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SPECIAL REPORT

Mercosur Crisis: Venezuela’s Temporary Presidency

Buenos Aires-Sao Paulo, September 2016

Barcelona • Bogota • Buenos Aires • Havana • Lima • Lisbon • Madrid • Mexico City • Miami • New York City • Panama City • Quito • Rio de Janeiro • Sao Paulo Santiago • Santo Domingo • Washington, DC MERCOSUR CRISIS: VENEZUELA’S TEMPORARY PRESIDENCY

1. INTRODUCTION

Mercosur is experiencing one of the most complex political crises 1. INTRODUCTION since it was founded 25 years ago. It is clear the Southern Cone 2. FORMAL ASPECTS VERSUS is changing at the political level; Following ’s POLITICAL ASPECTS victory in and Dilma Rousseff´s impeachment, which 3. HEMISPHERIC VERSUS REGIONAL RELATIONS has left Michel Temer as president of Brazil, we face a shift in 4. WHAT HAPPENS TO THE the region’s political orientation and a new consolidation in the “DEMOCRATIC CLAUSE”? power structure. Brazil, which used to be the greatest regional 5. THE FOCUS OF THE DEBATE: actor, has been affected by the impact of Rousseff’s dismissal at HUMAN RIGHTS AND THE both externally and internally. Rousseff was accused of carrying QUALITY OF DEMOCRACY out fiscal maneuvers to disguise the report of her administration’s 6. THE NEED FOR CONSENSUS public accounts in 2014 and 2015 in order to ensure her re-election. 7. THE ROLE OF MEDIATOR AUTHORS Facing this situation, Latin America was torn between supporting or rejecting the process, which led to internal divisions within Mercosur. In the first group is Argentina, which described Rousseff’s trial as a “constitutional process,” and in the latter is Venezuela, which considered the Brazilian Senate’s decision a coup. Meanwhile, Uruguay has expressed its doubts about the process without exactly calling it a “coup.”

At the international level, we must add Uruguay’s July 29 decision to abandon the bloc’s mandate at the end of its current presidential semester. At that moment, Venezuela, the country that was supposed to take over following the alphabetical order provided for the presidency’s rotation, announced it was taking command even though there was no transfer ceremony, such as the traditional presidential summit, and despite opposition from Argentina, Brazil and Paraguay, which still consider the presidency vacant.

​Argentina, Brazil and Paraguay complain that Caracas has not complied with Venezuela’s membership agreement and question the Caribbean country’s quality of democracy, which is why they consider Mercosur’s leadership currently vacant. In this context, they ignore how the actions taken by Venezuela may impact Mercosur.

Thus, the bloc is now immersed in an institutional paralysis. At the moment, there is a debate about the primacy of strict formal aspects of international law and good practices1 versus the current political context and ideological convenience of its members.

1 There was no formal transfer since there was no meeting of the Council, presiden- tial summit (which is the usual transfer procedure) or communication from the rest of the member countries. Another argument is that Venezuela has failed to comply with all the prerequisites to become a permanent member of the economic bloc.

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2. FORMAL ASPECTS Mauricio Macri (Argentina) and VERSUS POLITICAL Michel Temer (Brazil), from the ASPECTS bloc’s main countries, want to change the line of action According to Mercosur’s adopted by the economic bloc founding treaty and the over the past 12 years during Ouro Preto treaty, temporary the governments of Luiz presidency should occur on Inácio Lula da Silva and Dilma “Argentina’s, two conditions: for a time Rousseff, an action which Paraguay’s and Brazil’s span of six months and by is considered more political governments believe alphabetical order. In article than commercial. Stopping 5, the Ouro Preto’s protocol Venezuela from assuming there is a “hole” in highlights that “the presidency Mercosur’s presidency is the Mercosur’s mandate” of the Council of the common first step in this direction. market is exercised by rotation of the member states, in Moreover, the heads of state alphabetical order, for a period of what the Venezuelan leader, of six months.” Nicolas Maduro, calls the “Triple Alliance” question the Likewise, internal decisions Caribbean country’s quality are taken through consensus, of democracy. During his which means that as long electoral campaign, Argentina’s as one of the member President Mauricio Macri, disagrees, the situation will accompanied by Lilian Tintori not be resolved. Argentina’s, (wife of Venezuelan political Paraguay’s and Brazil’s prisoner Leopoldo Lopez), governments believe there is a announced that, if elected, he “hole” in Mercosur’s mandate would apply the “democratic because, according to them, clause” in the case of there was no consensus in the Venezuela. Upon taking office, election that, by right, it would the Argentinian president belong to the Bolivarian nation. reaffirmed his statement.

