Introduction
El Salvador, a small Central American nation with a rich history of legal and political development, provides a fascinating case study for the interplay between national constitutional frameworks and international treaty obligations. The country’s treaty-making process is governed by a well-defined constitutional structure that reflects both its commitment to sovereignty and its engagement with the international community. This article explores El Salvador’s treaty-making mechanisms as outlined in its Constitution, examines whether it adheres to a monist or dualist approach in integrating international law into its domestic legal system, and assesses its relationship with the Vienna Convention on the Law of Treaties of 1969 (VCLT). Additionally, it considers how El Salvador’s legal framework and practices might inform other states in establishing treaty relations with the country. Through a detailed analysis of constitutional provisions, legislative processes, and international commitments, this article aims to provide a comprehensive understanding of El Salvador’s approach to treaty-making.
Constitutional Framework for Treaty-Making in El Salvador
The Constitution of El Salvador, enacted in 1983 and subsequently amended, serves as the supreme legal framework governing the nation’s political, legal, and international affairs. It establishes the separation of powers among the executive, legislative, and judicial branches, each of which plays a distinct role in the treaty-making process. Specific articles within the Constitution delineate the procedures and authorities responsible for entering into, ratifying, and implementing international treaties, reflecting El Salvador’s commitment to both national sovereignty and international cooperation.
Article 144 of the Constitution of El Salvador is the cornerstone for the country’s treaty-making authority. It vests the President of the Republic with the power to conduct foreign policy and to negotiate and sign treaties. This provision states that the President, as the head of state and government, is responsible for representing El Salvador in international relations, including entering into agreements with other states or international organizations. However, the President’s authority to bind the state through treaties is not absolute and must comply with constitutional checks and balances.
Article 168, which outlines the duties and powers of the President, further reinforces this by explicitly mentioning the President’s role in concluding treaties and submitting them for legislative approval. This requirement introduces a critical balance of power, as the Legislative Assembly must ratify treaties before they become legally binding on the state. According to Article 131, clause 7, the Legislative Assembly has the authority to ratify international treaties and conventions signed by the executive branch. This legislative oversight ensures that treaties align with national interests and constitutional principles, preventing unilateral executive action in matters of international commitment.
Moreover, Article 146 of the Constitution establishes important substantive limitations on the treaty-making power. It prohibits treaties that involve the cession of national territory, the alienation of state assets, or commitments that affect the constitutional structure of the government unless such treaties are approved under specific conditions, often requiring a supermajority vote in the Legislative Assembly or a referendum. This provision underscores the importance of safeguarding national sovereignty and constitutional integrity in the treaty-making process. Additionally, Article 149 specifies that treaties related to arbitration or judicial settlement must also be ratified by the Legislative Assembly, further emphasizing the legislature’s role in scrutinizing international agreements.
The treaty-making process in El Salvador, therefore, follows a clear procedural path: negotiation and signing by the President, followed by ratification by the Legislative Assembly. Once ratified, treaties are published in the Official Gazette (Diario Oficial) to become part of the legal system, as mandated by Article 151, which requires the publication of laws and treaties for their enforceability. This structured approach ensures transparency and accountability, aligning with democratic principles while allowing El Salvador to engage actively in international relations.
Monist or Dualist Approach: Integration of Treaties into National Law
A fundamental question in the study of international law is how states integrate their international treaty obligations into domestic legal systems, a distinction often framed as the monist versus dualist debate. Monist systems view international law and domestic law as part of a single legal order, with international treaties automatically becoming part of national law upon ratification. Dualist systems, conversely, treat international and domestic law as separate spheres, requiring specific legislative action to incorporate treaty obligations into national law.
El Salvador adheres to a predominantly monist approach, as evidenced by the provisions of its Constitution and judicial interpretations. Article 144 of the Constitution explicitly states that international treaties entered into by El Salvador in accordance with constitutional procedures form part of the national legal system. Furthermore, this article establishes a hierarchy of norms, declaring that treaties take precedence over conflicting domestic laws but are subordinate to the Constitution itself. This principle ensures that while international commitments are directly applicable within the domestic legal framework, they must conform to the supreme law of the land.
