26. Having confirmed the requirements in the preceding article, and in the event it is technically impossible to convoke and hold free and competitive elections within the thirty (30) calendar days established in Article 233 of the Constitution, the National Assembly may ratify the acting President as the provisional President of the Bolivarian Republic of Venezuelan in order to form a government of national unity, which will begin the second stage of the democratic transition, in accordance with what is established in Article 2 of this Statute, within the framework of Article 333 of the Constitution.

Pursuant to Article 333 of the Constitution, the term of that provisional government will end with the swearing-in before the National Assembly of the new president elected in free and competitive elections called and organized for that purpose by the Electoral Power under all the guarantees established by the national and international standards of electoral transparency, culminating in the presidential term of 2019-2025, as set forth in Article 233 of the Constitution. In any event, the presidential elections should be held as soon as possible, as soon as technical conditions make it feasible, within a maximum period of twelve (12) months.

Rules of governability and minimum government program

Article 27. The National Assembly, after consulting with civil society and with political organizations, will approve, through a parliamentary agreement, the rules on governability and the guidelines for the minimum program that will carry out the provisional government within the principles of the social market economy. For this purpose, the guidelines for political transition and for economic transition resulting from Articles 17 and 18 of this Statute will be followed. The minimum program will comply with the principles of the socio-economic regime and the function of the State in the economy that are set forth in Article 299 of the Constitution.

International Cooperation

Article 28. The provisional national unity government will seek international financial cooperation with multilateral entities and countries in the free world in order to begin the process of economic transition and to deal with the humanitarian emergency. It will also request the ongoing presence by international organisms specialized in the guarantee and defense of human rights, in order to accompany the democratic transition process and to inform the international community on the situation of these rights in Venezuela.

Recovery of national sovereignty in the Republic

Article 29. The provisional Government may request the help of the international community to restore national sovereignty in the Republic of Venezuela, with authorization of the National Assembly, in accordance with the authority established in Article 187 of the Constitution.

CHAPTER VI

Elections

Holding of free elections

Article 30. Within the framework of the application of Articles 233 and 333 of the Constitution, the National Assembly will adopt measures to restore conditions of full electoral integrity and will enable a presidential election to be held corresponding to the end of the presidential period of 2019-2025.

Re-establishment of political rights

Article 31. Once the other Government Entities have been renewed, the National Assembly will adopt measures to ensure the effective exercise of the rights to freely run for positions elected by popular vote, and to vote, in accordance with the Constitution and international standards of electoral integrity.

Holding of free elections

Article 32. The National Assembly and the other authorized government entities will adopt measures to strengthen organizations with political purposes, in accordance with the terms set forth in Article 67 of the Constitution.

VII

Final and Transitory Provisions

Parliamentary acts to enforce this Statute

Article 33. The National Assembly will adopt all decisions, agreements and laws necessary to implement this Statute, in order to allow the effective re-establishment of the Constitution and to put an end to the usurpation of the Presidency of the Republic. Until these objectives have been attained, the provisions in this Statute and the other decisions adopted within the framework of Articles 233 and 333 of the Constitution will be preferably applied.

Transitory regime governing PDVSAand its affiliates

Article 34. Due to the risks faced by PDVSA and its affiliates as the result of the usurpation referred to in Chapter II of this Statute, and while that situations continues, the acting President of the Republic, under the authorizing control of the National Assembly and within the framework of the application of Article 333 of the Constitution, will designate the ad hoc Board of Directors of Petróleos de Venezuela S.A. (PDVSA) in accordance with Article 15, letter a, of this Statute, to exercise the rights that correspond to PDVSA as shareholder of PDV Holding, Inc. This attribution will be carried out in accordance with the following principles:

  1. 1. The ad hoc Board of Directors may be composed of persons domiciled abroad and will have the attributions corresponding to the shareholder meeting and the board of directors of PDVSA, in order to take all the actions necessary to appoint the board of directors of PDV Holding, Inc., in representation of PDVSA as shareholder of that company. The new directors of PDV Holding, Inc., will take all actions necessary to appoint the new boards of directors of the affiliates of that company, including Citgo Petroleum Corporation.

