From Crime to Constitutional Crisis: The Legality of El Salvador’s State of Exception

From Crime to Constitutional Crisis: The Legality of El Salvador’s State of Exception

Journal: The Emory International Law Review, which enjoys an international reputation as a leader in international legal scholarship. EILR publishes articles and essays submitted by professionals and students from around the world on a vast array of topics ranging from human rights to international intellectual property issues. More on EILR can be found here.

Date of Publication: 2026

Author: Alex Jacobs, JD candidate (3L) at Emory Law School.

The article can be downloaded from here, and a PDF of the article can be found here.

Photo by Esaú Fuentes González on Unsplash.

Summary: This article examines El Salvador's prolonged State of Exception through the lens of constitutional and international law. It argues that while the government's emergency measures may have been legally justifiable when first adopted in March 2022 in response to extraordinary levels of gang violence, the continued renewal of those powers after dramatic improvements in public security has transformed a temporary emergency into a constitutional problem. The author evaluates the State of Exception under El Salvador's Constitution, the American Convention on Human Rights, the International Covenant on Civil and Political Rights, and related international human rights standards, concluding that the ongoing suspension of constitutional guarantees can no longer be justified under either domestic or international law. More broadly, the article explores the tension between restoring public security and preserving constitutional governance, warning that successful emergency measures can themselves become a source of democratic erosion when they outlast the circumstances that originally justified them.

Why ISSE Is Including This Article:

This article addresses a central questions at the heart of ISSE's research: not simply when governments may invoke extraordinary powers, but when those powers must end. The author distinguishes between the legality of declaring an emergency and the legality of continuously renewing emergency authorities after the original crisis has substantially subsided. The article highlights an often-overlooked challenge in the study of states of exception: successful emergency measures can become increasingly difficult for governments to relinquish, even after the conditions that justified their adoption have changed. For scholars of emergency governance, El Salvador provides an important contemporary case study in the constitutional risks posed by the normalization and institutionalization of exceptional authority.