A negotiated transition requires finding common ground between those who see their differences as irreconcilable. Unless the parts to Venezuela’s conflict learn to cooperate in addressing the country’s most pressing problems, negotiations are unlikely to yield a stable outcome.
More than two years after Juan Guaidó’s decision to assume the powers of the presidency with the backing of the United States, Europe, and Latin America’s most important economies, Venezuela’s opposition finds itself in complete disarray and with a strategy in tatters. Maduro has consolidated his control over the military and key state institutions and proved able to weather harsh economic sanctions. Recent opinion polls place the approval ratings of all major opposition leaders, including Guaidó, in the low double digits and at levels that are not statistically distinguishable from those of Maduro. Prediction markets are now only assigning a 1 percent probability to Nicolás Maduro being the next Latin American leader to leave office. In contrast, back in February of 2019, they were pricing in a 64% probability that he would leave office that year.
Increasing awareness that Venezuela’s crisis has reached a dead end has led to a resurgence of efforts to rethink the strategy of key actors. Recent contributions by specialists have ranged from calls to double-down on the Trump administration’s maximum pressure strategy, more multilateralism, and direct engagement with both the Maduro regime and broader sets of opposition actors and proposals for power-sharing agreements and incremental reforms. The opposition itself appears unclear as to what its next steps should be, with a growing set of actors proposing that it return to a strategy of electoral engagement in this year’s gubernatorial and mayoral elections.
Meanwhile, the governments that supported Guaidó’s claim to the presidency now appear to increasingly converge on the idea that a negotiated solution is the only way out of Venezuela’s crisis. That emphasis is understandable and expectable. The Biden administration has, for all effects, shelved the ideas of “all options on the table” and “maximum pressure,” which had characterized Trump’s Venezuela approach. In doing so, it has also sent a clear message that it is up to the opposition to generate the dynamics that can lead to a Venezuelan transition. The opposition may have the sympathy and the support of the international community, but it should not count on external actors to dislodge Maduro from power.
The opposition itself appears unclear as to what its next steps should be, with more actors calling for a return to electoral engagement.
Regrettably, much opposition strategizing over the past four years was premised on the thesis that the international community would ultimately be able to put a stop to Maduro. Backed by the apparently unwavering support of the world’s largest superpower and its allies, it seemed to be just a matter of time until the regime was forced out of power. That’s why Venezuela’s opposition put so little thinking on the issue of how to co-exist with Maduro. It was convinced it wouldn’t need to.
To many opposition supporters who spent the better part of the last two years expecting Trump to force Maduro out of power, these are uncomfortable and somewhat depressing thoughts. Viewed from their vantage point, Venezuela’s conflict must look something like a dystopian version of Al Pacino’s 1975 bank robbery hostage drama Dog Day Afternoon. In the movie’s original version, the kidnapper is fooled into believing he will be allowed to escape to the airport but is arrested after the police shoot his partner. The way Venezuela’s opposition is living through it, it’s as if the police had decided to leave the scene in the midst of the siege, dropping a note to the hostages telling them it’s up to them to reach a deal with their kidnappers.
An op-ed published last week by former Guaidó official Ricardo Hausmann and José Ramón Morales, a Venezuelan graduate student at Harvard’s Kennedy School, illustrates well these frustrations. Hausmann and Morales argue that sanctions and recognition of the interim government are what has given the opposition its bargaining power and that, if anything, they need to be recalibrated to make the regime’s life even harder. (For the first time, however, they admit that sanctions have hurt some ordinary Venezuelans.) In terms of concrete policy recommendations, they suggest a re-do of the virtual popular consultation made by the opposition last year, now to elect a new interim president, and an expansion of Guaidó’s program of cash transfers to health workers, both of which require the use of a smartphone or a platform with internet access.
Gone are any references to military intervention, which was at the center of Hausmann’s Venezuela proposals three years ago. They are now replaced by proposals to upscale digital initiatives of inherently limited reach in the Venezuelan territory that appear unlikely to affect the country’s political equilibrium significantly. Applied to a country in which cell phone penetration has gone down massively over the past years and is now less than half of the population, e-voting and direct cash transfer mechanisms requiring the use of smartphones would reach only a minority and risk contributing even more to the political marginalization of the opposition.