The monist orientation of El Salvador is further reinforced by judicial practice. The Constitutional Chamber of the Supreme Court of Justice has consistently ruled that ratified treaties have direct effect in the domestic legal order and can be invoked by individuals and entities before national courts. For instance, in cases involving human rights treaties, such as those related to the Inter-American System of Human Rights, Salvadoran courts have applied treaty provisions directly to protect individual rights, demonstrating the seamless integration of international law into national jurisprudence (Corte Suprema de Justicia, 2015).
However, elements of dualism can be observed in specific contexts, particularly concerning treaties that require implementing legislation to be fully operational. For example, treaties involving complex fiscal or administrative commitments may necessitate additional legislative measures to ensure compliance with treaty obligations. Article 168, clause 4, empowers the President to ensure the execution of treaties, often requiring coordination with the Legislative Assembly to enact enabling laws. This hybrid approach reflects a nuanced balance: while treaties generally have direct effect under the monist framework, certain practical considerations may trigger dualist mechanisms to ensure effective implementation.
The monist approach in El Salvador aligns with its historical commitment to international cooperation, particularly in the realm of human rights and regional integration. As a member of the Central American Integration System (SICA) and a signatory to numerous Inter-American treaties, El Salvador has prioritized the harmonization of international obligations with domestic law, facilitating compliance and fostering a legal environment conducive to international partnerships.
El Salvador and the Vienna Convention on the Law of Treaties (1969)
The Vienna Convention on the Law of Treaties (VCLT) of 1969 is widely regarded as the authoritative framework for the formation, interpretation, and termination of treaties under international law. Often described as the “treaty on treaties,” the VCLT codifies customary international law principles and provides procedural and substantive rules for treaty-making. As of the latest available data, El Salvador is not a party to the VCLT, having neither signed nor ratified the convention since its adoption on May 23, 1969, and entry into force on January 27, 1980 (United Nations Treaty Collection, 2023).
Despite not being a formal party to the VCLT, El Salvador’s treaty-making practices align with many of its principles, as these are rooted in customary international law, which binds all states regardless of treaty membership. For instance, El Salvador adheres to the VCLT’s core doctrines, such as pacta sunt servanda (treaties must be performed in good faith) and the rules on treaty interpretation, as reflected in Articles 26 and 31-33 of the VCLT. These principles are evident in El Salvador’s consistent fulfillment of treaty obligations and its engagement in diplomatic negotiations with other states.
The absence of formal accession to the VCLT does not appear to hinder El Salvador’s ability to enter into treaties or maintain international commitments. This is largely because many of the VCLT’s provisions, being codifications of customary international law, are recognized and applied globally, even by non-parties. However, El Salvador’s non-ratification may have implications for other states seeking to enter into treaties with it, particularly in terms of procedural clarity and dispute resolution mechanisms. States party to the VCLT may expect treaty negotiations to strictly adhere to its formalities, such as those concerning reservations (Articles 19-23) or termination (Articles 54-64). In the absence of El Salvador’s explicit commitment to the VCLT, other states must rely on customary international law and bilateral negotiations to ensure mutual understanding of treaty terms.
For countries aiming to establish treaty relations with El Salvador, awareness of its monist approach and constitutional requirements is critical. Given that El Salvador is not bound by the VCLT, states should prioritize clear documentation and mutual agreement on treaty processes during negotiations. Additionally, understanding the role of the Legislative Assembly in ratifying treaties is essential to anticipate potential delays or modifications during the approval process. Engaging with El Salvador through established diplomatic channels and referencing shared customary international law principles can facilitate smoother treaty-making, even in the absence of VCLT membership.
Treaty Implementation and Domestic Challenges
While El Salvador’s monist approach facilitates the integration of treaties into national law, practical challenges often arise during implementation. One significant issue is the capacity of domestic institutions to enforce treaty obligations, particularly in areas such as human rights, environmental protection, and trade agreements. For instance, while El Salvador has ratified numerous human rights treaties, including the American Convention on Human Rights, reports from international bodies like the Inter-American Commission on Human Rights (IACHR) have highlighted gaps in implementation, such as inadequate protection mechanisms for vulnerable populations (IACHR, 2019).