What is behind the debate? In economic terms, we 3. HEMISPHERIC VERSUS could infer that the three REGIONAL RELATIONS neighbors are looking for a way to grab hold of the With a focus on developing ties regional bloc at a time when with regional and international Mercosur and the European partners, Argentina appears Union are negotiating the and is perceived in Europe finishing touches for a Free to be a key player in the Trade Agreement, and this reactivation of regionalism quarter will be key in the and multilateralism. This negotiation process. is reflected in visits from

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the European Commission’s of an agreement between senior officials in months, Mercosur and the European the most recent of which Union that has been postponed took place Aug. 22, when for 20 years, while also President of the European studying alternatives to boost Parliament Martin Schulz investment and employment. met with Mauricio Macri and The main objective in the short other national leaders and term is to finalize commercial governmental officials. negotiations between both blocs. “The purpose of This visit adds to those of these meetings other officials from the EU´s In this regard, during his visit executive body, such as that Schulz highlighted Argentina’s is to streamline of Federica Mogherini, high role in reviving the decision- mechanisms representative for Foreign making process in order to to advance the Affairs and Security Policy further negotiations and and vice president of the achieve a partnership that materialization of an Commission, as well as includes free trade between agreement between members of the executive the two international Mercosur and the board of the European organizations. Nevertheless, in Parliament’s Foreign Affairs order to realize the agreement, European Union” Committee. Additionally, two conditions must be met: they attended meetings Mercosur’s member states need the Argentinian president, to align themselves and define along with Chancellor a new direction for the bloc, Susana Malcorra, held and the European bloc must with the European Union’s steer toward a new resolution, authorities July as part of moving beyond opposition their Brussels tour. from some of its member states (related to the heterogeneous The European bloc seems to position of EU countries have found a stable partner regarding the protection of in the new Mauricio Macri their markets, particularly administration, not only in in agriculture). regard to other parts of the world, but also in regard to The European Union must his regional partners, and consider either negotiating as a even more so in the uncertain bloc or reaching an agreement context caused by the with the caveats each member critical situation Mercosur is state desires in regard to going through and Temer’s each specific point. These government in Brazil, the other decisions are at the mercy of regional power. the political will at a moment when the bloc should redefine The purpose of these meetings its international relations is to streamline mechanisms following Great Britain’s to advance the materialization announcement to exit the EU.

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In achieving the distortion of data on economic aforementioned objectives, it growth and inflation will is worth noting the visits from be lifted. European Investment Bank (EIB) Vice President Roman Likewise, once Dilma Rousseff’s Escolano in September, and impeachment process has from the Internal Market, concluded, Brazil’s government Industry, Entrepreneurship and wants to begin the debate to SMEs Commissioner Elzbieta review the rule that any trade Biekowska in December. agreement concluded by the Meanwhile, Argentina is Mercosur’s countries requires waiting for the United States’ consensus among all the endorsement to become a members of the economic bloc. “The government of member of the Organization Brazil also wants to for Economic Co-operation and In Temer’s government’s change the rule that Development (OECD), a group evaluation, this mechanism of countries in which South has prevented commercial trade negotiations America is represented only by negotiations between Brazil are preferably Chile. The Ministers of Foreign and the rest of the world. done through Affairs and Finance, Susana The government of Brazil Malcorra and Alfonso Prat-Gay also wants to change the rule the World Trade respectively, requested this that trade negotiations are Organization (WTO)” incorporation in June. preferably done through the World Trade Organization However, the United States (WTO). Along with Macri, Brazil government is reluctant to hopes to count on the support accept new members. So far, from Paraguay’s President, it has been backed by the businessman Horacio Cartes, United Kingdom, France, Italy, to move forward with these Portugal, Chile and Mexico. changes inside Mercosur. Normally, the membership process takes at least three years and must be accepted by 4. WHAT HAPPENS TO THE the 35 countries that compose “DEMOCRATIC CLAUSE”? the group, as well as the European Union, so Argentina Protocol states the clause also needs the support of the can be applied “in case of a member states. breakdown in the democratic order in any” of the member The situation will be defined states of the regional bloc. in early October once the The application of the norm International Monetary Fund’s includes measures ranging (IMF) mission has gone to from the “suspension of Buenos Aires. It is predicted the right to participate in that, through the revision of Mercosur’s various bodies” to article IV, the censure that the termination of the “rights has weighed on the country and obligations arising from since early of 2013 due to the these processes.”

