The Salvadoran State of Emergency: A Comparative Analysis of Methods for Constitutional

On March 27, 2022, the Legislative Assembly of El Salvador granted President Nayib Bukele’s request to declare a national state of emergency, informally declaring war on gangs in line with the iron fist policies that have dominated Latin American politics for decades. [1] This legislative power is enshrined in the second section of Title II, Chapter I of the Salvadoran constitution, which limits the length of the state of emergency to 30 days. [2] However, as of October 2024, it has been re-declared over twenty-four times. [3] Under it, two percent of the adult population has been incarcerated, with human rights abuses, including arbitrary arrests, suspension of due process and free speech, and alleged prison torture, becoming institutionalized. [4] This same pattern of state of emergency declarations and constitutional and human rights law deterioration has been seen throughout the region, including in Venezuela and Honduras. However, this backsliding can not only be attributed to antidemocratic leaders but also the language of provisions for states of emergency and the broader way in which national constitutions incorporate international laws. These two factors are crucial in determining the survivability of human rights. Serving as a useful counterexample to the Salvadoran case is South Africa’s constitution and case law, which was created in part to address the apartheid regime’s abuse of states of emergency.

While the state of emergency provisions necessarily suspend some otherwise irrevocable rights, they are rendered particularly dangerous when constitutions lack adequate legal mechanisms to end them. Article 29 of the Salvadoran Constitution states, “In cases of war, invasion of territory, rebellion, sedition, catastrophe, epidemic or other general calamity, or grave disturbances of the public order,” the legislature may vote to suspend various articles of the constitution. [5] These include ones providing for the freedom of association and assembly, the presumption of innocence, and rights to criminal defendants. [6] Article 30 follows by declaring the aforementioned 30-day limit, which is rendered almost meaningless by the statement “Once this period has passed, the suspension can be prolonged, for the same period and through a new decree, if the circumstances that motivated it continue.” [7] The lack of specific language empowers legislators to justify extensions by merely claiming that they perceive the threat to be continuing, regardless of the empirical reality. For instance, the national homicide rate fell 70 percent in 2023 according to Salvadoran authorities, demonstrating that the circumstances had indeed changed, and yet the state of emergency has continued into 2024. [8] In other words, the limits do not exist in practice. Honduras has faced a similar problem, as its own state of emergency, which was inspired by El Salvador’s, has been extended for over a year and has seen similar human rights abuses. [9] The fact that the Salvadoran case is not the exception emphasizes the slippery slope that arises when governments prioritize supposed domestic security needs over the civil rights of citizens and the need for a legal framework that properly limits both the suspension power of states of emergency and their length once they begin.

International law is intended to function as a preventative framework against such abuses; however, the mere existence of international standards, documents, and organizations is not enough. While they establish laws that can be applied equally across borders, international human rights laws are ultimately insufficient at protecting abuses on a domestic level due to their unenforceability. For example, Article 4 of the International Covenant for Civil and Political Rights (ICCPR) attempts to tackle the problem of states of emergency, stating that suspensions of rights must be made “to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law.” [10]  The Article states several articles that states cannot be derogated from, including Article 7, the provision against torture and cruel and unusual punishment. [11] El Salvador is in clear violation of these articles, yet it has received no consequences from the UN or outside parties. This reality is because there are only two mechanisms in place to ensure compliance to the ICCPR, neither of which includes an enforcement procedure. The first requires that members produce periodic reports on their efforts to implement the ICCPR, and the second—which enables members to file complaints against each other—has never been used. [12]  The Universal Declaration of Human Rights (UDHR) faces a similar problem, as its authority rests not on the legal weight of the standards but “the ‘naming and shaming’ method, particularly the ‘practice of focusing moral opprobrium upon violators’”—a method that “is weak at best.” [13] The voice of international organizations has also proven weak. The Inter-American Commission of Human Rights (IACHR) of the Organization of American States called for an end to the state of emergency in early September—but because the body only has the power to recommend action, the Salvadoran government did not and has not changed course. [14]

