Democracy Clauses in the Americas: The Challenge of Venezuela's Withdrawal from the OAS

87 Pages Posted: 17 Jan 2018

See all articles by Antonio Perez

Antonio Perez

Catholic University of America (CUA) - Columbus School of Law

Date Written: 2017

Abstract

In light of Venezuela’s unprecedented notice of its intention to withdraw from the Organization of American States, this essay by a former member of the Juridical Committee of the OAS explores the range of discretion available to the OAS and its Member States in interpreting and applying the OAS’s unique provision for withdrawal. Presenting the first extensive analysis of this provision of the OAS Charter, the essay argues that the withdrawal clause can plausibly be interpreted to require Venezuela to fulfill all its obligations under the OAS Charter, including its obligations to respect democracy, before its unprecedented withdrawal can take effect. It then examines the potential discretion available in interpreting and applying the series of commitments under the OAS Charter, as amended and authoritatively interpreted, that constitute what could be deemed collectively an “OAS Democracy Clause.” It locates the OAS Democracy Clause’s development over time along a continuum of possibilities – a weak international and strong constitutional commitment to democracy – that is also reflected in the changing terms of U.S. adherence to the original OAS Charter of 1948 and under its 1992 amendments under the Protocol of Washington. Nevertheless, drawing on rational choice theory and recent evidence of the adverse effects from interpretation of withdrawal clauses to impose excessive burdens on withdrawing states, this essay argues that an interpretation of the OAS withdrawal clause to require continued Venezuelan compliance with the OAS Democracy Clause, or to maintain OAS competence to monitor Venezuelan compliance after its purported withdrawal takes effect, could be counterproductive. Even if marginally beneficial in promoting democracy in Venezuela in the short run, it could in the long run undermine the OAS project of maintaining and extending democracy in all OAS Member States by, among other things, initiating a bargaining process with Venezuela in which the OAS would seek to persuade Venezuela to change course, a negotiation that could tend to concessions that would dilute the OAS commitment to democracy. The article thus provides a paradigm for restrained interpretation of withdrawal clauses in an era of increased exit from international organizations.

Suggested Citation

Perez, Antonio, Democracy Clauses in the Americas: The Challenge of Venezuela's Withdrawal from the OAS (2017). American University International Law Review, Vol. 33, No. 391-476, 2017; CUA Columbus School of Law Legal Studies Research Paper No. 2018-3. Available at SSRN: https://ssrn.com/abstract=3103026

Antonio Perez (Contact Author)

Catholic University of America (CUA) - Columbus School of Law ( email )

3600 John McCormack Rd., NE
Washington, DC 20064
United States
202-319-5820 (Phone)

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