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The document explains that, This week, spokesperson for in case of a breakdown of the U.S. State Department democratic order, the rest of Elizabeth Trudeau urged the bloc members “will promote Nicolas Maduro’s government the relevant consultations to free the leader of Voluntad among themselves and with Popular, Leopoldo Lopez. The the affected state” and, if Organization of American these conversations fail, that States (OAS), a group of 15 the countries “will consider countries (including Uruguay), the nature and scope of the urged Venezuelan authorities measures to be applied, taking to continue the recall into account the seriousness of referendum process against the situation.” the current president “without delay.” The group of countries “The Organization of It so happens there was no expressed their expectations consensus within the bloc on that the consultation “will American States (OAS), whether to apply the clause contribute to a quick and a group of 15 countries to Venezuela. The proposal effective resolution of the (including Uruguay), was refused by Uruguay, current economic, social urged Venezuelan and given that the measure and political difficulties” can only be applied through in Venezuela. authorities to continue consensus of the states that the recall referendum” compose the bloc, it is unlikely At the same time, President to flourish. For this reason, of the National Electoral Brazil, Paraguay and Argentina Council (CNE) Tibisay Lucena are pushing to prevent Maduro announced that the collection from becoming the president of of the 4 million signatures the regional bloc until he gives needed to begin the recall way to the recall referendum will take place at the end of demanded by the opposition. October, which would prevent the recall referendum from being held in 2016 as the 5. THE FOCUS OF THE opposition demands. If the DEBATE: HUMAN RIGHTS referendum is carried out AND THE QUALITY OF before Jan. 10, 2017, and Maduro DEMOCRACY loses, there will be elections. However, if it is held after The hemispheric powerhouse, that date and the president is United States, typically removed from office, he will observes the situation in the be replaced by Vice President southern continent but only Aristóbulo Istúriz Almeida.2 gets involved with caution.

2 It must be a freely appointed public official who can be removed by the President of the Republic. He cannot be related to the president. He can also be removed by more than two thirds of the National Assembly through a vote of no-confidence. If, during the six-year presidential term, no-confidence motions against more than three vice-presidents are approved, the president will be entitled to dissolve the Parliament.

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The beginning of the Olympic 6. THE NEED FOR Games was the excuse CONSENSUS for Mercosur’s founding presidents, with the exception Facing this situation of of Uruguay, to reunite— eventual acephalia in the bloc, presumably to address the an alternative was suggested: “A Venezuelan Venezuelan crisis—while create a committee of taking advantage of U.S. ambassadors from Mercosur’s collapse would have Secretary of State ’s member states to assume repercussions for the visit to Argentina and Brazil. the rotating presidency entire northern part Mercosur’s situation was one instead of Venezuela until it of the topics at the meeting is Argentina’s turn to lead. of South America, between Brazil’s then acting While the situation is new, it especially for president, Michel Temer, would not be the first time Colombia, with the Brazil’s Foreign Minister Jose a situation outside of what United States engaged Serra and Kerry during the has been established for the opening ceremony in Rio transfer of regional leadership in its peace process” de Janeiro. has occurred.

It is also necessary to Let us remember that in emphasize two more 2013–2014, when Paraguay factors that affect use of was suspended from the the democratic clause. A bloc—allowing Venezuela Venezuelan collapse would to join3—the Caribbean have repercussions for the country was at the head of entire northern part of Mercosur for one year. One South America, especially of the reasons was that the for Colombia, with the presidents failed to meet United States engaged in its so the bloc’s leadership was peace process. Moreover, if not transferred. Meanwhile, disturbances were to arise Venezuela continued to in the Venezuelan capital, lead Mercosur without the the current United States formality of the process being Republican presidential questioned, which shows that, candidate, Donald Trump, in those days, politics prevailed would have another argument over statutes. against the international policies of his rivals.

3 In 2013, Paraguay, which had been suspended from in 2012 Mercosur because of former President Fernando Lugo’s removal following a political process in Parlia- ment, had not yet joined the bloc. Presidents Cristina Fernandez de Kirchner from Argentina and Dilma Rousseff from Brazil made the decision to suspend Paraguay, ratified by Uruguay’s President Jose Mujica. That shift allowed Venezuela to enter Mercosur as a full member.