Venezuela’s opposition put little thinking on how to co-exist with Maduro because it was convinced it wouldn’t need to.
Perhaps even more striking in the Hausmann-Morales piece is the lack of consideration given to any solution that contemplates co-operation between the Venezuelan opposition and the Maduro regime. The omission of even an allusion to the National Vaccination Roundtable formed under the Pan American Health Organization’s sponsorship to try to forge a cooperative solution to allow the entry of Venezuela into the COVAX program for accessing COVID-19 vaccines is telling. It suggests that the authors view co-operation with the Maduro regime – even the limited forms of co-operation that have currently been embraced by the Guaidó administration – as essentially impossible.
This line of thinking suggests that the opposition’s intelligentsia continues to be focused on a view of the Venezuelan conflict as inherently confrontational. This is not surprising, but it is problematic. It suggests that we can expect the opposition to continue to pour all its efforts into trying to win an all-out battle with Chavismo. The problem is that this is a battle that it is clearly losing and in which the tide seems unlikely to turn any time soon.
THINKING ABOUT CONFLICT
Political power is an excludable good: the more that one has of it, the fewer others have. So are most of the goods that we consume. Yet, in contrast to apples or arepas, the distribution of power is inherently relational. I can consume my arepa in isolation, but power is useless without anyone to exert it over. Power is thus not allocated through markets; it is disputed over in the public sphere.
Sometimes there is an orderly institutional process to determine the allocation of power. That is the case in countries that have elections and those with authoritarian systems with well-established institutional mechanisms that determine the allocation and transfer of power (e.g., the Chinese Communist Party). In other cases, the parts vying for power enter explicit armed conflict – be it through wars, military insurrections, or revolutions.
Contractualist thinking going back at least to the Enlightenment, has emphasized the incentives for co-operation as the source of modern democratic institutions. In this vision, democracy is much more than elections. It is a set of institutions that determine the distribution of political power through a combination of suffrage and a basic institutional framework that limits the power of elected officials. Political theorists generally do not consider political regimes in which there is no effective separation of powers as democracies.
Generally speaking, the higher the stakes of power (the benefits of being in power relative to the costs of being out of power), the more likely that we are to see conflict instead of peaceful resolution. There are few if any incentives for the losers of the political contest to recognize defeat in winner-take-all political systems.
In zero-sum political games, there is nothing to gain from negotiation.
Thus, it is not surprising to see political conflict be such a pervasive element in Venezuelan political life since 1999 – the year in which Chávez won a vote to change the Constitution. The 1999 Constitution significantly increased the powers of the executive branch, even granting it the power to initiate the dissolution of other branches of government. More than a democracy, Venezuela under the 1999 Constitution looks like an electoral autocracy.
One marker of how unstable Venezuela’s institutional design is can be found in the frequency with which the losers of Venezuelan elections fail to recognize the results. Venezuela’s opposition called fraud with little to no evidence in 2004, 2013 and 2017, and boycotted elections, alleging that they were hopelessly rigged in 2005, 2018, and 2020. The government has essentially done the same, even if shrouded in apparent formal recognition of the results. When it lost a recall referendum in 2007, it simply scheduled a new one to get the constitutional provision it was most interested in passed and used the legislative process to advance many of the reforms that had been turned down by voters. When it lost the parliamentary elections in 2015, it used its control over the Supreme Court to strip the National Assembly’s powers. And when it became clear that the opposition was about to collect enough signatures to invoke a recall referendum in 2004 and 2016, it charged the opposition with falsifying signatures and used its control over electoral authorities and courts to create significant obstacles to the holding of the recall. Venezuelan losers, at least in politics, are always sore losers.
Against this backdrop, it is hard to see how the holding of new presidential and parliamentary elections would by itself be a solution to the country’s governability problems. It is not that it is hard to visualize such elections eventually being held. It is even conceivable that the sides could reach an agreement to hold them under international observation and with new, more credible, electoral authorities. What is much harder to imagine is the loser of that election, whoever it may be, accepting defeat.
