The Obama Decree

It has effect solely within the territory of the United States and therefore does not amount to any sort of interference in the affairs of Venezuela, nor does it violate the human rights of the people, experts say

The more than 10 million signatures collected in Venezuela against the Executive Order have no legal effect within or outside the borders of Venezuela, so there is no way to force US President Barack Obama to revoke his decree (AVN)
The more than 10 million signatures collected in Venezuela against the Executive Order have no legal effect within or outside the borders of Venezuela, so there is no way to force US President Barack Obama to revoke his decree (AVN)

TODAY VENEZUELA- Ever since last March 9, when US President Barack Obama issued an Executive Order declaring Venezuela an “unusual and extraordinary threat” to the United States, the Venezuelan government has screamed denunciations of supposed plans of invasion or military incursion by the United States.

“We cannot allow this decree to be a sword of Damocles suspending over our children’s necks (…)until the day the United States come and say ‘Ok now,[let’s enforce]a blockade against Venezuela, [let’s launch] an invasion against Venezuela.’ An invasion has been launched in all the countries against which such decree has been issued,” President Nicolas Maduro has declared on several occasions. However, the invasion theory has been ruled out by various experts in Public International Law, for several reasons.

According to Professor Manuel Gómez, an Associate Dean for International and Graduates Studies at Florida International University College of Law, not in all cases have Executive Orders declaring a threat been followed by a military intervention. An example of this is the Colombian case, when in the mid-90s, the then US President Bill Clinton declared Colombia an “unusual and extraordinary threat” for reasons of drug trafficking.

Another reason is that the situation in Venezuelan does not pose a severe threat to international peace and security, which for Simón Gómez-Guaimara, an expert in Public International Law, would be the only valid reason for allowing the use of force in a specific case under International Law. “There is no reason for the US government even to consider such an action, less still in view of what is happening in Venezuela.”

Human rights violation

The Executive Order clearly states that the situation in Venezuela, including the erosion of human rights guarantees, persecution of political opponents, curtailment of press freedoms as well as the significant public corruption by senior government officials, poses an unusual and extraordinary threat to the national security and foreign policy of the United States, which is why a “national emergency” was declared.

Manuel Gómez, who is also a Research Fellow at Stanford University, explains that one of the goals of US foreign policy is the international protection of human rights.
In his opinion, “That’s enough justification for President Obama to issue a decree of this nature, believing that, although the violation of human rights occurred outside the United States, he must not sit on his hands because his foreign policy includes this type of protection. “In fact, before traveling to the 7th Summit of the Americas, held on 11 and 12 April in Panama, President Obama, said that “Neither the United States nor any other member of the Inter-American community should remain silent about the situation in Venezuela.”

A major international law firm (name withheld) based in Venezuela and several countries in Latin America and the United States, explained to El Universal newspaper that although the political, social and economic situation of Venezuela has no direct relationship with the United States, for the United States the issue of human rights is very important and therefore Venezuela is to be seen as an unsafe country for American citizens, businesses and interests as long as human rights violations continue. At present, the United States is Venezuela’s largest trading partner, with an annual bilateral trade exceeding USD 40 billion.

Chain reaction

The decree prompted a rejection from Maduro, who called it “infamous,” and also from the rest of the public authorities, who have said it interferes into the internal affairs of the country and infringes on the people’s human rights. Some senior government officials, like Venezuela’s ambassador to the United Nations, Rafael Ramirez, have said that the decree is “an assault on the sovereignty of Venezuela.”

Pursuant to Resolution 3,314 of the UN General Assembly, aggression means “Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State.” From the standpoint of Public International Law, Obama’s decree cannot be considered as an “aggression,” Gómez-Guaimara explains, since the Executive Order is not in itself an act or imminent threat of incitement to an international armed conflict to affect the independence and territorial integrity of Venezuela.

Imperial interference

Gómez-Guaimara, who is also Professor of Public International Law at Universidad Central de Venezuela (UCV), Catholic University Andrés Bello (UCAB), and Metropolitan University (UNIMET), explains that for the Executive Order to be considered as a form of US interference in Venezuela it must have an “extraterritorial effect;” that is, an effect on the Venezuelan territory, which would effectively violate the sovereignty of the country. But the Executive Order has effect solely within the territory of the United States and only affects the individuals targeted, not the Venezuelan population.