  2. 2. This transitory provision will prevail over any other applicable norms and will guide the interpretation of any other required formalities in the Venezuelan legal system and in corporate documents, for the purpose of exercising the representation of PDVSA as the shareholder of PDV Holding, Inc.

  3. 3. The new directors of PDV Holding, Inc. and its affiliates will guarantee the functional autonomy of those companies, especially of PDVSA. As the result of this:

    1. (a) The autonomous management of the commercial transactions of PDV Holding, Inc. and its affiliates will comply with the criteria of commercial efficiency, protecting the mechanisms of control and rendering of accounts that the National Assembly exercises within the framework of its attributions, attributions, and other applicable control mechanisms.

    2. (b) PDV Holding, Inc. and its affiliates will have no relationship whatsoever with those who today usurp the Presidency of the Republic. While the situation of usurpation remains, PDV Holding, Inc. and its affiliates will not make any payment or pecuniary contribution to PDVSA.

Publicizing this Statute

Article 35. The National Assembly will notify the Venezuelan nation of the content of this Statute as soon as possible. Notice will also be given to the international community, including foreign governments, the Secretary-General of the United Nations (UN), the Secretary-General of the OAS, the High Commission for Human Rights of the U.N., the Inter-American Commission on Human Rights, the European Union, the African Union, the Organization of Petroleum Exporting Countries, the World Bank, the International Monetary Fund, the Inter-American Development Bank and the Corporación Andina de Fomento – Development Bank of Latin America, among others.

Disposal and administration of the State's assets

Article 36. The State's assets that have been recovered through the mechanisms established in this Statute may not be disposed of or executed until the usurpation has ended and a new provisional national unity Government has been formed. For this purpose, and as the result of the situation of continual budgetary renewal that has been affecting the Republic since 2016, the National Assembly may enact a special law for financial and budgetary matters, in accordance with Article 187, numbers 6, 7 and 8 of the Constitution.

Effective date

Article 37. This Statute will go into effect as soon as it is approved by the members of the National Assembly, in accordance with the constitutional rules for legislative procedure and in accordance with the National Assembly Internal and Debate Regulation.

Extraordinary means of promulgation of this Statute

Article 38. As the result of the impossibility of access to the Official Gazette due to the de facto regime and the usurpation in effect in Venezuela, this Statute and the decisions that are implemented will be published in the media chosen for this purpose by the National Assembly.

For these purposes, and while the situation indicated in this Article remains in effect, the Laws and Agreements issued by the National Assembly, as well as the decisions made by the acting President of the Republic will be published in the Legislative Gazette, in accordance with the Internal and Debate Regulation Debates. The Laws, Agreements and other decisions will go into effect upon publication in the Legislative Gazette, including in digital format. The Law of Official Publications will apply in a supplementary manner.

Residual article

Article 39. In order to ensure the democratic transition, everything that has not been set forth in this Statute will be decided by the National Assembly in application of Article 333 of the Constitution.

Issued, signed and sealed at the Federal Legislative Palace, headquarters of the National Assembly of the Bolivarian Republic of Venezuela, in Caracas, on the fifth day of the month of February in the year two thousand, nineteen. 209th year of Independence and 159th year of the Federation.

JUAN GERARDO GUAIDÓ MÁRQUEZ

President

ÉDGAR JOSÉZAMBRANO RAMÍREZ         IVÁN STALIN GONZÁLEZ MONTAÑO

First Vice-president                                                                   Second Vice-president

EDINSON DANIEL FERRER ARTEAGA         JOSÉ LUIS CARTAYA PIÑANGO

Secretary                                                                             Assistant secretary

TRANSLATION CERTIFICATION

I, Gabriela Vasallo, president and owner of Lexico LLC., certify that my company has translated from Spanish to English the document named “NEW Estatuto de Transición” to the best of our professional translators’ ability and knowledge, and we have determined it is a correct and true translation of the original.

