In the recent Inter-American Court of Human Rights judgment on Preliminary Objections of August 21, 2025, in the Case of Chirinos Salamanca et al. Vs. Venezuela, the Court dismissed the preliminary objection regarding the Court’s lack of jurisdiction ratione voluntatis and ratione temporis raised by the State of Venezuela. With significant implications for the Court’s jurisdiction in this case and in other cases related to Venezuela, the IACtHR concluded that the American Convention on Human Rights (ACHR) remains in force for the State since its initial act of ratification on August 9, 1977.
The designation of Juan Guaidó as “Interim President of the Bolivarian Republic of Venezuela” in early 2019 by the Venezuelan National Assembly, in opposition to the government of Nicolás Maduro, created a conflictual scenario of international representational duality for Venezuela across various jurisdictional spheres (for background on the conflict and the regional response, see on this blog here and here). The OAS, from the outset, did not recognize the legitimacy of Nicolás Maduro’s mandate following the electoral process of May 20, 2018; it had highlighted the constitutional authority of the Venezuelan National Assembly and had accepted the appointment of the Permanent Representative designated by the Venezuelan National Assembly.
The position of the IACtHR prior to this judgment was profoundly uncertain and included no few elements of confusion that would merit separate consideration. A pertinent question is whether the Court’s recognition in various prior cases of the validity of the 2012 denunciation, executed at the time under the presidency of Hugo Chávez, could have any implication as res judicata. The validity of this denunciation was also acknowledged on the Court’s website and in its annual reports since 2019. In a 2023 interview, IACtHR Judge Patricia Pérez Goldberg stated that the States Parties to the Convention numbered 24 and, of these, 21 recognized the contentious jurisdiction of the IACtHR. This number was only possible if Venezuela was considered a State Party.
When it had the opportunity, the IACtHR’s attitude was evasive regarding pronouncing on its temporal competence in the case of Venezuela for facts occurring subsequent to the 2012 denunciation (Case of Revilla Soto Vs. Venezuela, para. 27). At the virtual public hearing of April 2021 on the Request for an Advisory Opinion on Differentiated Approaches, the IACtHR accepted the appearance of representatives designated by Juan Guaidó as part of the Permanent Diplomatic Mission to the OAS of the Bolivarian Republic of Venezuela. Following a remark by Judge Patricio Pazmiño, then Vice-President of the IACtHR, on the impropriety of this acceptance, the President of the Court, Elizabeth Odio Benito, clarified that “the Representation of the Permanent Mission to the OAS is recognized as such by the OAS and they appeared in that capacity.”
In any event, this judgment closes an important and deeply concerning chapter in the Inter-American system. This post will highlight some avenues the IACtHR could have considered to resolve this dispute and the limitations of some of them. The Court’s attempt at a systemic approach to resolve the question of the ACHR’s validity for Venezuela in the face of the challenge posed by two authorities disputing international representation is, nevertheless, weighed positively. However, it is also appropriate to note the limitations in the IACtHR’s reasoning in completing this approach, which would have further consolidated its position.
The possible approaches available to the IACtHR
The main problem for the IACtHR in this Chirinos case, which involves facts subsequent to September 10, 2013, was to qualify the validity of the act of ratification performed by the “Interim” President of Venezuela on July 31, 2019. This would determine whether Venezuela continued to be a State Party to the ACHR by determining the validity or invalidity of the acts before the treaty depositary.
Several interpretative approaches and solutions existed, supported by precedents from other jurisdictions and analogous disputes concerning Venezuela (see here, and on this blog here and here). Resorting to criteria such as “effective control” or “democratic legitimacy” (with the former generally taking precedence) invariably raised concerns regarding the potential inadmissibility of an international tribunal overstepping its jurisdiction—that is, assuming political powers extraneous to the judicial function, such as determining the “legitimate government” of a State. It is evident that the IACtHR, like any other international tribunal without expressly recognized competence for this, cannot decide based exclusively on these criteria which state authority has the capacity for the international representation of a State.
