[Ricardo Arredondo is Professor of Public International Law at the University of Buenos Aires.]
In recent months, Latin-American countries have been actors and witnesses of a heated debate, as tend to be those in which Venezuela participates or is the subject of the discussion. This time the issue revolves around the eventual participation of this country in the next VIII Summit of the Americas, to be held in Lima, Peru on April 13 and 14, 2018. The central question is whether Peru has the right not to allow the participation of Venezuela in the Summit or if Venezuela has the right to participate, beyond the opinion of Peru and other countries in the region. To answer this question, it is necessary to analyze first what the legal nature of the Summit of the Americas process is and then to determine whether the summit is an ordinary or extraordinary meeting of the Organization of American States (OAS) or a multilateral meeting of States, in the type of conference diplomacy, where the consent of the receiving State is required.
The Summits of the Americas are institutionalized gatherings of the 35 Heads of State and Government of the members of the Organization of American States (OAS) where leaders discuss common policy issues, affirm shared values and commit to concerted actions at the national and regional level to address continuing and new challenges faced in the Americas.
The decision to meet periodically and define the fundamental orientations of an Agenda for the Americas gave way to the institutionalization of the Summits, since it is a mechanism that allows accumulating experiences, building a common language and designing collective, national and multilateral mandates and actions. To strengthen this new inter-American “institutionality” and, particularly, its main political forum, the Organization of American States, the parties resolved to officially designate the OAS as the “Secretariat” of the Summits of the Americas process. This brought with it an expansion of the issues and actors of this process.
In the case of the Summits of the Americas, despite the similarity between the OAS Member States and the participants in the Summit process, the OAS merely acts as a support agency to the summit system. The OAS has the responsibility to operate as a record-keeping mechanism, “the institutional memory of the Summit Process”, and to provide technical support to the Summit Implementation Review Group (SIRG).
Therefore, it is possible to conclude that the legal nature of the Summit of the Americas process responds to the traditional model of diplomacy called special missions and it is not an ordinary or extraordinary meeting of the OAS. This distinction is fundamental because it allows us to move towards the discussion of the second question.
3. Does Venezuela have the right to participate in the VIII Summit of the Americas?
When Venezuela knew that the Government of Peru withdrew the invitation to Nicolas Maduro to participate in the VIII Summit, Venezuela replied with a note confirming that its president will attend the Summit of the Americas, affirming, inter alia, that Peru, in its capacity as the host State of the Summit, is only entitled to extend the courtesy of invitation to the dignitaries, organize the meeting and provide, in its capacity as host country, the logistical, security and safeguarding facilities for the participants, as well as guarantee the respective immunities and privileges and lead the negotiations, in its capacity as Chairman of the Review Group of the Implementation of Summits (SIRG). As a basis for its position, it cited the headquarters agreement between Peru and OAS of July 20, 2017. Venezuela also sustains that “the power to decide on the participation of a member state and founder in the meetings of the Summit of the Americas … is not attributed in any way to the Republic of Peru, or to any other State”. However, as we will see below, this is not the case.
Summit diplomacy is governed, in a supplementary manner, by the special missions rules, established in the Convention on Special Missions (CSM) (signed on 12/8/1969, entry into force on 6/21/1985). In effect, the CSM norms have a dispositive character, i.e, they will be applied to the extent that the States have not agreed to the contrary through customary law or through an agreement. A “special mission” is s a temporary mission, representing the State, which is sent by one State to another one with the consent of the latter for the purpose of dealing with it on specific questions or of performing in relation to it a specific task (Article 1, a]).
In accordance with the traditional principles governing diplomatic relations, the sending of a mission requires the consent of the receiving State (in this case, Peru), which can be obtained through diplomatic channels or by “another agreed or mutually acceptable channel” (Article 2). This sending does not necessarily include bilateralism. The mission can be sent to two or more States, two or more States can send a common mission or missions to a third State (arts. 4 to 6).