Until now, the opposition has tried to win this confrontation through the use of all the means at its disposal – popular mobilization, international recognition, and other countries’ willingness to impose personal and economic sanctions on the Maduro regime. There is, of course, nothing wrong with this approach if you think you can win. The problem is that in this contest of forces, it appears increasingly clear that it is Maduro who is winning.
The alternative to confrontation is negotiation. Yet to many on the opposition side, dialogue and negotiations are simply by-words for Maduro’s stabilization in power. This is understandable. Venezuela has suffered a history of failed negotiations over the past five years – or, if we take a broader look, going back as far as 2002. In the few exceptions where some agreements have been reached – such as the December 2016 Vatican-mediated talks or the June 2020 AN- Ministry of Health COVID agreement – they have broken down rapidly under back-and-forth recriminations. Why should it be any different now?
Failure of Venezuela’s negotiations should not come as a surprise to anyone. Negotiation theory is based on the idea of finding mutually advantageous arenas of co-operation. In zero-sum political games, such as those in which parties are fighting over the distribution of power or control and the costs of fighting for the parts in conflict are low, there is little to gain from negotiation. Both sides will insist on a negotiated solution in which they are at least as well off as in the status quo, but by definition of a zero-sum game, the only such solution is the status quo itself. In the rare instances where parties come to an agreement, it may be because they have imperfect information about the actual outcomes; once they find these out, the party that lost out from a deal will rapidly try to go back to the status quo by reneging on whatever deal it agreed to.
Political negotiations can only yield stable changes from initial conditions if bargaining takes place over a positive-sum structure of payoffs and there is a way to make the agreements enforceable. Agreements can be enforceable only if it is to the advantage of players to continue complying with them over time or if there is a technology that can be used to enforce commitment (i.e., to punish or prohibit lack of compliance).
For a political negotiation to yield a stable outcome that is conducive to a political transition in Venezuela, that transition must yield improvements – or at the very least, avoid deteriorations – relative to the status quo for both parts. That is a tall order: it requires Chavismo to be made at least as well off outside of power as it is in power. In their article, Hausmann and Morales offer this fact as a justification for a strategy of tightening sanctions, aiming to “make life as burdensome as possible for the elite” and thus lowering their payoffs under the status quo. Yet they ignore the effect of sanctions and criminalization of the regime on its payoff under the alternative to the status quo in which they hand over power. The more that the regime expects to be persecuted once out of power, the less willing it will be to enter a negotiation that risks its hold on power. In this sense, sanctions appear to have made transition less, not more, likely.
The more the regime expects persecution once out of power, the less willing it will be to risk their hold on power through a negotiation.
A necessary, even if uncomfortable, implication of this line of reasoning is that there will be no negotiated solution in Venezuela unless top regime leaders believe that they can be reasonably safe from going to jail once they give up power. Such guarantees cannot be credibly given in the framework of international law, where states have limited to no capacity to constrain future actions of their judiciaries. The hard truth is that the only way they can be given is by allowing Chavismo to retain sufficient influence and power during the transition so as to allow them to be reasonably protected from prosecution inside the country.
Doing so would likely require a constitutional reform that significantly restrained the powers of the presidency – including the ability to convene all-powerful constitutional conventions. It would also likely include explicit constitutional guarantees that either the current supreme court and prosecutor general – or new appointees made by Chavismo to those positions – would remain in place for the duration of their terms, thus significantly constraining any attempts to prosecute outgoing officials in Venezuelan courts.
One possible model for the transition would be that of Nicaragua in 1990, in which the opposition candidate committed to respecting the institutions set up by the 1987 Constitution, including Sandinista control of the army and judiciary. Violeta Chamorro won control over the executive branch in 1990. She did not win control over the power of the whole state. Had such absolute power been at stake, she would probably never have been allowed to win. The guarantees implicit in this accord allowed the Sandinistas to remain politically active, and in fact, to come back to power 16 years later. Such risks are inherent in any power-sharing agreement, or, more specifically, in any agreement in which one side does not obliterate the other.