Nor is it advisable in these cases to resort to a quantitative criterion of the recognitions granted to each disputing authority. Francisco J. Quintana and Justina Uriburu have recently rightly highlighted that “the Court understates the degree of contestation surrounding the OAS Permanent Council and General Assembly resolutions on which it grounds its decision.” And it is true that in no case were the resolutions adopted unanimously in both organs. In fact, in the vote on resolution CP/RES. 1124 (2217/19) of the Permanent Council, several States (the Bolivarian Republic of Venezuela, El Salvador, Mexico, Bolivia, Uruguay, Antigua and Barbuda, Saint Vincent and the Grenadines, Guyana, Dominica, Suriname, Barbados) noted the peculiarity of this fact, which some interpreted as the “recognition” of a government, exceeding the competences of this organ.
In any case, resorting to a count of recognitions of each disputing authority, whether at the regional level or by the international community, has significant probative value, but does not seem to be the most suitable criterion, in itself, to be determinative in the resolution of these cases before international tribunals (a discussion of this in Talmon, 134, and in my own book, p.196). In these types of situations, the most useful approach is to assume an institutional perspective, which is also highlighted by Francisco J. Quintana and Justina Uriburu: whether indeed the recognition of the legitimacy of an authority or its representation has been accepted by the relevant political organ of the international organization.
One of the least problematic avenues—as if applying a sort of one voice doctrine—consisted of following the model used by the International Criminal Court (ICC) when it considered the deposit of the instrument of accession accepted by the United Nations Secretary-General to determine whether Palestine could be considered a State under Article 12(3) of the Rome Statute (para. 99). The ICC declined to examine “the outcome of the accession procedure,” that is, the validity of Palestine’s accession to the Rome Statute. In attributing decisive weight to the deposit, the ICC took into account, inter alia, a practice whereby the depositary, in the exercise of its functions, follows the determination of the United Nations General Assembly on whether a particular entity is a State (para. 96). This method of resolving the issue was attractive and inspired former Attorney General to Juan Guaidó, José Ignacio Hernández, to argue that the decisions to accept the deposit of the 2019 instruments of ratification, following the determinations of the OAS’s political organs, “bind the Court” regarding Venezuela’s status vis-à-vis the ACHR (p. 344).
Taking into account initially that a possible parallel with the solution found by the ICC in that case clashed with the absence of a similar practice within the OAS framework to give similar weight to the deposit made by the OAS Secretary General, in the amicus curiae brief I submitted to the IACHR in this very case, which was subsequently published (see here), I proposed a broader approach to the issue. A perspective that would take into account all elements or situations with potential probative value in determining the “legitimate” authority in an integrated manner.
For this, it was necessary to clarify an important point. When the IACtHR decides on its own jurisdiction, the political decisions of the OAS and the subsequent deposit of a treaty ratification could not constitute binding or mandatory acts for the IACtHR. The ACHR was born within the OAS, and the functioning of the IACtHR takes place within the sphere of this same organization (election of judges, approval of its Statute, accountability through annual reports, etc.). But the Court is an “autonomous judicial institution” and “like any organ with jurisdictional competences, has the inherent power to determine the scope of its own competence (compétence de la compétence/Kompetenz-Kompetenz)” (Constitutional Court v. Peru. Competence. Judgment of September 24, 1999, para. 31).
The absence of provisions regarding the scope or legal effects of the deposit in the ACHR itself invited an analysis of the depositary’s functions in light of the Vienna Convention on the Law of Treaties (VCLT). The prevailing doctrinal position, when analyzing Articles 76 and 77 of the VCLT, is that the functions of the depositary are administrative in nature, devoid of “adjudicative powers” and without their acts having binding force for States (Mark E. Villiger, 2009, p. 940-943). If any difficulties arise in examining these acts, it is not the depositary’s role to determine their validity but rather that of the States Parties. The ICC notably observed in Decision on the ‘Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine’, that the depositary has “responsibility over administrative matters linked to the concerned treaty” and that “the transmittal of a depositary notification by the United Nations Secretary-General does not, as such, render an entity a State Party to the Statute” (para. 96).