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Two years later, with Uruguay’s firm position once again decision to transfer the left coordinators without “Uruguay stood presidency, Venezuela has faced consensus and, consequently, firm in its stance resistance from its regional Paraguay was not able to despite the pressure partners to assume command. achieve Venezuela’s exclusion Argentina, Brazil and Paraguay (the result it expected) and it received from argue that, on top of the complete removal from bloc Brazil, Paraguay and biannual and alphabetical leadership. Uruguay stood Argentina, preventing rotation, the decision must firm in its stance despite the be made “by consensus,” pressure it received from the suspension from something that seems very Brazil, Paraguay and Argentina, becoming effective” difficult to achieve today. preventing the suspension from becoming effective. As part of this institutional paralysis, delegates from After a tough meeting, it the founding countries are concluded without any looking for other arguments to progress and the decision legally justify the inability of was postponed for a few Maduro’s country to lead. At a months. The idea to defer the meeting Aug. 12, coordinators decision until December was from Argentina, Brazil and considered, giving Venezuela Paraguay analyzed Venezuela’s time to meet the demands level of compliance with stated in the bloc’s membership Mercosur’s regulations. protocol or leaving room to convene a recall referendum. Specialists from the For now, while the leaderless governments of Paraguay, state persists, a “calendar of Argentina and Brazil meetings” has been designed examined the 400 rules and to address the partners’ issues 50 agreements the country of interest. must meet in order to become a full member of Mercosur, Likewise, Venezuela’s rules that expired Aug. 12. strategy was to call for a new Failure to comply with any of coordinators meeting a day those commitments would later. The meeting would not mean Venezuela’s removal as allow the bloc to achieve any a member of the international consensus since Uruguay and organization. The situation would be the only was supposed to be settled countries in attendance, but it Aug. 23, when the national would set a precedent of his coordinators of the bloc got intention to make use of his together to find a solution to status as temporary president the controversial Venezuelan of the bloc, further exposing presidency. However, Uruguay’s the division that lies within.

4 http://www.itamaraty.gov.br/pt-BR/notas-a-imprensa/14596-estado-da-implementa- cao-do-protocolo-de-adesao-da-venezuela-ao-mercosul

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According to a statement from the country has matched, Brazil’s Foreign Ministry,4 and in most cases surpassed, to date the Caribbean other member states in country has yet to adopt incorporating the bloc’s important agreements such regulatory framework. as ALADI’s No. 18 Economic Complementation (ACE); 2002’s Likewise, the Bolivarian Residency Agreement for Republic of Venezuela Nationals of Mercosur member accuses Argentina, Brazil states; and 2005’s Commitment and Paraguay of forming a for the Promotion and “Triple Alliance”6 to attack the Protection of Mercosur’s country, placing “prevailing Human Rights.5 neoliberal political and ideological preferences over the “Another proposal Aug. 17, after meeting with interests of peoples and their the leaders of Venezuela’s integration processes.” being evaluated opposition, Brazilian Minister is the ability to of Foreign Affairs Jose Serra While the regional bloc’s three lower Venezuela’s once again confirmed the founding countries try to find position within country did not meet the a solution to guarantee the requirements to join the trade integration system functions the organization to bloc, including its violation of regularly, Venezuela has prevent Maduro from human rights. He also added already assumed the transfer. assuming office” that Brazil is negotiating a The Ministry of People’s Power plan with other countries for for Venezuela’s Foreign Affairs the bloc’s work to be carried has published the preliminary out before January, when schedule of activities for the Argentina will be assuming the remainder of 2016, in which presidency. Another proposal Caracas is hosting most of the being evaluated is the ability meetings and activities. to lower Venezuela’s position within the organization to prevent Maduro from 7. THE ROLE OF MEDIATOR assuming office. Building resistance against Meanwhile, Venezuela’s Venezuela’s continuation, deadline to formally assume Brazil’s and Paraguay’s Mercosur’s presidency is delegates have increased over. At the same time, the pressure on Buenos Aires Caribbean country denies and Montevideo, seeking to having failed to meet its raise additional arguments commitments and insists to assault the legitimacy

5 It is noted that in September 2013, Venezuela left the Inter-American Court of Hu- man Rights. Thereafter, the Court had no jurisdiction over Caracas. 6 In reference to the coalition formed by Argentina, Brazil and Uruguay against Para- guay during the War known as Triple Alliance, which took place in the 19th century.

