Published: 19 November 2020 Author: Stefan Talmon
On 10 January 2019, Nicolás Maduro was sworn in for a second term as President of Venezuela after elections that were boycotted by the opposition and accompanied by claims of vote-rigging. Several countries declared that they would not recognize Mr. Maduro’s presidency as they considered the electoral process as lacking democratic legitimacy. On 15 January 2019, the Venezuelan National Assembly declared that Nicolás Maduro had taken the presidency illegally and therefore left the office vacant. Amongst widespread opposition protests, on 23 January 2019 Juan Guaidó, the President of the National Assembly, declared himself Interim President of Venezuela, invoking Article 233 of the Venezuelan Constitution of 1999. The opposition-led National Assembly had been elected on 6 December 2015, and remained the only democratically elected constitutional institution in Venezuela. It had elected Mr. Guaidó as its president on 5 January 2019.
However, the constitutional law situation in Venezuela was complicated by the fact that a Constituent Assembly had been elected in July 2017 to draft a new constitution. The elections were boycotted by the opposition and seen as an attempt by Mr. Maduro to consolidate power. On 31 July 2017, a spokesperson for the German Federal Foreign office issued the following statement on the situation in Venezuela:
“The German Government regrets that President Maduro’s Government has not halted the process to establish a constituent assembly despite great resistance by Venezuelan society and against the explicit advice of the international community.
This step has furthered divisions in the country, weakened the democratic order and aggravated the profound crisis that has shaken Venezuela for many months. The foreseeable escalation of violence claimed more than 15 lives this weekend. Our thoughts are with the victims and their families. We condemn the disproportionate use of violence by the security forces.
The German Government does not regard the constituent assembly as a suitable means to lead Venezuela out of its economic and social crisis. […].”
Two days later, the deputy government spokesperson stated that an “assembly that has come about under such circumstances without national consensus and by violent means cannot claim any legitimacy”. Nevertheless, in August 2017, the Constituent Assembly claimed to strip the National Assembly of its powers; a move not recognized by the latter which continued to act. Germany also considered the move invalid. On 24 January 2019, Federal Foreign Minister Heiko Maas declared, “We support the National Assembly, which is elected by the people.”
The following acts by the German Ambassador to Venezuela, Daniel Kriener, must be seen against this background. On 7 February 2019, the German Ambassador delivered a letter to Mr. Guaidó conveying “the words of recognition” of his “swearing-in as Interim President of the Government of the Bolivarian Republic of Venezuela.” The text of the letter was publicised on the Embassy’s Twitter account. A week later, Ambassador Kriener met Mr. Guaidó in his office at the National Assembly – a fact, again, made public with a photo of the two on the National Assembly’s Twitter account.
Five days later, Ambassador Kriener was back at the National Assembly, together with four other ambassadors of European countries, showing their support for Mr. Guaidó. During the event at the National Assembly, which was widely reported in the media, Ambassador Kriener stated that his country had repeatedly offered humanitarian aid to Mr. Maduro that had been rejected. Nicolás Maduro was not only lacking democratic legitimacy, but was also denying the alarming humanitarian situation that Venezuela was going through. The German ambassador also commented on Twitter that the crisis in Venezuela was not the consequence of an armed conflict or a natural disaster, but was the result of human decisions, thereby implicitly blaming Mr. Maduro for the dire humanitarian situation in the country. When Mr. Guaidó defied a travel ban in order to meet with supporters in neighbouring countries, and was widely expected to be arrested on his return to Venezuela on 4 March 2019, Ambassador Kriener was among a group of diplomats who met him at Simón Bolívar de Maiquetía International Airport and escorted him safely out of the building. In an interview with a TV channel NTN24 at the airport, Amabssador Kriener said, “We want to help and support that he returns back safely.” On the German Embassy’s Twitter account, the action was also made public, showing a photo of the ambassador at the airport and calling it “a step towards a political and peaceful process to overcome the crisis in Venezuela.” It was later revealed that Ambassador Kriener had acted on explicit instructions from the Federal Foreign Office. Federal Foreign Minister Maas told reporters:
“It was my express wish and request that Ambassador Kriener turn out with representatives of other European nations and Latin American ones to meet acting President Guaidó at the airport. We had information that he was supposed to be arrested there. I believe that the presence of various ambassadors helped prevent such an arrest.”
The action at the airport was the last straw for the Government of President Maduro. On 6 March 2019, the Venezuela’s Minister of Foreign Affairs, Jorge Arreaza, announced that the German Ambassador had been declared persona non grata because of his recurrent acts of interference in the internal affairs of the country. The Ambassador was given 48 hours to leave Venezuela. On the same day, the Ministry of Foreign Affairs published the following Communiqué in English on its website:
“Venezuela declares persona non grata to the Ambassador of Germany for recurrent acts of interference
The Bolivarian Republic of Venezuela makes public its decision to declare the Ambassador of the Federal Republic of Germany, Daniel Martin Kriener, persona non grata, due to his reiterative interference in our domestic issues in open violation of the standards ruling diplomatic relations.