To many, the sole idea that Maduro and his clique will not be made to answer for their crimes in a transition is unacceptable. There are good reasons to think that way. The inviolability of human rights and the condemnation of regimes that systematically allow them to be violated – much more so if they can be said to have incurred in crimes against humanity – is a cornerstone of the way that we now think about basic justice.
In fact, there is one very strong instrumental argument why Maduro and the top echelons of the regime should not be allowed to get away without facing justice. Even if allowing them to do so were to facilitate a Venezuelan transition, it would simply invite other autocrats to commit the same atrocities to stay in power. For penalties against heinous crimes committed by states to have an actual bite, they must be enforced consistently, and that implies not opening the door to sacrificing them for reasons of political expediency.
This argument may be right, but it is little consolation to Venezuelans. In it, the suffering of Venezuelans under Maduro is the cost that must be paid to make an example that will deter other leaders from going down the route of autocracy. This may be to the benefit of the people of other countries who will be able to avert a slide into autocracy as a result, but not for the millions of Venezuelans that have to live under Maduro’s regime.
The reality is that political transitions sometimes require making unsavory choices. Ultimately, Venezuela’s opposition must decide whether it wants to continue holding to the idea of a perfect transition that never occurs or if it instead decides to opt for a flawed yet real process of change.
Trump’s special envoy to Venezuela, Elliot Abrams, highlighted some of these issues in a lucid 2017 article reflecting on the death of Panamanian strongman Manuel Noriega. It is worth citing him at length:
“[W]e were able to offer Noriega the deal he did not take—you leave, and we quash the indictment, and you can go find refuge someplace and enjoy your money—just as we had done in Haiti. There in 1985, we had successfully gotten Jean-Claude “Baby Doc” Duvalier out.
Reagan also got Ferdinand Marcos to leave power in the Philippines and go into exile in 1986.
In all these cases, the negotiations would likely have been impossible had there been an International Criminal Court (ICC). If there had been, these dictators would have held on tight, as Noriega actually did. More repression and violence would have been the result.
The ICC is meant to bring justice, but one should be aware of the possible cost: it persuades tyrants that leaving power means life in prison or death, and that makes it much harder to get them out of power.”
Venezuela’s opposition – and the international community – may now face exactly this choice. There is a real possibility that the constraints set out by Abrams will also be in place in Venezuela and that Maduro will ultimately face indictment from the ICC. Even if he doesn’t, it seems unlikely that the U.S. or other countries would be able to credibly commit not prosecuting him for the multiple crimes he has been accused of.
SMALL IS POSSIBLE
Even if Venezuela’s opposition is willing to accept the cost of cohabitation with a regime that many of its followers consider inherently criminal, a grand agreement would be extremely hard to implement. Doing so would require considerable international support, political will, and a good deal of luck. From the outset, it would be riddled with implementation problems. The opposition would have to enter commitments that it may have no incentive to abide by. Assuming that its future choices could be sufficiently constrained by legal and constitutional reforms is perhaps placing too much trust on the power of formal constraints.
There is a less grandiose yet perhaps much more realistic alternative. Sectoral negotiations – those aimed at cooperating to solve specific problems of Venezuelans – may offer tangible spaces for co-operation and positive-sum interactions. By sectoral negotiations, we mean those negotiations that have direct value to Venezuelans over and above the instrumental use for solving other problems. We distinguish sectoral agreements from partial agreements, which are those in which the sphere of negotiation has instrumental value in addressing a more complex problem. The appointment of electoral authorities would be an example of a partial agreement: it has no meaningful direct value to members of society except for its contribution to a process that does have value – the capacity to exercise the political freedom to elect government officials. A humanitarian vaccination agreement, in contrast, is a sectoral agreement in that it solves a specific problem and has value for Venezuelans even if other issues are not addressed.
The fact that sectoral agreements have value for people in and of themselves implies that there are potential gains from co-operation through them between the parts to the country’s conflict. For example, political leaders from both factions that participate in an agreement to vaccinate the country against COVID and are seen by voters as having contributed to solving that problem will accumulate important political capital that will allow them to aspire to important roles in the future under diverse political scenarios. It is easier to find immediate gains from co-operation in sectoral agreements than in partial or global political agreements, among other reasons because they require actors to run much lesser risks and allow them to build up credibility over time in the context of repeated interactions.
