The joint session of Pakistan’s parliament, from 6th to 10th April, 2015, culminated into a Resolution. Point 12 of the Resolution expressed the parliament’s desire that the Government should take steps to move to the UN Security Council (UNSC). What legal consequences such an expression can ensue, is the moot point of the instant write-up. Although many authors, in their own ways and from their own perspectives, have tried to unlock the dimensions of Yemen crisis, the scope for examining its legal aspects remains wide open.
Constitutional Law and Pakistan’s Foreign Policy
In the first place, the expression of people’s will through their elected representatives in the form of a Resolution emanating from the joint sitting of the Parliament needs to be examined in the light of the Constitution of Pakistan (hereinafter Constitution) to fathom its legal consequences. The following points are worth-noting in this regard:
First, the Constitution uses two sets of words while referring to the foreign affairs of Pakistan. It uses the expression ‘external’ affairs for the relations between Pakistan and other countries. This expression first occurs in the ‘Fundamental Rights’ chapter followed by its use in the Federal Legislative List while discussing the areas of legislative competence of the federal legislature, and finally, at the places where there is a reference to the ‘external aggression’ in the chapters related to the obligations owed by the federation to the provinces, emergency provisions and armed forces. On the other hand, it uses the word ‘foreign’ in a different context especially while referring to economic-related terms like ‘foreign aid’ and ‘foreign exchange’. The modern terminology of ‘foreign policy’ has been used only once while describing the obligation of the Prime Minister to the President in keeping the latter aware of the things related to ‘foreign policy’.
Secondly, the subject of foreign policy falls in the domain of the Foreign Affairs Division controlled by the Ministry of Foreign Affairs (MOFA). The MOFA functions under a minister who may belong to either of the two houses of the Parliament; hence, the legislature and the executive, in the domain of foreign policy, converge at this point. In this situation, where does a resolution passed by the Parliament will be placed? What is the legality of such a resolution? What is the nature of the legal obligation flowing from it for the state of Pakistan: binding/ non-binding/salutary/declaratory? The resolutions passed by the legislature have been dealt in detail in the Rules of Business 1973 and create an obligation on the Federal Government to process it ‘for action’.
International Law & the Yemen Crisis
The aforementioned conspectus of the constitutional provisions related to the foreign policy is to be read with point 12 of the Resolution, which desires the Federal Government to initiate steps to move the UNSC. In order to move the UNSC, the applicable framework has to be invariably the applicable international law. In this backdrop, it becomes obvious that an objective study of Yemen Crisis is inevitable in order to examine the fitness of the subject matter to be moved before the Security Council. This premise leads to examine the crisis on two counts:
A. Categorization of the Conflict
First is the issue of categorization of the conflict, which has become almost axiomatic now to ascertain the applicable international law. For a state or a non-state party actually involved in a situation, it may be difficult to categorize the nature of conflict as the interests of the parties involved may confound their objective analyses; but, for a country not actually involved in a situation of conflict, and just weighing its options, the test may be applied with some level of objectivity. Quintessentially, the test of categorization hinges on the issue of deciding whether a given situation is an international, or a non-international, armed conflict. Besides, it also has to be gauged that what is the state of the administrative international organizations, like the UN, in that situation. In case of Yemen, the qualifications of an international armed conflict are obviously absent, albeit at the moment, as the crisis is primarily between an ousted government and a non-state group. The conflict does not, at present, involve international borders. Third-party involvement like of Saudi Arabia and the Gulf Cooperation Council (GCC) has, however, its own dynamics. Besides, the coalition gathered by this third party may escalate the category of the crisis if more actors join in, especially through some regional or international organization. On the other hand, the crisis better qualifies today as a non-international armed conflict. The applicability of non-international armed conflict excludes it from the applicability of the Geneva Conventions of 1949, but it does attract the applicability of Common Article 3 of the Conventions and Protocol II, which essentially means that besides protection of injured and vulnerable, the means and methods of warfare remain regulated by the law of war. From Pakistan’s perspective, the categorization of the crisis as a non-international armed conflict substantially dilutes grounds of justifications for indulging itself into action or from taking sides with any of the fighting factions.
B. Humanitarian Intervention
Second issue relates to the applicability of Article 51 of the UN Charter. The law of self-defence, individual or collective, has been a casualty of selective interpretations by the interested parties. For example, the following statement by the Group of 77 (now actually 134 countries) in its Declaration in 2000 stated:
“We stress the need to maintain a clear distinction between humanitarian assistance and other activities of the United Nations. We reject the so-called “right” of humanitarian intervention, which has no legal basis in the United Nations Charter or in the general principles of international law.”
The Declaration also called upon the international community to strictly follow the Guiding Principles of Humanitarian Assistance passed by the UN General Assembly. While Pakistan is a member of the Group of 77, it has also itself remained a victim of unauthorized humanitarian intervention in 1971 by India. The analysis of the facts of the Yemen crisis shows that the Saudi Arabia and the Gulf Cooperation Council (GCC) have tried to capitalize on the letter which President Hadi has written to the UN Secretary General wherein he has invited the humanitarian intervention. It may be noted that the UNSC had already passed as many as six resolutions under Chapter VII on Yemen since 2011; therefore, the letter to the Security Council was not out of the blue, but was part of the diplomatic efforts on the subject. The latest Security Council Resolution 2016 (2015) that was passed on 14th April 2015 is a Chapter VII Resolution and has placed arms embargo on the Houthis. The Resolution has taken further measures in which it has frozen assets and has also inflicted economic sanctions to Houthi leaders. The situation is obviously not simple and the passage of the latest resolution may, ultimately, be a founding step towards later collective authorized humanitarian intervention.
The only constant in the world is change, but this time, the change is also changing and the pace of change is faster than the motion of conventional historical events. In the backdrop of vacillating positions of global players where the US-Iran nuclear deal has excited the soul of international politics to change course, there is a likelihood that the rules of the game may also change: the international law may be reinterpreted, or perhaps, rewritten.