Venezuela deems [it] unacceptable for a foreign diplomat to play in our territory such a public role which is rather inherent to a political leader, in clear alignment with the conspiracy agenda of Venezuelan extreme opposition sectors.
Mr. Kriener’s actions not only defy the essential standards ruling diplomatic relations, but also are even contrary to the clear criteria expressed by the German Federal Parliament’s legal service, which has stated by public report that the German government’s position represents an ‘illegal interference’ in domestic issues. Such position is also considered as a hostile and unfriendly action adding on other insolent actions of interference in Venezuela’s domestic issues.
Venezuela is irrevocably free and independent; therefore, positions by foreign diplomats that imply meddling in issues of exclusive competence of the Venezuelan State authorities and people shall not be accepted. Consequently, Mr. Kriener is given forty-eight hours to leave the territory of the Bolivarian Republic of Venezuela.
The Bolivarian Republic of Venezuela reiterates its willingness to maintain a relation of respect and cooperation with every European government. However, instead of pro-coup and violent plans, a position of constructive equilibrium by all of them is needed to facilitate a negotiated and peaceful solution between the Venezuelan political actors.”
The Communiqué referred to a paper prepared by the German Federal Parliament’s Scientific Research Services (SRS) on “Legal Issues Regarding the Recognition of the Interim President in Venezuela”. In that paper, the SRS had addressed the question of the recognition of the interim president in light of Venezuelan constitutional law, stating:
“The recognition of interim president Guaidó by the Federal Republic of Germany on 4 February 2019 has been based, inter alia, on Article 233 of the Venezuelan Constitution. This means that from a German perspective President Maduro (no longer) has any constitutional legitimacy.
With the reference to Article 233 of the Venezuelan Constitution, Germany is, at the same time, positioning itself on a controversial issue of Venezuelan constitutional law. In light of the principle of ‘non-interference in the internal affairs of another State’, this appears just as questionable in international law terms as the (premature) recognition as interim president of an opposition politician who has not yet effectively asserted himself in the power structures of a State.”
Only hours after Venezuela’s Ministry of Foreign Affairs issued its Communiqué, the German Federal Foreign Minister, Heiko Maas, issued the following statement:
“We have noted the decision to declare Ambassador Kriener ‘persona non grata’. This is an incomprehensible decision, which further aggravates the situation and will not help to ease tensions. I have decided to recall our Ambassador for consultations.
Our, Europe’s support for Juan Guaidó remains firm. Ambassador Kriener has done excellent work in Caracas, especially during the last few days.”
A plea to reconsider the expulsion of the German Ambassador was rejected. On 7 March 2019, Venezuela’s Foreign Minister wrote on Twitter that Daniel Kriener “has been declared persona non grata in strict adherence [to] the Vienna Convention on Diplomatic Relations [VCDR].”
Although the German Ambassador was ordered to leave within 48 hours, he could not leave the country until 11 March 2019 due to power outages that severely affected air traffic. The delayed departure, however, had no effect on the legal status of Ambassador Kriener. It is generally accepted that members of a diplomatic mission and their families who, owing to force majeure, are unable to withdraw from the receiving State before the end of the specified term, continue to be entitled to their privileges and immunities under the VCDR. The situation of diplomats in this respect is similar to that of merchant ships at the outbreak of hostilities which are unable to leave the enemy port within the grace period due to force majeure, such as bad weather.
On 1 July 2019, in an unexpected twist of events, President Maduró revoked the expulsion of the German ambassador. In another Communiqué in English, the Venezuelan Ministry of Foreign Affairs reported “on the normalization of diplomatic relations with Germany”. The Communiqué read as follows:
“The Government of the Bolivarian Republic of Venezuela informs to the Venezuelan people and the international community that, after several contacts with the government of the Federal Republic of Germany, a normalizing process of diplomatic relations between both States has been initiated, as agreed in today’s meeting held in Berlin between the Venezuelan Vice-Minister for Europe, Yvan Gil, and the Director for Latin America and the Caribbean of the German Federal Foreign Office, Marian Schuegraf. In this light, progress is being made for the restoration of the diplomatic dialogue channels in the framework of the mutual respect and preeminence of the International Law.
As a result, the President of the Bolivarian Republic of Venezuela, Nicolas Maduro, has decided to revoke the content of the communiqué issued last March 6th, 2019, declaring the Ambassador of the Federal Republic of Germany, Daniel Martin Kriener, persona non grata and the German Government has decided to return to the country in order to prepare a common agenda according to the principles of international cooperation.”
This interpretation of events as an agreed “normalization of diplomatic relations” did not go unchallenged. Two days later, the German Embassy in Caracas wrote on Facebook and Twitter:
“The Venezuelan Foreign Ministry has revoked the expulsion of German Ambassador Daniel Kriener. This message was communicated to us in writing the day before yesterday at the Foreign Ministry in Berlin by Venezuelan Vice Minister Yvan Gil.
The Venezuelan Foreign Affairs Ministry has taken this decision without any conditions or considerations on our part.
This step opens the door to finalize the consultations of Ambassador Kriener in Berlin. It is yet to be decided when Ambassador Kriener will return to Caracas.”