Venezuela’s opposition must decide between a perfect transition that might never occur or a flawed yet real process of change.
For the sides to find that it makes sense to enter into these sectoral agreements, they must be convinced that they would be unable to address the problems on their own. In other words, there must be genuine gains from co-operation. Maduro has no reason to seek Guaidó’s help to vaccinate the country if Maduro can vaccinate the country by himself and claim all the political benefits from doing so.
Interestingly, because of the current structure of constraints over control of assets and legal representation created by sanctions and the recognition of Guaidó’s interim government, there are many problems that Maduro and Guaidó can only solve cooperatively. Those that require the mobilization of resources – for example, by accessing blocked funds or oil markets – are completely intractable in the absence of co-operation. Even having access to the funds, there is not much Guaidó can do with them (at least inside the country) without cooperating with Maduro; similarly, there is little that Maduro can do regarding costly policy interventions if he doesn’t have access to the funds to pay for them.
That said, it is not improbable that the sides could still end up stuck in irreconcilable differences, which in the end are reflective of the zero-sum struggle for power. Both sides are likely to ask themselves how these agreements will factor into their bid to reach or maintain their hold on power. If, for example, mobilizing resources that help address the humanitarian emergency leads to increases in Maduro’s popularity, allowing him to win a future election, or simply reducing the chances that a popular or military rebellion will oust him, the opposition is likely to conclude that entering into the deal is a poor choice. This type of reasoning likely explains the opposition-controlled National Assembly’s decision to shelve the CAF/UNDP initiative to repair the country’s electricity infrastructure in December of 2019.
Sectoral agreements today may nevertheless be more feasible than conceptually similar agreements put forward in 2019 or 2020. One reason, as we have already argued, is that the opposition is aware that its strategy is floundering. Recognition that it will not win the winner-take-all contest may lead it to consider alternatives that amount to limited power-sharing and which it would have refused in the past. Maduro, on the other hand, still needs to solve concrete economic and humanitarian problems, some of which he cannot deal with without the opposition. In other words, the opposition needs the government more than in the past, and the government still needs the opposition as much as it did in the past.
Yet perhaps a more important reason why humanitarian sectoral agreements may be feasible is that they may be able to count on the support of key international actors who could converge under a multilateral approach to convince both parts to go along with the solution. It is unlikely that the opposition, which depends for its bargaining power on international recognition and sanctions, would refuse to go along with an initiative strongly supported by the U.S. and Europe. It is also unlikely that Maduro would refuse to go along with an initiative that China and Russia strongly support. And while it may not be feasible to reach an agreement between the US, EU, China, and Russia on the design of a grand political transition of power in Venezuela, it may be much more feasible for such an agreement to emerge around an initiative to address the country’s economic and humanitarian crisis. A UN Security Council unanimous resolution in support of a cooperative humanitarian agreement in Venezuela would be very difficult for either Maduro or Guaidó to refuse.
Sectoral negotiations may offer tangible spaces for cooperation and positive-sum interactions.
Building co-operation from the bottom-up may not sound like the most ambitious of goals. Yet by creating institutions that can model co—operation and allow new political actors – perhaps less stained by the conflict of the past years – to emerge, such an approach can begin to build a different model through which Venezuelans from different sides of the country’s political spectrum engage with each other and begin to address their country’s problems. Ultimately, a cooperative vision of society will require mechanisms through which Venezuelans from both camps can work together and address the pressing issues of hunger, disease, and deprivation.
