The Use and Abuse of International Law in Central American Constitutional State Building

Carlos Arturo Villagrán Sandoval

Melbourne Law School & Universidad Rafael Landivar

Central America has a long history of using foreign intervention and international law for state-building and constitution-making. In many ways, foreign intervention has been a catalyst in creating a constitutional culture in which international law supports and legitimates state action and aids in avoiding constitutional disruption. 

This culture goes back to the 19th century, but concretely to 1907. At this time, Central America was a volatile region, with many states experiencing bloody revolutions, military coups, and wars among each other. It was through the intervention of the United States – with an eye in securing peace to protect its main interest in the region, the Panama Canal – that states were forced to use international law and international verification missions to legitimize their state-building, to hold free and fair elections, and to avoid constitutional disruption. Central American states have since ratified international treaties pledging that they will not recognize unconstitutional revolutions. Some states have also entrenched prohibitions on the re-election of leaders. In the words of the Inter American Commission of Human Rights, these actions have created a constitutional custom (file 10.804 of 1993) still present in the region. 

However, nowadays, international law has been used for other purposes. It has been used, ironically, to bypass the entrenched culture and constitutional custom limiting the reelection of presidents. With the (mis)use of international human rights language and under the jurisdiction of international human rights bodies, caudillos (strong populist leaders) have interpreted the constitutional prohibition on reelection and similar norms as contrary to international law, leaving them without application.

This blog post focuses on the uses and abuses of international law that have taken place in Central America in recent decades.

Use in Fighting Corruption

Following the subregion’s transition to peace in the 1980s, after decades of civil war, Central American states were in a newfound period of state-building. States enacted new constitutions (Honduras in 1982, El Salvador in 1983, Guatemala in 1986 and Nicaragua in 1989) and signed peace accords with guerrilla groups, putting an end to the subregion’s civil wars (Nicaragua in 1988, El Salvador 1992 and Guatemala between 1994 and 1996). The states of the region also launched a new integration system – a supranational political and economic governance regime based on social justice, development, and political accountability, with the objective of creating a single market and bringing peace, security and cooperation among Central American countries.

Many of the signed instruments and constitutions recognized the region’s challenges with corruption. They acknowledged that corruption affects governance and electoral integrity. The instruments also recognized state limits in dealing with corruption and solicited international assistance. The first result of these efforts came in Guatemala in 2007, with the creation of the International Commission against Impunity in Guatemala, or ‘CICIG’, in collaboration with the United Nations. In 2015, the CICIG uncovered a major tariff fraud case involving the President, Vice-President, high-ranking officials and private companies, which led to the resignation and arrest of these authorities.

In 2016, after uncovering a major corruption ring in the social security office, Honduras followed Guatemala’s example. This led to the creation of the Mission to Support the Fight against Corruption and Impunity in Honduras or ‘MACCIH’. This time, the mission was created in collaboration with the Organization of American States. As with CICIG, the MACCIH supported local authorities to uncover and prosecute a series of cases involving officials in Congress and the President’s wife. 

However, both international missions were victims of their own success. Backlash from influential local groups affected by the corruption investigations launched strong media campaigns. Furthermore, the families of the Presidents of both countries were implicated in corruption issues, which led to backlash by part of the governments in order to terminate these missions. Both missions were cancelled by 2020.

In 2022 in Honduras, under the leadership of the newly elected president Xiomara Castro, another attempt to establish a new international corruption mission is in the works. This new mission would be created with the UN, copying the Guatemalan model.

Abuse in Bypassing Constitutional Prohibitions

Since 2000, Central America has continued to experience democratic backsliding. Caudillos have sought to continue in power by various means. Their tactics have led to the abuse of international human rights language for their benefit. This trend started in Costa Rica in 2003 with the Constitutional Chamber -Sala Cuarta- allowing the reelection of President Arias, even after a previous court refused to do so in 2000. The Sala Cuarta held that the constitutional prohibition on the reelection of the president was in conflict with the right to be elected enshrined in the Universal Declaration on Human Rights and the American Convention. The Sala Cuarta thus allowed the reelection from there on. 