Another challenge lies in coordinating between different branches of government to ensure treaty compliance. Although treaties are directly applicable upon ratification, the executive and legislative branches must often collaborate to allocate resources, enact supporting legislation, or establish regulatory frameworks. Delays in these processes can hinder the effective fulfillment of international commitments, as seen in the slow implementation of certain trade agreements under the Central American Free Trade Agreement (CAFTA-DR), where bureaucratic inefficiencies have occasionally impeded progress (World Bank, 2021).
Judicial interpretation also plays a crucial role in treaty implementation. The Constitutional Chamber of the Supreme Court has the authority to review the compatibility of treaties with the Constitution under Article 235, ensuring that international commitments do not undermine fundamental rights or national sovereignty. While this oversight strengthens the rule of law, it can also lead to conflicts between international obligations and domestic priorities, requiring careful balancing by the judiciary.
Implications for International Cooperation
El Salvador’s treaty-making framework offers valuable insights for international cooperation, particularly for states in the Latin American region or those with similar constitutional systems. The country’s monist approach, combined with strict legislative oversight, demonstrates a commitment to balancing international engagement with national interests. Other states can draw lessons from El Salvador’s emphasis on transparency and democratic accountability in treaty ratification, ensuring that international agreements reflect broader societal consensus.
Moreover, El Salvador’s non-membership in the VCLT highlights the importance of customary international law in guiding treaty relations with non-party states. For countries negotiating treaties with El Salvador, flexibility and a focus on mutual agreement are key to addressing potential procedural ambiguities. Establishing bilateral frameworks or referencing regional agreements, such as those under the Organization of American States (OAS), can provide additional clarity and structure to treaty-making processes.
El Salvador’s active participation in regional and international organizations also underscores its role as a reliable partner in global governance. As a signatory to numerous treaties on human rights, trade, and environmental protection, El Salvador contributes to the collective advancement of international norms, even without formal adherence to the VCLT. This engagement suggests that the country’s treaty-making process, while rooted in specific constitutional mechanisms, aligns with broader principles of international law, facilitating cooperation with diverse partners.
Conclusion
El Salvador’s treaty-making process is a well-defined system grounded in its 1983 Constitution, which allocates distinct roles to the President and the Legislative Assembly in negotiating, signing, and ratifying international agreements. Articles 144, 146, 149, and 168 of the Constitution provide a robust framework that balances executive initiative with legislative oversight, ensuring that treaties reflect national interests while complying with international obligations. The country’s monist approach to international law, as articulated in Article 144, allows for the direct integration of treaties into the domestic legal system, although elements of dualism emerge in cases requiring implementing legislation.
Although El Salvador is not a party to the Vienna Convention on the Law of Treaties (1969), its treaty practices align with customary international law, enabling it to maintain effective relations with other states. For countries seeking to establish treaties with El Salvador, understanding its constitutional requirements, monist orientation, and reliance on customary principles is essential to navigate potential challenges and foster successful agreements. Despite domestic implementation issues, El Salvador remains a committed participant in the international legal order, offering a model of treaty-making that prioritizes sovereignty, democratic accountability, and global cooperation.
References
- Constitution of the Republic of El Salvador. (1983, as amended). Available through the Official Gazette and legislative archives of El Salvador.
- Corte Suprema de Justicia, Sala de lo Constitucional. (2015). Jurisprudence on the application of international human rights treaties in domestic law. San Salvador: Supreme Court of Justice.
- Inter-American Commission on Human Rights (IACHR). (2019). Annual Report on Human Rights in El Salvador. Washington, DC: Organization of American States.
- United Nations Treaty Collection. (2023). Status of the Vienna Convention on the Law of Treaties (1969). Retrieved from the United Nations Treaty Database.
- World Bank. (2021). Trade Facilitation and Implementation Challenges in Central America: A Case Study of CAFTA-DR. Washington, DC: World Bank Publications.
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