Disqualified (Soon to be Demoralized) in Venezuela: The Case of Leopoldo Lopez

By Tom Hatfield, 2L

On March 2nd 2011, Leopoldo Lopez sat in front of the Inter-American Court for Human Rights (IACRH). He pled that the Venezuelan government denied his political rights enshrined in the American Convention on Human Rights by disqualifying him from run- ning for election as mayor of the capital city of Caracas. The mayor of Caracas holds a powerful political position in Venezuela.

Mr. Lopez is a bright star in Venezuelan politics. He was mayor of Chacao, one of five municipal districts of greater Caracas, from 2000 to 2008. He had extremely high approval ratings and was planning his candidacy for mayor of greater Caracas. His reputation for progress and transparency lead to his award for third-best mayor in the world by World Mayor, and the Transparency International award for transparent government. Mr. Lopez is also a strong voice of opposition to the current government of Hugo Chavez and the leader of Voluntad Popular (“The People’s Will”), a grassroots social and political movement. At the end of his last term in 2008, Mr. Lopez went to register himself for reelection and was denied. The comptroller general disqualified him from running, along with 277 other politically significant people in Venezuela.

The IACHR is a supranational judicial body created by the Organization of American States (OAS) to enforce the human rights standards of the American Convention on Human Rights. Article 23 of the Convention gives every person the right to participate in public affairs, to be elected and to have access to the public service. These rights can be limited only by enumerated grounds, including sentencing by a competent court in criminal proceedings.

Although the government has circulated suspicions of corruption involving Mr. Lopez in the past, no charge was ever laid, no trial commenced, and no sentencing occurred. Mr. Lopez claims that his rights under Article 23 (1) of the Convention are being denied.

If we assume for the moment that Mr. Lopez is successful in his application , he still faces serious obstacles to quashing the disqualification order in Venezuela. To have real impact, any order from the IACHR would have to be enforceable in a Venezuelan court.

There are two ways in which Venezuela can argue that its government is not bound by some provisions of the Convention. The first is by saying that the provisions of the Convention are not self-implementing. That means that the ratification of the Convention through the legislature of Venezuela does not pass its provisions into domestic law. The government of Venezuela can contend that the provisions of the Convention need to be passed into domestic law independently in order for any enforcement of the provisions to occur.

Whether the terms of the Convention are self -implementing is debatable. In “Some Problems Presented by the Application and Interpretation of the American Convention on Human Rights”, Edmondo Vargez Carinno, former legal advisor to Chile, wrote that some provisions of the Convention are self-implementing and some are not. He says that we must look at the language of the specific provision. Provisions that are programmatic are not self-implementing. For example, a provision that says “the laws of a party state shall give equal rights to women and men,” is programmatic because it lays out a general program to which the laws of a country should adhere. 

On the other hand, provisions that grant spe- cific rights to citizens, ie. “Woman and men shall have equal rights”, are self-implementing. Article 23(1) – the provision on which Mr. Lopez is relying – states the following: “Every citizen shall enjoy the following rights and opportunities:... (b) to vote and to be elected in genuine periodic elections...” Therefore, according to Mr. Carinno’s interpretation, Article 23(1) is self-implementing and forms part of Venezuelan domestic law. If this is the case, then Mr. Lopez should be able to take the IACHR judgment to the domestic courts of Venezuela and have it enforced as a breach of domestic law. 

However, assuming for the moment that the Article 23(1) is not self-implementing, Mr. Lopez can argue that Venezuela has a monist view of international legal obligations where by all such obligations, regardless of specific wording, are implemented into domestic law automatically upon ratification by the legislature. This approach contrasts with a dualist approach to international law whereby international and domestic legal orders are exclusive of each other. A dualist view would conclude that obligations under the Convention are part of the international legal sphere and cannot be adjudicated by a domestic court. 

Unfortunately, Venezuela’s constitution is silent regarding whether the state is dualist or monist. Mr. Carinno believes that most Latin American states in this position would follow the European tradition of monism and that “we can conclude by saying that in the majority of Latin American countries, once the American Convention on Human Rights has been ratified, it will become an integral part of domestic law and it will be possible to invoke its provisions before domestic courts and administrative organs, as any internal law can be invoked.”

Sadly, even if Mr. Lopez receives an IACHR order and that order is automatically enforceable in Venezuelan court, Mr. Lopez’s most demoralizing challenge will be against the Venezuelan judiciary itself. According to the Inter-American Commission on Human Rights, the Venezuelan judiciary seriously falls short of standard benchmarks of independence. The government of Hugo Chavez has removed the tenure guarantees that ensure proper separation of powers between the executive and the judiciary. Currently, all but a few judges on the Supreme Court can be removed at will by the government. Even if Mr. Lopez is successful, there is little hope that a Supreme Court that so heavily influenced by the executive branch will enforce an IACHR order that is contrary to Chavez’s interests.

In his address to the IACHR, Mr. Lopez said that not only his rights and those of the 277 other disqualified citizens were at stake. He declared that this decision will set a precedent for the region and establish the IACHR’s willingness to hold accountable those who breach the American Convention on Human Rights. However, even if the IACHR protects these rights to the fullest extent possible, the Court’s power and effectiveness could be undermined because of the lack of independence of domestic judiciaries.