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of Venezuela’s presidency. mediation since 1978, when Meanwhile, appealing to one Pope John Paul II resolved the of the principles that inspire border conflict in the Beagle states to settle their disputes in Channel between Argentina a peaceful manner,7 Argentina and Chile. is looking at the possibility of papal mediation in the matter. Although the Holy See has expressed its willingness to “Argentinian In mid-August, Argentinian contribute to the dialogue, it Chancellor Susana Chancellor Susana Malcorra has yet to formally receive a issued statements to the press formal request to mediate the Malcorra issued confirming progress has been conflict, either through the statements to the made in putting together Nunciature or the Secretary press confirming a mechanism that allows of State, according to the Holy the Vatican to intervene to See’s spokesperson, P. Federico progress has been unfreeze the regional bloc. The Lombardi, in late July. made in putting intention is to get the Pope together a mechanism to mediate, with Francisco However, given the uncertainty acting as an intermediary to about which nation should that allows the achieve a dialogue between assume control and from Vatican to intervene Venezuela’s government and what date, the alternative of to unfreeze the the opposition. Were he to having a third neutral power to regional bloc” accept, he, as the mediator, resolve the bloc’s institutional would be empowered to paralysis is strengthened. Thus, propose a non-mandatory basis the final decision will not have for agreement for all parties a political cost for any member involved. Taking into account states, most of all Argentina, each party’s position, he would where Macri would rid himself present a proposal to settle of the burden of having to take the dispute between them and a tougher position. reach an agreement based on that proposal. Currently, the founding states (with the exception of Following the recent Uruguay) have maintained rapprochement between the their position of disregarding United States and Cuba, the Venezuela as a as a valid Pope could reassume a leading partner for the bloc, which role in regional diplomacy. If is why they chose to move realized, it would mark the forward, without Venezuela’s second time Southern Cone participation, in negotiations countries have embraced papal with the European Union and

7 According to public international law, sovereign states can resort to negotiation, good practices, mediation, investigation, conciliation, arbitration, judicial settlement or regional and universal international organizations to settle their conflicts in a peaceful manner. The parties can choose any of the mechanisms in place for the peaceful resolution of their controversies, without any of them prevailing over the other.

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the Pacific Alliance. In this impasse: validate Venezuela’s sense, at the coordinators’ noncompliance with the bloc’s latest meeting, Uruguay was membership protocol, thus elected to lead the negotiations achieving its exclusion; wait with the European bloc, while three more months until it “The founding Paraguay was in charge of is Argentina’s turn to assume states (with the the efforts to join the Pacific leadership of the organization; exception of Uruguay) bloc. This way, Venezuela or formally invoke the have maintained holds Mercosur’s symbolic mediation of the Holy See in presidency, while Montevideo this conflict. their position remains as the headquarters. of disregarding Venezuela as a as a To conclude, the current state of affairs seems to present valid partner three future scenarios for for the bloc” achieving a way out of this

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Authors Marco Antonio Sabino is Partner and Chairman of S/A LLORENTE & CUENCA Brazil. Journalist (Cásper Libero, where he was also a lecturer) and lawyer (Universidad de São Paulo-USP-), with postgraduate studies in Organisational Communication (USP), he is specialised in economic, legal and governmental matters. He has extensive experience in the creation and implementation of communication plans for the Brazilian government and multinational companies. He was the Communication Director of the Telefónica Group in Brazil and managed the editorial staff of Bandeirantes Radio and TV. He was a reporter and editor of the business magazine Exame and he also acted as a special reporter for Globo TV. In 2006, he founded S/A Comunicação, and positio- ned the company among the largest and most awarded communication agencies in Brazil. S/A was, for seven years, the representative of the Swedish company Kreab in Brazil. At the end of 2015, S/A was acquired by LLORENTE & CUENCA. [email protected]

Pablo Abiad is Partner and Managing Director at LLORENTE & CUENCA Argentina. He joined the firm in 2009, and is an expert in Corporate Communication and Public Affairs, having developed strategies for such major Argenti- nean and multinational corporations as Barrick, Bimbo and Petrobras. He worked for over 15 years for the daily newspa- per Clarín, where he covered legal issues in the Politics and Economy section, and collaborated with other media in both Argentina and overseas. He is the author of two journalist investigation books that had a strong impact on public opinion and has given lectures on journalist in the country and neighbouring regions. [email protected]

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