In 2009, the Constitutional Chamber of the Supreme Court of Nicaragua (File 602-09, judgment No.504 of 19 October 2009) resolved that President Ortega, as well as many other Nicaraguans, were allowed to seek reelection, despite prohibitions set out in article 147 of the Constitution. In permitting President Ortega’s reelection, the Chamber quoted from Spanish authors who borrowed from the German concept Verfassungswidrige Verfassungnormen to declare unconstitutional certain provisions of the constitution due to their conflict with other constitutional norms of higher value to society, as well as from international human rights instruments including the American Declaration on Human Rights and the American Convention. Based on these sources, the Nicaraguan Court concluded that the Constituent Assembly restricted the sovereignty of the Nicaraguan people by prohibiting reelection. This decision has allowed Ortega to retain power until today.

In 2015, President Juan Orlando Hernandez followed suit in Honduras. On April 22, 2015, the Constitutional Chamber of the Honduran Supreme Court (judgment no. RI-1343-14) declared invalid articles 42.5 and 239 of the Honduran Constitution which prohibit presidential reelection and article 330 of the Criminal Code, which criminalized anyone who promoted such reelection. The Honduran Chamber interpreted that international treaties ratified by Honduras were part of the Constitutional Block, meaning that these instruments are seen as part of the Constitution. The court has also declared binding the jurisprudence of international adjudicatory bodies on the topic of human rights. In essence, the court is selectively using the jurisprudence of the Inter American Court of Human Rights to interpret the right to reelection as superior to the express prohibitions contained within the Constitution.

El Salvador has continued with this trend. The Constitution of El Salvador prohibits reelection of its executive in many articles of the Constitution, including articles 75.4, 88, 131.16, 152.6, 154 and 248.3. After the election of President Nayib Bukele and his party gaining a legislative majority in 2021, a new Constitutional Chamber of the Supreme Court was appointed. On 3 September 2021, the Constitutional Chamber (judgment 1-2021) reversed previous case law maintaining the prohibition. Using article 23 of the American Convention on Human Rights, the Chamber held that the constitutional prohibition is vaguely written, and concluded that its intention is not to limit reelection, but is instead intended to ensure the alternation of presidents and leadership options for the people. With this green light, Bukele has just announced the launch of his reelection campaign.

In Guatemala a new legal maneuver has been developed to bypass constitutional prohibitions. This comes in the form of the recognition of responsibility for violation of international human rights norms on the part of the State. In 2019, the Guatemalan Constitutional Court upheld the constitutional prohibition in article 186 banning descendants of a leader of a coup d’etat who altered the constitutional order from contesting elections. In 2019, Zury Rios, the daughter of General Efrain Rios Mont, who obtained power through a coup in 1982 (see summary here p.160) filed a complaint against Guatemala at the Inter American Human Rights Commission alleging the violation of her political rights. In April 2022, the Inter American Commission published a statement that Guatemala had accepted international responsibility for the violation of her rights. Referencing the American Convention on Human Rights and jurisprudence of the Inter American Court, Guatemala’s Solicitor General recognized the violation of these international instruments. The Solicitor General also endorsed a 2003 judgment of the Constitutional Court to allow Rios Mont to run for the presidency based on human rights grounds, even though reelection is expressly prohibited by the Constitution and despite the fact that the 2003 judgment was later overturned. The effects of the Solicitor General’s actions remain to be seen and may not be upheld by the courts. Even so, Zury Rios’ campaign for presidency in 2024 is well underway.

This post has described the uses and abuses of international law in what may seem like a small and distinctive subregion in the world. However, these actions bring to light urgent issues such as the limits of sovereignty, interaction of treaties with national law, effects of empire, and the conduct of courts and other extra constitutional actors in state institutions, which go well beyond Central America.

Carlos Arturo Villagrán Sandoval holds a Ph.D. from the University of Melbourne, Expert Affiliate at the Constitutional Transformation Network at Melbourne Law School and Associate Researcher at Universidad Rafael Landivar

Suggested Citation: Carlos Arturo Villagrán Sandoval, ‘The Use and Abuse of International Law in Central American Constitutional State Building’ IACL-AIDC Blog (29 September 2022) https://blog-iacl-aidc.org/central-america/2022/9/29/the-use-and-abuse-of-international-law-in-central-american-constitutional-state-building.