The seven senior officials targeted for sanctions under the Executive Order had their property and interests in property in the United States blocked or frozen, and visa restrictions imposed. The former measure, which is the most controversial because it is property-related, only affects the identified accounts and assets located within the territory of the United States and not in any other part of the world; while the second is related to immigration, over which each country has the sovereign power to decide within its jurisdiction, and in this case they only have an effect on the seven targeted officials and do not extend to the rest of Venezuelans. In other words, the Venezuelan State will not bear the burden of sanctions; therefore, only those affected can exercise legal action to defend their rights and interests.

For its part, the international law firm mentioned above said that the Public International Law allows the United States or any other nation to lay down internal measures against foreigners when determining that, in accordance with its national legislation, the actions of those individuals elsewhere affect internal interests of the United States, in which case the principle of non-interference cannot be invoked.

The origin of sanctions

Obama’s Executive Order did not come out of the blue. The decree is based on the Venezuela Defense of Human Rights and Civil Society Act of 2014. The bill, which passed the House on December 10, 2014 and was signed into law by President Barack Obama on December 18, 2014, will remain in place for two years. Through this Act, also known as the Venezuela Sanctions Act, the United States Congress authorizes the Executive to apply sanctions at its entire discretion in specific cases. It is for President Obama to decide whether or not to impose targeted sanctions on certain individuals, as well as to determine timely and appropriate enforcement.

The decree is based as well on three other US laws; namely, the International Emergency Economic Powers Act; the National Emergencies Act; and the Immigration and Nationality Act of 1952.

The Research Fellow at Stanford University explains that, under US law, when the president issues an executive order, as in the case involving Venezuela, he exercises a legislative function; that is, he issues a decree based on a law. Gómez adds that the International Emergency Economic Powers Act regulates not only economic aspects, but also national security and foreign policy aspects, and that is why Obama invokes this rule to declare a national emergency in the presence of a threat that would be considered unusual and extraordinary. In the Venezuelan case the measure is intended to prevent the continued violation of human rights.

A threat that is no threat

Although in the Obama decree Venezuela is declared an “unusual and extraordinary threat to the national security and foreign policy of the United States,” in the run up to the Summit of the Americas Obama said during an interview with the EFE news agency: “We do not believe that Venezuela poses a threat to the United States, nor does the United States threaten the Venezuelan government.” Assistant to the President and Deputy National Security Advisor for Strategic Communications Ben Rhodes had made the same clarification before, and explained that the language of the Executive Order was “completely pro forma.”

The international law firm explains that the United States uses a pro forma text for its sanctions based on old laws whereby the term “threat” is related to military matters. “Those laws were drafted thinking in conventional military threats like those posed at the time by North Korea or Cuba, or countries identified as states sponsors of terrorism,” they say.

However, they rule out the raison d’être of the decree to be Venezuela’s warm relations with Iran, or Venezuela’s alleged ties to terrorist organizations, which explains why sanctions are not economic or military in nature, like for example, an arms embargo. “Neither the Venezuela Sanctions Act nor the Executive Order are associated with national security elements linked to terrorism or war situations. They are associated with human rights violations.”

They explain that with the evolution of Public International Law, the definition of “threat” extends today beyond the military realm to encompass human rights violations.

Ineffectual signatures

As a counter-offensive action, the Venezuelan Executive launched a media campaign called “Obama repeal the decree now.” The government was very active, both externally and domestically, and set into motion all its machinery to gain the support of friendly countries, including regional blocs like ALBA (the Bolivarian Alliance for the Americas) and UNASUR (the Union of South American Nations), and collect 10 million signatures against the Executive Order.

The laws of the United States give President Obama the power to amend or revoke his Executive Orders, but the decision is his entirely. Hence, the Venezuelan government actions were no more than a symbolic way to express discontent over the decree, but quite utterly ineffective since there is no legal mechanism to oblige the US president to reverse his decision, on which all the experts interviewed agreed. And they add that requiring such reversion is tantamount to interfering in the internal affairs of the United States.