Justifying External Support for Regime Change in Venezuela

Justia Verdict Podcast | Legal Analysis and Commentary from Justia

Venezuela has suffered through two decades of incompetent, corrupt, and authoritarian socialist rule, first under Hugo Chávez and, since 2013, under Nicolás Maduro. Seeking to restore democracy and prosperity, two weeks ago Juan Guaidó, the president of the Venezuelan National Assembly, declared himself the country’s acting president pending new elections. Guaidó argues that Maduro’s victory in a rigged and illegitimate election left the presidency vacant and that under such circumstances the constitution vests power in the National Assembly’s leader.

The US and some of the world’s other constitutional democracies now recognize Guaidó’s authority, even as countries such as China and Russia are standing by Maduro. Given the risk of domestic unrest, civil war, and even great-power conflict reminiscent of the Cuban missile crisis, the stakes in Venezuela are enormous. One can only hope that the Trump administration coordinates any further words and deeds regarding Venezuela with the sober leaders of allied nations.

Meanwhile, the global response to Guaidó’s declaration raises a question of justification. Many countries suffer under incompetent, corrupt, and authoritarian rulers. Given that the international community does not generally seek their ouster, what makes Maduro different?

Pragmatic Limits

In asking that question, I do not mean to engage in “whataboutism,” a practice by which one deflects even extremely serious charges by making similar charges about others. The adage two (or more) wrongs don’t make a right often suffices to rebut whataboutism.

That said, one can ask in good faith why the US and other constitutional democracies should support displacing Maduro but not, say, the Saudi royal family or Kim Jong-un.

Part of the answer is practical. Admittedly, the Trump administration’s eagerness to ignore the apparent role played by Saudi crown prince Mohammad Bin Salman in the murder of US permanent resident Jamal Khashoggi is shameful. But even a tougher line—pressing the Saudis for a change in the line of royal succession, for example—would leave in place an autocratic and unelected regime. Why not withdraw recognition of the legitimacy of the whole Saudi monarchy?

Realpolitik provides the best explanation. In light of the Syrian civil war, the counter-revolution in Egypt, and the destabilization of Libya, foreign policy makers will be understandably cautious before repeating the enthusiasm for democratic reform that greeted the Arab Spring in 2011.

Likewise, it would be folly to seek Kim’s overthrow, given that his regime possesses nuclear weapons and that millions of South Koreans live within the North’s conventional artillery range. We can say, on the one hand, that ideally all people should live under liberal democratic regimes, while recognizing, on the other hand, that the sorts of measures any outside forces might take to try to transform authoritarian regimes into liberal democratic ones would likely fail and end up doing more harm than good.

Truth in Advertising and Sham Constitutions

Might there be further reasons to distinguish Maduro from other authoritarians? Perhaps one might argue that neither Saudi Arabia nor North Korea holds itself out as democratic, whereas Venezuela does. In this view, when the US and other outside actors recognize Guaidó rather than Maduro, they are not imposing external values on Venezuelans; rather, they are saying that under Venezuela’s own constitutional principles, Maduro lacks legitimacy. By denying Maduro’s legitimacy, the democratic world would be applying a principle of truth in advertising.

Yet to draw that line we need to take account of the fact that even some obviously dictatorial regimes also claim to be democracies. Consider North Korea, which styles itself the Democratic People’s Republic of Korea. Article 6 of its constitution proclaims: “The organs of State power at all levels . . . are elected on the principle of universal, equal and direct suffrage by secret ballot.” Article 67 says: “Citizens are guaranteed freedom of speech, the press, assembly, demonstration and association.”

Putting aside pragmatic grounds for non-intervention, why don’t democratic countries have at least as strong a case for displacing Kim Jong-un as their case for displacing Maduro?

There may be no good answer to that question, but if there is one, it begins by recognizing a difference between real liberal democratic constitutions that are being violated—as in Venezuela—and what legal scholars David Law and Mila Versteeg call “sham constitutions.” North Korea—in which the gap between what “the country promises in its constitution and what it delivers in practice” is enormous—obviously has a sham constitution.

Indeed, the sham nature of North Korea’s constitution is apparent even on the face of the document. Although it purports to enshrine various liberal rights, the constitution’s overall tone is one of over-the-top communist propaganda. Consider this description of the state’s founder in the Preamble: “Comrade Kim Il Sung was a genius in ideology and theory, a master of leadership art, an ever-victorious iron-willed brilliant commander, a great revolutionary and statesman and a great man.”

In addition, the North Korean constitution contains further clues that the liberal rights it purports to recognize are not intended to be taken seriously. No truly liberal democratic constitution contains anything like the North Korean constitution’s Article 12: “The State adheres to the class line and strengthens the dictatorship of the people’s democracy so as to firmly defend the people’s power and socialist system against all subversive acts of hostile elements at home and abroad.”

Accordingly, we can conclude that the liberal democratic provisions of the North Korean constitution were never meant to be taken seriously. Denying recognition to Kim on the ground that he is an authoritarian would hold him to a commitment neither he nor his regime ever really made. By contrast, Maduro maintains the pretense of democratic legitimacy and thus, it can be argued, can and should be held accountable to that standard.

Democracy’s “Uncanny Valley”

We might regard the distinction between betrayals of democracy—as in Venezuela—and sham constitutionalism—as in North Korea—as akin to the so-called uncanny valley in human reactions to humanoid robots. Most people feel uneasy when seeing or interacting with robots that are quite close in appearance and manner to actual humans but still not perfect simulations. In contrast, we do not generally have the uneasy feeling in response to other humans. Meanwhile, non-humanoid robots that do not come close to approximating real humans do not evoke this response either. We may even find them cute. Think of Wall-E or R2D2. The uncanny valley refers to revulsion towards close-but-no-cigar imitation humans. In drawing this analogy, I am suggesting that there may be something similarly creepy about the space between real democracy and non-democracy.

To be clear, democracy’s uncanny valley matters, but it is hardly the only thing that matters. A dictatorial regime that violates basic human rights openly thereby avoids the sin of betraying democracy; yet we would hardly deem it praiseworthy on that basis; depending on the severity of the rights violations and the sorts of pragmatic considerations discussed above, we might well conclude that external actors would be justified in seeking regime change.

Nonetheless, Maduro can and should be criticized for his betrayal of Venezuela’s constitutional democracy. Seeing that betrayal as a separate additional harm—beyond his ruination of the country’s economy—helps explain why countries (including the US) that do not seek to delegitimize even worse tyrants have a special reason to condemn him for plunging Venezuela into democracy’s uncanny valley.

Follow @dorfonlaw

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University and co-author, most recently, of Beating Hearts: Abortion and Animal Rights. He blogs at dorfonlaw.org.