At a regular government press conference, a spokesperson for the Federal Foreign Office explained the events as follows:
“The revocation [of the expulsion note of 6 March 2019] – and I would like to emphasize this once again – occurred at the sole initiative of the Venezuelan Foreign Ministry without any consultations or preconditions. We are pleased that Ambassador Kriener will be able to carry out his duties as Ambassador to Venezuela again locally.
By the way, our position regarding the recognition of Juan Guaidó as interim president of Venezuela, in accordance with the Venezuelan Constitution, has not changed.”
Asked whether the return of Ambassador Kriener as a result of a decision of the Maduro Government implied recognition of that government, the spokesperson replied:
“No. Mr Kriener has returned because his political consultations here in Berlin came to an end. I would also like to remind you once again that Mr Kriener has returned at the express request of Juan Guaidó. He underlined this in a letter to the Federal Foreign Office. Our political position in the case of Venezuela is unchanged.”
Ambassador Kriener returned to Venezuela on 20 July 2019, and six days later was received by Foreign Minister Jorge Arreaza.
The Maduro Government used the meeting for its own purposes, publishing both a news item and photos of the meeting under the heading “Venezuela and Germany evaluate recomposition of their bilateral agenda” on the Foreign Ministry’s website. The press release stated in part:
“This Friday at the Yellow House Antonio José de Sucre, the Foreign Minister of the Bolivarian Republic of Venezuela, Jorge Arreaza, again received the German ambassador, Daniel Kriener, after the recomposition of diplomatic relations with the Federal Republic of Germany.
‘We will maintain direct communication and try to rebuild a large agenda of bilateral cooperation’, wrote the People’s Power Minister for Foreign Relations through his Twitter account @jarreaza.
Last March in a statement from the Bolivarian Republic of Venezuela, the German representative was declared as a non-welcome person and subsequently expelled by the Venezuelan government after relating to the conspiracy agenda developed by the extremist sectors of the Venezuelan opposition. […].
In July, the Venezuelan government decided to invalidate this statement, after having held several contacts with the government of the European country that resulted in the beginning of a process of normalization of diplomatic relations between the two States.”
On 30 July 2019, Ambassador Kriener met Juan Guaidó at the National Assembly, which gave the latter the opportunity to publicise his version of events. In a press release the National Communications Centre of the Assembly stated under the heading “President Guaidó after meeting with Ambassador Kriener: ‘Germany recognizes us’”:
“The interim President of Venezuela, Juan Guaidó, held a meeting in the Federal Legislative Palace with the German Ambassador, Daniel Kriener after his return to Caracas at the express request of the President (E).”
The case is a good example for how one and the same set of facts can be spun differently. For Mr. Maduro, who considered himself to be the lawful president of Venezuela, the German Ambassador’s presence in Venezuela was dependent on his consent. As a consequence, declaring Ambassador Kriener persona non grata meant that he had to leave the country, and only the revocation of that decision allowed the Ambassador to return. Germany, on the other hand, could not accept that version of events. As it had publicly recognized Mr. Guaidó as interim president, it could not act as if it accepted that Mr. Maduro was entitled to continue to exercise the powers of office of the President of Venezuela. However, as Mr. Maduro continued to exercise effective control in the country, it also could not disregard the persona non grata declaration and the ambassador had to be withdrawn. The way out of this dilemma was to recall the ambassador for consultations. This meant that the Ambassador was leaving the country on instructions of his own government and not because of Mr. Maduro’s decision. The same was true for the ambassador’s return. For Germany, he was not returning because the persona non grata declaration had been revoked by Mr. Maduro, but because the political consultations in Berlin had been completed. It was, of course, no coincidence that on both occasions the German and Venezuelan decisions coincided. As the Government of Mr. Maduro continued to exercise effective control over the State’s population and territory and continued to be recognized as the Government of Venezuela by the majority of States and the United Nations, the departure of the German Ambassador must be classified in legal terms as an expulsion, rather than a recall for consultations. This is also confirmed by the fact that recalls usually last for a few weeks, but not for four and a half months.
Venezuela was entitled to declare the German Ambassador persona non grata at any time without having to explain its decision. Venezuela’s Ministry of Foreign Affairs nevertheless justified the expulsion on the ground that the German Ambassador had repeatedly interfered in the internal affairs of the country. It could well be argued that the open criticism of the country’s incumbent president, statements in support of an opposition politician geared towards the media, the public recognition of Mr. Guaidó as interim president, and shielding him against arrest were incompatible with the functions of an ambassador as set out in Article 3(1) VCDR. Whether these acts in fact amounted to an abuse of diplomatic functions can be argued long and hard. It is exactly for that reason that Article 9(1) VCDR imposed no obligation to give reasons. An ambassador may be expelled for a good reason, for a bad reason, or for no reason at all. However, the sending State need not accept a persona non grata declaration without objection if such a declaration is perceived as being totally unjustified or arbitrary. In such a case, the sending State will usually reciprocate by declaring the receiving State’s ambassador persona non grata. This option, however, was not open to Germany as, according to its reading of events, the German Ambassador had not been expelled at all but was recalled by the German Government on its own initiative.
Category: Diplomatic and consular relations