The receiving State retains certain capacities that are reminiscent of those conferred on the diplomatic mission. Thus, it can refuse to accept a special mission “of a size that is not considered by it to be reasonable, having regard to circumstances and conditions in the receiving State and to the needs of the particular mission; likewise, it may refuse to accept any person as a member without expressing the reasons for its decision (art. 8). Similarly, and at any time, it may inform the sending State that any representative of the State or member of the diplomatic staff is persona non grata or that any other member of the staff of the mission is not acceptable, with the consequent obligation of the sending State to proceed to its withdrawal and termination of its functions. Otherwise, the receiving State may refuse to continue recognizing it as a member of the mission in question (art. 12, sections 1 and 2).
In the case sub examine, neither the headquarters agreement between Peru and the OAS, nor any other norm of the hemispheric system contain specific provisions referring to this type of situation. However, Peru has indicated that the Declaration of Quebec contains a clause that provides that:
“We acknowledge that the values and practices of democracy are fundamental to the advancement of all our objectives. The maintenance and strengthening of the rule of law and strict respect for the democratic system are, at the same time, a goal and a shared commitment and are an essential condition of our presence at this and future Summits. Consequently, 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 Summit of the Americas process. Having due regard for existing hemispheric, regional and sub-regional mechanisms, we agree to conduct consultations in the event of a disruption of the democratic system of a country that participates in the Summit process”.
Declarations adopted in the Summit of the Americas process do not have the nature of norms of international law in the strict sense, although, according to Sanahuja, they would fall within the scope of the so-called soft law, without direct legal effects but with visible influence on policies and domestic legislation. By reflecting aspirational goals, more than legal obligations, they have less effectiveness, but in return it is possible their acceptance by the States. The non-binding nature of these norms, however, does not make them irrelevant and in fact they have discernible and significant effects both at institutional and material levels. Furthermore, Mangas Martín recalls that if respect for democracy and human rights were a “democratic basis for cooperation”, a further step could be taken to transform it into a provision essential to the accomplishment of the object or purpose of the treaty that could open a way to invoke art. 60 of the Vienna Convention on the Law of Treaties, that is, to invoke the violation of human rights and democracy as a cause of termination or suspension of the treaty.
Venezuela further argues that, under Article VII of the Headquarters Agreement between Peru and the OAS of July 20, 2017, the Government of Peru has agreed to grant and recognize the OAS and its organs, the delegations of the OAS member states … the privileges and immunities necessary for the independent performance of their functions during the SIRG and Eighth Summit meetings, therefore, Peru could not oppose to the participation of a delegation from Venezuela. However, this is not the case, from a simple logical sequence it can be inferred that privileges and immunities can only be recognized to those participants who have obtained the consent of the receiving State to attend the summit. Consequently, if a State is not granted that consent, it cannot enjoy any privileges and immunities.
In summary, Peru, as receiving State, is fully entitled not to invite or consent to the presence of a delegation from Venezuela to the Summit of the Americas, either by the traditional rules that regulate this type of missions or through the mechanism envisaged in the Quebec Declaration mentioned above. Article VII of the Headquarters Agreement between Peru and the OAS of July 20, 2017, does not contradict these general principles.
Hence, the Minister of Foreign Affairs of Peru, Cayetana Aljovín, said that her country, as the host State of the continental meeting, has the faculty, under international law, to invite and cancel the invitation extended to a Head of State or Government; and, if this official is responsible of an alteration or interruption of the democratic order in a state of the Hemisphere, Peru can do it under the Declaration of Quebec. This last position was also expressly supported by the so-called Lima Group in point 6 of its Declaration of January 23, 2018.
For reasons above mentioned, the note from the Government of Venezuela confirming that its president Nicolás Maduro will attend the Summit of the Americas, even though the invitation was withdrawn, is without foundation. Under the present circumstances in this country, there is no place for Venezuela at this Summit of the Americas.