The lack of power of international laws suggests that the individual state must be the primary place where human rights law originates; thus, constitutions must enshrine standards to adequately protect against abuses. Comparing the Salvadoran and South African constitutions illuminate the ways this incorporation can take shape. El Salvador’s method of explicit incorporation is expressed via Article 144, which states, “The international treaties celebrated by El Salvador with other states or with international organizations constitute the laws of the Republic … In the case of conflict between the treaty and the law, the treaty will prevail.” [15] This method of incorporation gives supremacy to international law, something that intuitively would solve the problem of unenforceability.  The South African method includes a similar concept of supremacy of international standards while still maintaining the separation between domestic law and international law. This balancing act is displayed in Article 233: “When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.” [16]

On the first interpretation, the difference between the two articles can seem arbitrary, however, their effect on the maintenance of human rights in their respective countries is markedly different, suggesting the importance of maintaining domestic judicial independence from foreign frameworks. The explicit incorporation method of El Salvador fails to sufficiently establish this independence at a cost to human rights. The forced strict adherence “places courts in a situation where they risk their own legitimacy by becoming mere puppets of the jurisprudence of international courts.” [17] This, in turn, incentivizes courts to assert their own supremacy through “methods of interpretation that, on the surface, appear to cede to international law, but in fact misconstrue international standards to fit with the judiciary’s view of the proper outcome of a case.” [18] The 2013 Beatriz case demonstrates this noted problem. In this case, the petitioner filed a writ of protection to the Constitutional Chamber of the Supreme Court of Justice to receive an abortion to avoid health complications from her high-risk pregnancy—an action taken due to El Salvador’s complete abortion ban. [19] The Chamber denied her petition on grounds that her rights to life and health were already being guaranteed by her medical personnel. [20] This decision is notable in that it was later determined by IACHR to violate numerous human rights agreements, including Articles 1.1 and 2 of the American Convention, Articles 1 and 6 of the Inter-American Convention to Prevent and Punish Torture and Article 7 of the Convention of Belém do Pará, “which entails an obligation for States to prevent and punish violence against women.” [21] At the same time, however, the Salvadoran court justified its ruling based on the right to health, a right enshrined in Article 25 of the UDHR. [22] This signifies that the sheer amount of international treaties forced into Salvadoran law allowed the court to pick and choose which ones to privilege to ensure their interpretation could be made.

The South African case The State v. T. Makwanyane and M. Mchunu (1995) provides a striking contrast to El Salvador’s, demonstrating how its constitutional method of incorporation avoids the problem of domestic credibility to produce rulings more faithful to international standards. In this case, the two appellants received the death penalty, and their first appeal was denied pursuant to the Criminal Procedure Act No. 51 of 1977, which held that capital punishment was a “competent sentence for murder.” [23] The case went on to the Constitutional Court, which determined that the death penalty was unconstitutional. [24] The ruling considered a myriad of international decisions on the matter, including those by IACHR, the European Commission, and the United Nations, declaring that they “have to be considered because of their relevance to section 35(1) of the Constitution,” which states the rights for the arrested, detained, and accused. [25] The legal logic in the ruling defends against the legitimacy problem by making it clear that international standards can only be applicable because of a domestic constitutional provision. The court, as a result, has no incentive to misconstrue international law and can meaningfully engage with it instead to produce more compatible rulings.

Each country’s constitutional provision for states of emergency also reflect their difference in approach to incorporation. South Africa’s is enshrined in Article 37, and is far more robust than El Salvador’s. It establishes rigorous standards for extending the state of emergency, including a hard cap at three months, with the first extension requiring a simple majority of Assembly votes and the second requiring a supermajority. [26] It also models itself similarly to Article 4 of the ICCPR, stating “Any legislation enacted in consequence of a declaration of a state of emergency may derogate from the Bill of Rights only to the extent that the derogation is strictly required by the emergency; and the legislation is consistent with the Republic’s obligations under international law applicable to states of emergency.” [27] Article 37’s real strength, however, comes in its allowance of the courts to decide on the validity of the declaration of the state of emergency, extensions, and any action or legislation taken as a consequence. [28] El Salvador’s state of emergency provision, by comparison, more closely resembles the one of Apartheid South Africa. [29] By not having a legal mechanism that allows the courts to decide whether a state of emergency should be declared, El Salvador enshrines a loophole for its Article 144 and weakens its court system, while South Africa provides a robust mechanism that has successfully restricted the ability of the government to declare states of emergency and commit abuses.