In my consideration, the solution to this controversy had to be found within the frameworks of the singularities of a regional human rights protection system. A somewhat similar precedent, mutatis mutandis, which sought a solution fundamentally within the frameworks of its own human rights system, can be found in the matter of Loizidou v. Turkey, 1995 from the European Court of Human Rights (ECtHR) (para. 40), which analyzed the standing of the Government of Cyprus in its case against Turkey: a solution that appeals to the consistent practice of states and other organs within the frameworks of the system in which the human rights court is embedded.
In this context, and adapted to the case in question concerning Venezuela, a strongly defensible position for the Court consisted of taking into account a set of factors: the decisions of the political organs on the determination of the State’s legitimate representative in the OAS at the time the deposit occurs (Permanent Council and General Assembly); the actions of other organs of the Inter-American system (including the Secretary General as depositary of other treaties); and the practice followed within the same system by other States towards the same authorities, among other factors. In synthesis, it required analyzing the deposit act and its own process within the frameworks of the practices and principles governing the Inter-American system.
The limitations of the systemic approach employed by the Court
The Court’s judgment, without contesting any of these issues, assumes a systemic logic, at least to the extent that it excludes an extremely formalistic examination—in the style of the ICC—and incorporates important elements of the Inter-American system beyond the deposit act. The reasoning is conditioned by an institutional approach—i.e., by the position adopted by the OAS political organs on the legitimacy of the state authorities in Venezuela—but it at least expressly recognizes the need to analyze the validity of the deposit of the instrument of ratification also with the practices and principles of the Inter-American system, and based on also ascertaining the legitimacy of some internal procedures in Venezuela. It is in this sense that one can read the Court’s recognition that “the action of the Depositary, the institutional conduct of the OAS organs, and the applicable norms must be analyzed and interpreted in light of the principles governing the Inter-American System of Human Rights, in particular, the effectiveness of the protection mechanism, the nature of human rights treaties, their collective implementation, and the pro persona principle” (para. 50).
On this point, the IACtHR notes that the deposit made by Juan Guaidó falls within a “line of coherence” with the decisions adopted by the OAS organs—within the frameworks of the obligation of collective guarantee—and performed by an authority previously enabled to celebrate treaties with other States of the system, including multilateral treaties, and also to perform various acts related to Inter-American treaties, whose depositary was the OAS General Secretariat, as well as credentials for its representatives (paras. 48-49). Similarly, it undertakes to analyze the internal Venezuelan legislative process regarding the legal effect of the act of ratification. Although it was not taken into account to conclude on the validity of the deposit act performed by the “Interim” President of Venezuela on July 31, 2019, in compliance with the mandate of the National Assembly (para. 68), the Court also contrasted the standards relating to acts of denunciation of the American Convention, pursuant to Advisory Opinion OC-26/20, with the institutional context in which the decision to denounce was adopted by the Venezuelan State in 2012.
It is true that the judgment’s argumentation falls short of providing a coherent explanation of a truly systemic approach incorporating the practice of the entire Inter-American system. For example, it would have been desirable for it to highlight the practice of other organs of the Inter-American system, such as the Inter-American Commission, in various matters regarding facts subsequent to the 2019 ratification, as well as examples from the OAS General Secretariat itself regarding treaties such as the Inter-American Treaty of Reciprocal Assistance (TIAR), where the Ministry of Foreign Affairs of Brazil is the depositary of the original instrument, and the OAS General Secretariat is the depositary of ratifications, which records the validity of the deposit of instruments by the government of Juan Guaidó on August 6, 2019.
Conclusions
Even though the IACtHR does not devote even a few lines to clarifying this, this is a solution where the competence of the IACtHR must be understood as having a functional character and limited to guaranteeing the exercise of its own jurisdiction. It should not be read as assuming political powers of “recognizing authorities as governments of a State.” It was obvious that, to qualify the validity of the act of ratification performed by one authority disputing international representation with another, it had to conduct a global examination within the entire regional system, which fundamentally included taking into account the position of the OAS political organs on the legitimacy or lack thereof of a state authority. In a human rights protection system where the jurisprudence of the IACtHR increasingly blurs the boundary between state sovereignty and obligations regarding the protection of democracy and respect for human rights, this new approach to disputes over the legitimacy of a State’s international representation is coherent.