In his compelling recounting of the secret talks that led to the end of Apartheid, South African philosopher Willie Esterhuyse, who acted as a key interlocutor and intermediary in the talks, recalls the pivotal moments in which the talks between the South African government and leaders of Nelson Mandela’s African National Congress (ANC) party took the turn that would enable them to reach an end to the deadlock and begin South Africa’s transition to non-racial, inclusive democracy. He recalls when, after several meetings between representatives of the ANC and Afrikaner reformists, the conversations began to revolve around shared goals:
“I looked at [ANC leaders] Mbeki, Pahad, Trew, [and Afrikaner representatives] DeKlerk and Terreblanche, and wrote half-amazed in my notebook: ‘We’re not even ‘friendly enemies’ because we trust each other with the future even though we have no idea what it will look like in five or ten years’ time. We’re sitting here discussing Botha, Mandela, De Klerk, Tambo, the violence in the country, the release of political prisoners and negotiations as if we’re playing for the same team. We accept that our country is being consumed by conflict, and that a scorched earth is not in anyone’s interest. And we share words like ‘peace’ and ‘reconciliation’ with each other.’”
Will such a shared vision ever emerge in conversations between Chavista and opposition leaders? Perhaps. Perhaps not. I imagine such prospects may have seemed similarly unlikely to observers of the South African crisis in 1989. At the very least, Venezuelans of different political persuasions – and those in the international community who wish to help us – should devote all of our efforts to try to establish such common ground. The alternative is the prolongation of a conflict that will continue to destroy the future of millions of Venezuelans
 In the February Datanálisis survey, for example, Guaidó’s approval rating fell to 17.6%, 3.4 percentage points above that of Maduro, a difference that is within the poll’s margin of error of ±4.4%.
 More precisely, a bet paying $1 if Maduro is the next Latin American leader to leave office currently trades for one cent. Note that the question has changed over time: two years ago it referred to whether Maduro would be in office at the end of the year, while now it refers to whether he will be the next leader to leave office. See: Which of these 10 Latin American leaders will leave office next? PredictIt, 2021. On the conditions under which prediction markets can be interpreted as probabilities, see Wolfers & Zitzewitz (2006) Interpreting prediction market prices as probabilities, NBER, Working Paper No. 12200, April.
 See Opinion: Trump’s bluster failed Venezuela. Biden must use diplomatic and economic levers to address the crisis, The Washington Post, January 19, 2021, Venezuela is the perfect test case for Biden’s promised return to multilateralism, Responsible Statecraft, January 12, 2021, and The Exile Effect: Venezuela’s Overseas Opposition and Social Media, Crisis Group, February 24, 2021.
 La oposición se pone en marcha para las elecciones regionales en Venezuela pese al rechazo de Guaidó [The opposition starts to move toward regional elections in Venezuela despite Guaidó’s rejection], Europa Press, February 20, 2021.
 Note that cellphone penetration likely overestimates the share of Venezuelans with cellphone access given the number of persons who may have more than one line. Though we do not have data on this phenomenon, anecdotal evidence suggests that it is not uncommon among the country’s elites.
 Article 348 of the 1999 Constitution allows the president to convene elections for a Constitutional Convention that has the power to dissolve all existing branches of government.
 The recall was held in 2004 – and won by Chávez – but suspended in 2016 by Maduro-controlled courts, at a time at which polls consistently showed he would lose the vote.
 Both of these controls were time-bound. Humberto Ortega, Daniel Ortega’s brother, remained as head of the army until 1995. Sandinista-appointed justices were allowed to remain in office for the remainder of their 6-year terms, while Chamorro appointed two new justices, increasing the Court’s size to 9 magistrates. This implied that the Sandinista-appointed justices would hold the majority in the court until 1994.
 Elliott Abrams: How to Dispose of a Dictator Like Noriega, Yahoo News, June 2, 2017.
 The ICC is currently undertaking the third phase of preliminary examinations to determine whether crimes against humanity were committed in Venezuela following the 2017 wave of protests. The new phase began in November, after the ICC’s office of the prosecutor found “sufficient basis to believe that that crimes under jurisdiction of the Court have occurred.” See: Informe sobre las actividades de examen preliminar 2020 [Report on the activities of preliminary examinations 2020], ICC Office of the Prosecutor, December 4, 2020. This third phase will determine whether Venezuelan authorities have sought to investigate and prosecute persons involved in crimes against humanity. There is no deadline nor an expected date for this phase to conclude.