Human rights raw lives and dies with constitutions. The South African approach to both incorporation of international human rights law and states of emergency provides a model of reform for countries like El Salvador to follow to ensure that human rights go unthreatened. It is, after all, the language of the constitution that enabled President Bukele to begin the perpetual emergency in the first place.

Edited by Jessica Ye

[1] Associated Press,“El Salvador extends anti-gang emergency decree for 24th time. It’s now been in effect for two years,” Associated Press, March 9, 2024, https://apnews.com/article/el-salvador-gang-crackdown-emergency-decree-154d50d40d1f2a46a48b6880624df141.

[2] Constitución de la República de El Salvador, December 16, 1983, 6 https://www.asamblea.gob.sv/sites/default/files/documents/decretos/98EA5BC4-FA64-4313-8CD2-7193BE473CFE.pdf.[1] [2] 

[3] Associated Press, “El Salvador”

[4] Ryan Beg and Henry Ziemer, “Constraining States of Exception,” Center for Strategic and International Studies, June 8, 2023, https://www.csis.org/analysis/constraining-states-exception; Sanobar Valiani, “The War on Gangs: El Salvador’s Playground for International Human Rights Violations,” University of Miami Inter-American Law Review 55, no. 1 (2023): 267-268.

[5] Constitución, 6

[6] Constitución, 2-3

[7] Constitución, 6

[8] Reuters, “El Salvador says murders fell 70% in 2023 as it cracked down on gangs,” Reuters, January 3, 2024, https://www.reuters.com/world/americas/el-salvador-says-murders-fell-70-2023-it-cracked-down-gangs-2024-01-03/.

[9] Adeline Neau, “A year on, Honduras’ ‘Bukele-like’ approach to security is putting everybody in danger,” Amnesty International, December 11, 2023, https://www.amnesty.org/en/latest/news/2023/12/honduras-bukele-like-approach-to-security/.

[10] United Nations General Assembly, “International Covenant on Civil and Political Rights,” December 16, 1966, https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights.

[11] United Nations, “International Covenant”

[12] Valiani, “War on Gangs”: 290-291

[13] Valiani, “War on Gangs”: 289

[14] Inter-American Commission on Human Rights, “IACHR Issues Report on State of Emergency and Human Rights in El Salvador,” September 4, 2024, https://www.oas.org/en/iachr/jsForm/?File=/en/iachr/media_center/preleases/2024/207.asp.

[15] Constitución, 31

[16] The Constitution of the Republic of South Africa, May 8, 1996, 120, https://www.justice.gov.za/constitution/SAConstitution-web-eng.pdf.

[17] Mary Healy, “Constitutional Incorporation of International Human Rights Standards: An Effective Legal Mechanism?,” Chicago Journal of International Law Online 2, no. 2 (2023): 128

[18] Healy, “Constitutional Incorporation”: 122

[19] Human Rights Watch, “Human Rights Watch Amicus Curiae in Case Beatriz and others V. El Salvador,” April 7, 2023, https://www.hrw.org/news/2024/06/17/human-rights-watch-amicus-curiae-case-beatriz-and-others-v-el-salvador#:~:text=The%20Right%20to%20Health,-WHO%20has%20defined&text=Beatriz%20was%20diagnosed%20with%20a,her%20mental%20and%20physical%20health.

[20] Human Rights Watch, “Amicus Curiae”

[21] Human Rights Watch, “Amicus Curiae”

[22] United Nations General Assembly, “Universal Declaration of Human Rights,” December 10, 1948, https://www.un.org/sites/un2.un.org/files/2021/03/udhr.pdf.

[23] The State v. T. Makwanyane and M. Mchunu, CCT/3/94 (1995), https://www.saflii.org/za/cases/ZACC/1995/3.html.

[24] The State v. T. Makwanyane and M. Mchunu, CCT/3/94 (1995), https://www.saflii.org/za/cases/ZACC/1995/3.html.

[245] The State v. T. Makwanyane and M. Mchunu, CCT/3/94 (1995), https://www.saflii.org/za/cases/ZACC/1995/3.html.

[26] The Constitution, 16-17

[27] The Constitution, 17

[28] The Constitution, 17

[29] Senate and House of Assembly of the Union of South Africa, “Public Safety Act, 1953,” March 23, 1953, 2, https://www.lac.org.na/laws/1953/og1750.pdf.