Non – Recognition of A Head of State as A Basis for the Denial of Immunity Ratione Personae (Case Study of United States Practice in the Nicolás Maduro Case from the Perspective of the Formation of Customary Internasional Law)

On January 3, 2026, Nicolás Maduro, Venezuela's incumbent president, was apprehended by United States military forces, raising questions about whether he retained immunity ratione personae despite the United States' longstanding refusal to recognize his presidency and its previous recognition of Juan Guaidó as Venezuela's interim president. This article examines whether United States practice in the Maduro case contributed to the formation of customary international law permitting the denial of immunity ratione personae to unrecognized heads of state. Employing a normative legal research method incorporating conceptual and case law approaches, the study analyzed primary, secondary, and tertiary legal materials, including the United Nations Charter, International Court of Justice (ICJ) jurisprudence, particularly the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) case, and relevant draft articles of the International Law Commission (ILC). The analysis focused on the two constituent elements of customary international law: state practice and opinio juris. The findings indicated that although the United States and several other states had refused to recognize Maduro's presidency, their positions were not supported by sufficiently widespread, consistent, and representative state practice or clear opinio juris demonstrating a belief that non-recognition legally extinguished personal immunity. Rather than establishing a new customary rule, the case highlighted the unresolved tension between the political dimensions of governmental recognition and the procedural, status-based nature of immunity ratione personae, particularly in circumstances involving competing claims to governmental authority. The study concluded that United States practice represented a form of contestation of existing legal norms rather than sufficient evidence of an established change in customary international law governing the personal immunity of heads of state.