An English judge – Nigel Tare – has ruled that the gold deposited by the Venezuelan state belongs to Juan Guaidó. In order to correctly analyze this ruling, it is essential to take into account the peculiar situation of the United Kingdom in terms of international sanctions. Until 31 December 2020, when the transitional period of Brexit will end, it must continue to apply European Union law and therefore its regime of sanctioning restrictions. However, the decision of the European authorities to recognise Mr Guaidó as “President of the National Assembly of Venezuela” is not imperative for the Member States and two of them (Italy and Cyprus) do not grant him such recognition. Great Britain attributes to Mr Guaidó the status of “Interim Constitutional President of Venezuela”, but as we will see later this position is inconsistent with other diplomatic practices that he is developing simultaneously.
We have to realise a very important parallel condition, which is that the United Kingdom, in view of the imminence of the Brexit, is already building its own, autonomous system of international sanctions. On 2 July it issued “The Global Human Rights Sanctions Regulations 2020”, freezing the assets of, and prohibiting the entry into, its territory of 47 natural and 2 legal persons; specifically 25 senior Russian officials linked to the death of S. Magnitsky, 20 senior Saudi officials linked to the murder of A. Khashoggi, 2 military personnel from Myanar/Burma and 2 North Korean entities that manage the concentration camps in that country. In addition, the British have made public a “Consideration of designations“, with the criteria that will guide their imposition of international sanctions.
What is striking about the new British sanctioning regime is that it is radically aligned with that of the United States of America. The American Secretary of State, M. Pompeo, has said so himself and has stated that a new era of cooperation is opening between the two countries in this field from which he hopes to obtain great results.
What has been said so far highlights a reality that must be taken into account by the countries, including Venezuela, which are subject to international sanctions. The sentence that we are now dealing with cannot be separated from this new and worrying situation.
Secondly, the judgement raises serious technical objections. For example, we doubt that the Venezuelan public documents presented by the legal team representing Mr. Guaidó were duly legalized. And in fact, experience in Spain with alleged representatives of Mr. Guaidó’s Government proves this, as these persons sent alleged official documents without apostilles. In this regard, we should recall that both the United Kingdom and Venezuela are parties to the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents and Establishing the System of the Apostille. In the case of the Bolivarian Republic of Venezuela, only the competent official authorities of the Government of President Maduro can issue apostilles. On the contrary, Mr. Guaidó’s representatives lacked that capacity, which showed once again that they were not genuine authorities, since they lacked real power in Venezuela and were nothing more than a political and legal fiction. In that connection, it was incomprehensible and inadmissible that the British courts had admitted foreign public documents without the necessary apostille.
Finally, the High Court’s ruling is inconsistent and contradictory with the British Government’s diplomatic behaviour. Although this inconsistency exists in many other executives of European states. We have already said that the authorities of the European Union recognise Mr Guaidó as President of the National Assembly of Venezuela’; for its part, the European Parliament understands that Mr Guaidó is a Legitimate Interim President’ and the States, those which give him some kind of recognition which are not all of them, give him curious names, for example Spain attributes to him the confused status of President in charge of Venezuela’.
Well, in the United Kingdom there is a situation in which its government considers Guaido “Interim Constitutional President of Venezuela” and the High Court ruling says so, but at the same time this government recognizes the ambassador appointed by President Maduro and the embassy attached to him as the official representative of Venezuela. If the United Kingdom really took a clear position in favour of Mr. Guaidó, it would be very easy for it to withdraw the placet from the Ambassador and all her diplomatic staff, but it does not do so, since it is aware of the reality of things and incurs a serious inconsistency that contributes to the confusion of all those involved.
On the other hand, while the lawsuit is going on, and there are two more instances left, the gold remains in the United Kingdom with the economic advantages for that country that result from that permanence.
This litigation should put the Bolivarian Republic of Venezuela on notice. Similar lawsuits may occur around the world, and the Venezuelan Government must therefore prepare a solid strategy at the global level to protect its assets abroad from possible legal action by Mr. Guaidó’s supporters.
Lupicinio Rodríguez, Lawyer. Specialist in international sanctions.
Jose Luis Iriarte. Professor of Private International Law.
Jesús Salmerón Unturbe, Lawyer. Specialist in international sanctions.
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