Amid one of the worst humanitarian crises today, tensions among the world’s greatest military powers are rising. It has become clear that the current U.S. administration is much more committed to the situation in Venezuela than previous administrations. However, so are Russia’s and China’s.

The national health system in Venezuela has collapsed, fostering the outbreak of previously eradicated diseases. People are resorting to sewage drains for water supplies. Indigenous nations are abandoning their lands to seek refuge in Brazil and Colombia. According to the office of the United Nations High Commissioner for Refugees (UNHCR), there are currently over 4.5 million Venezuelan refugees and migrants fleeing violence, widespread hunger, and impoverishment, all of which are worsened by a lack of medicine and other essential services. In response, and following a request by the UN Secretary-General, a Regional Inter-Agency Coordination Platform has been established with more than 170 actors collaborating in response to the refugee exodus. 

The Human Rights Watch has declared the violation of Venezuela’s obligations to respect, protect, and fulfil the right to health guaranteed under both the Venezuelan Constitution and the International Covenant on Economic, Social and Cultural Rights (ICESCR) which Venezuela has ratified. Together with the International Covenant on Civil and Political Rights and the Universal Declaration, they constitute what is today known as the ‘International Bill of Human Rights.’

The Watch reports:

“While Venezuelan authorities are within their rights to reject particular offers of assistance, doing so only heightens their responsibility to work towards alternatives that can fully address the urgency of the country’s needs. Efforts undertaken by Venezuelan authorities during the presidency of Nicolás Maduro have failed to do so.”

However, diplomatic means and measures short of force have so far failed to address Maduro’s neglect of the crisis.

Increasingly isolated by growing sanctions from the U.S. and the European Union, Maduro’s government has adopted Russia as its main political ally. Russia has a history of deploying Tu-160 bombers and missile cruisers to the country. In March 2019, Russian uniformed military personnel arrived in Venezuela to help refurbish and maintain various critical weapon systems, including Russian-made S-125 medium-range surface-to-air missile systems and other anti-aircraft artillery. Venezuelan forces have been seen conducting exercises with long-range S-300VM systems, also acquired from Russia. The U.S. alleges the troops were also sent to convince Maduro to stay in power despite questions regarding his legitimacy and Juan Guaidó’s claim to the presidency.

On January 26, 2019, U.S. Secretary of State Mike Pompeo addressed the United Nations Security Council urging support for “Venezuela’s democratic transition and interim President Guaidó’s role in it,” calling on countries to “pick a side”:

“Either you stand with the forces of freedom, or you’re in league with Maduro and his mayhem.”

In February, the U.S. proposed a draft resolution calling for the recognition of Guaidó as interim president, new elections in Venezuela, and the entry of humanitarian aid. The draft received majority support but was vetoed by Russia and China, the latter of which has an oil-for-loans agreement with the Maduro government. In an interview in May, when asked for a response to Russia’s military involvement as well as how far the U.S. would go to support Guaidó, Pompeo responded:

“The president has been crystal clear and incredibly consistent. Military action is possible. If that’s what’s required, that’s what the United States will do.”

The Chairman of the Joint Chiefs of Staff, General Joseph Dunford, also confirmed in a press conference that the U.S. is focusing on the collection of intelligence “to make sure [the U.S. has] good visibility on what’s happening down in Venezuela” and to prepare “to support [Guaidó] should he require more from the U.S. military.”

The escalation of military developments thus raises the likelihood of a U.S.-led campaign in Venezuela, which raises the question of whether such intervention is justified. Article 2.4 of the United Nations Charter of the United Nations expressly prohibits Member States from using or threatening force against each other, allowing only two exceptions: self-defence under Article 51, and military measures authorised by the Security Council under Chapter VII. Initially, this suggests an impediment to intervention in Venezuela, considering the likelihood of Russia and China to veto any proposition for action.

However, when presented with a Security Council impasse, a viable route for action could be the United Nations’ “Uniting for Peace” [GA Res.377 A (V)] procedure. The procedure can be pursued when a peace-and-security issue is on the Security Council agenda, and the Council is prevented from exercising its ‘primary responsibility’ by the veto of one of its permanent members – in this case, the protection of human rights. The General Assembly could be called into special session and, with a two-thirds majority, support military action. A resolution of the General Assembly would be particularly persuasive; however, it may be insisted that the UN Charter still specifies that military action requires Security Council endorsement. Moreover, the likelihood of Russian military support for Maduro’s government despite a potential resolution could be problematic—even if equipped with the formation of a humanitarian intervention force, the United Nations is not structured to conduct a fighting mission with one of its members.

In 1998, Kofi Annan declared:

“The Charter protects the sovereignty of peoples. It was never meant as a license for governments to trample on human rights and human dignity. Sovereignty means responsibility, not power.”

With this view, a case could be constructed on the basis of ‘humanitarian necessity’: where the systematic violation of human rights, as witnessed in Venezuela, can degrade a state’s sovereignty and diminish the force of legal protections against intervention. Following NATO’s intervention in Kosovo, Russia submitted a resolution condemning the action. It was resoundingly defeated in council. Several members of the Council maintained that even if an action contravened the Charter, it was legal because it conformed to general international law – overwhelming humanitarian necessity.

Alternatively, neighbouring states could claim that Venezuela’s humanitarian crisis is creating externalities that affect not only their national security but also the security of the entire region. The need to safeguard the stability of an entire region could constitute a state of necessity. A state of necessity is the cause which justifies the violation of a binding rule to safeguard, in the face of grave and immediate peril, values which are higher than those protected by the rule which has been breached. The case could refer not only to the refugee crisis, but also to the issue of neighbouring armed insurgencies and drug-running crime syndicates accused of mass human rights violations finding refuge in Maduro’s regime. As was pleaded in the ICJ Legality of Use of Force (Yugoslavia v. Belgium) case, it could be argued that the higher values the intervention will safeguard are the jus cogens rights of collective security of an entire region.

“Intervention,” however, has so far implied the violation of sovereignty. The recognition of states and governments is often more grounded in politics than in international law. States have frequently used recognition as an instrument of policy, and there exists substantial agreement among states on the existence of a right of states to invite foreign troops into their territory. Considering the array of nations and organisations that have officially declared their recognition of Guaidó as interim president, the U.S could argue, and for the moment seems to be making the case, that humanitarian intervention at the request of, or with the consent of, Guaidó’s internationally recognised government does not conflict with any interpretation of the principle of state sovereignty.