June 26, 2019

Date

LexicoLLC.|6770RoyalPalmDr|PalmettoBay,FL|33157|lexicollc.com

References

ENDNOTES

1 Originally published in the Legislative Gazette No. 1 extraordinary, Feb. 6, 2019. Modified in 2020 to extend the status of the interim president until 2021 (Gazette No. 38, Dec. 28, 2020), and again in 2022, to extend that status until 2023 (Gazette No. 56, Jan. 5, 2022). No significant modifications have been introduced regarding the 2019 Statute [hereinafter Transition Statute].

2 Allan Brewer-Carías, The Constitutional Foundation of the Transition Regime towards Democracy in Venezuela 2019–2020, in The defense of the rights and interests of the Venezuelan State by the Interim Government before foreign courts, and their international recognition 2019–2020, 113 (José Ignacio Hernández G. & Allan Brewer-Carías eds., 2021).

3 See L. Oppenheim et al., Oppenheim's International Law 148 (1992).

4 In strict terms, the state—not the government—is the subject of recognition in international law. However, for practical reasons it could be necessary to determine what polity can be deemed as government to represent the state abroad. The critical condition is that the polity with effective territorial control should be considered the government, regardless of its legitimacy. Generally, see James R. Crawford, Brownlie's Principles of Public International Law 134 (2019). Recently, see Gëzim Visoka et al., Introduction, in Routledge Handbook of State Recognition 1–23 (Visoka, Gëzim et al. eds., 2019).

5 Transition Statute, art. 14.

6 José Ignacio Hernández G., The Venezuelan Interim Government Before the Foreign Courts, in Hernández G & Brewer-Carías, supra note 2, p. 19.

7 Transition Statute, art. 15(b).

8 Id. art. 15(a).

9 Hernández G., supra note 6, p. 53.

10 Brewer-Carías, supra note 2, p. 150.

11 In the United States and the United Kingdom, only the 2019 Statute has been interpreted. As was explained, there are no significant differences in comparisons to the 2020 and 2022 reforms.

12 See “Maduro Board” of the Central Bank of Venez. v. “Guaidó Board” of the Central Bank of Venez. [2021] UKSC 57, ¶ 79.

13 For instance, see Rodolfo Enrique Jimenez v. Luisa Palacios, C.A. No. 2019-0490-KSJM (Del. Ch. Aug. 2, 2019) 23–24.

14 Id. p. 40.

15 See UKSC ruling, supra note 12, in which the Supreme Court analyzed the consequences of the Venezuela Supreme Tribunal of Justice's decisions (STJ). According to the Court, “Mr. Guaidó, recognized by HMG as the President of Venezuela, has made appointments to the board of the BCV which the STJ, as a part of the judicial branch of government, has declared to be unlawful and of no effect. As a result, this Court is confronted with conflicting positions adopted by the executive and the Judiciary of Venezuela” (¶ 156). Although the analysis of the STJ decisions was deferred to the Commercial Court, the Supreme Court clarified that the STJ decisions could be considered only if they do not prevent the “effective application of the one voice principle. As a result, no recognition or effect could be given to a judgment of the STJ if and to the extent that to do so would conflict with the recognition by HMG of Mr. Guaidó as the interim President of Venezuela” (¶ 177).

16 Impact Fluid Sols. LP v. Bariven SA, 2020 U.S. Dist. LEXIS 261530, C.A. No. 4:19-CV-00652 (S.D. Tex. 2020), p. 5.

17 For instance, the United States has renewed the interim president recognition over time, despite the continuance of Maduro's usurpation. See, U.S. Recognition of Venezuela's 2015 National Assembly and Interim President Guaidó, State Department (Jan. 5, 2022), https://www.state.gov/u-s-recognition-of-venezuelas-2015-national-assembly-and-interim-president-guaido.