A Legal Perspective on Yemen's Attempted Transition from a Unitary to a Federal System of Government
| Author | Paul Williams, Tiffany Sommadossi, Ayat Mujais |
| Position | Co-founder and President, Public International Law & Policy Group (PILPG, headquartered in US); Rebecca Grazier Professor of Law and International Relations, American University, Washington, DC, US/Legal Consultant, PILPG (headquartered in US)/Research Associate, PILPG (headquartered in US) |
| Pages | 4-22 |
Paul Williams, Tiany Sommadossi and Ayat Mujais, ‘A Legal Perspective
on Yemen’s Attempted Transition from a Unitary to a Federal System
of Government’ (2017) 33(84) Utrecht Journal of International and
European Law pp. 4-22, DOI: https://doi.org/10.5334/ujiel.366
UTRECHT JOURNAL OF
INTERN
ATIONAL AND EUROPEAN LA
W
RESEARCH ARTICLE
A Legal Perspective on Yemen’s Attempted
Transition from a Unitary to a Federal System of
Government
Paul Williams*
, Tiany Sommadossi† and Ayat Mujais‡
Yemen’s 2013–2014 National Dialogue Conference paved the way for Yemen to transition from
a unitary to federal system of government. This is a common trajectory for States emerging
from conict as federalism oers the hope for greater democratic governance and inclusivity.
Nevertheless, there is a danger in assuming that there is an ideal federal model to emulate or
that federalism is itself a guaranteed remedy for political dysfunction and authoritarianism.
Transitioning to federalism is an arduous, expensive, and technically complicated process. Such
transitions can also renew conict if, prior to the drafting of the federal constitution, key
issues related to the design of the new system are not addressed or there is a lack of consensus
on how to address those issues. Indeed, this was the case in Yemen. Prior to drafting its new
federal constitution, Yemen struggled to reach sucient political consensus on three key issues:
(1) the formation of federal regions; (2) the structure of the new federal system; and (3) how
powers were to be distributed in the State, including over natural resources management. This
lack of consensus during the National Dialogue Conference resulted in the Constitution Drafting
Committee having the responsibility of making highly controversial political decisions about
Yemen’s future as a federal State. This article examines how Yemen’s transition to federalism
was undermined by the inability to reach sucient consensus on three key transition issues
prior to the drafting of the 2015 federal constitution.
Keywords: Federalism; Unitary; Yemen; Post-conict; Political transition; Decentralisation;
National Dialogue Conference; Constitution-drafting; Arab Spring
I. Introduction
In 2011, Yemen joined in the wave of Arab Spring revolutions sweeping across the Middle East and North
Africa. Mounting resistance to the regime of former President Ali Abdullah Saleh resulted in a negotiated
political settlement brokered by the Gulf Cooperation Council (GCC) with the support of the European
Union and the five permanent members of the United Nations Security Council. In November 2011, the
National Coalition (the General People’s Congress1 and its allies) and the National Council (the Joint Meeting
Parties2 and their partners) signed the Gulf Cooperation Initiative and the Implementation Mechanism
(together the Gulf Initiative).3 The Gulf Initiative signalled the beginning of Yemen’s transition period, but
* Co-founder and President, Public International Law & Policy Group (PILPG, headquartered in US); Rebecca Grazier Professor of Law
and International Relations, American University, Washington, DC, US.
†
Legal Consultant, PILPG (headquartered in US).
‡
Research Associate, PILPG (headquartered in US).
1 The General People’s Congress is the ruling party in Yemen, which under Saleh had privileged access to State resources. Its members
are not united by ideology, but represent a broad array of interest. ‘Islamists, former socialists, merchants, tribal leaders, moderates,
hard-line religious conservatives and some genuinely progressive reformers all exist side by side under the GPC umbrella’. Sarah
Phillips, Yemen and the Politics of Permanent Crisis (IISS 2011) 116–117.
2 ibid 105. The Joint Meeting Parties is an alliance of six opposition parties to the GPC. Its largest members come from the Islamist
Islah Party and the Yemeni Socialist Party.
3 Gulf Cooperation Council Initiative (UN Translation) (2011)
yemen_english.pdf> accessed 2 March 2017; Agreement on the Implementation Mechanism for the Transition Process in Yemen
in Accordance with the Initiative of the Gulf Cooperation Council (UN Translation) (2011) .un.org/yemen-
transition-mechanism2011> accessed 2 March 2017, see part I para 3(c).
Williams, Sommadossi and Mujais 5
focused on halting any further escalation of violence—not on reforming Yemen’s State structure.4 Envisioned
in the Gulf Initiative was a two-phased political transition that would conclude with a referendum vote on
a new Yemeni constitution and the inauguration of a President elected under the new constitution.5 After
much debate during the National Dialogue Conference, it was determined that Yemen would become a
federal State. Rather than unify Yemen, federalism helped unravel an already fragile peace. The decision to
restructure Yemen into a six-region federal State was highly politicised, and the attempt to draft a federal
constitution without sufficient political consensus on key transition issues further destabilised the country.
Countries like Yemen, marred by significant corruption, the over centralisation of power, and pernicious
social fragmentation envision a transition to federalism as a gateway to accountable government.6 The per-
ception is that federal States often have more inclusive and democratic governments, which in turn pro-
motes government accountability and greater public confidence in constitutionally guaranteed self-rule.7
Post-conflict unitary States in particular tend to view federalism as a pathway to peace, as implementing a
federal structure often produces an inclusive government that incorporates previously marginalised voices
into the political process. Such inclusion can provide added protections to minority groups and help to
ensure various ethnic groups are able to co-exist in a State structure that accommodates their differences.8
In Yemen, the hope was that the decentralisation of the State structure would help remedy the political
and social ailments amassed under former President Saleh—including corruption, poor social services, and
a lack of government accountability.9 Under Saleh, institutional development was inhibited for the purpose
of concentrating power in the presidency. Key government positions, especially in the military, security, and
police forces, were given to allies of the regime and members of the ruling party. Revenues from Yemen’s
natural resources were mostly diverted to those within Saleh’s patronage network, to solidify allegiance to
and reliance on the Saleh regime.
The danger of treating federalism as a guaranteed solution to political dysfunction, however, becomes
particularly apparent once States realise how technically complex a process it is to transition from a unitary
to federal system of government. There is no pure model of federalism to strive for. Unitary States become
federal by implementing a series of decisions ultimately related to how power is shared in the State, but
there is tremendous variation in how power can be diffused and thus, how federal States are structured.
Furthermore, implementing a transition to federalism becomes even more complicated when there is a lack
of consensus on highly political decisions around which durable peace is being built, as in Yemen.
The Public International Law & Policy Group (PILPG) was involved in the early stages of Yemen’s attempt to
transition to federalism. After the Gulf Initiative was signed in 2011, PILPG began providing legal assistance
to the Minister of Local Administration in preparation of Yemen’s transition to federalism. Specifically, PILPG
advised on policy planning, provided options on structuring the to-be-formed federal State, and presented
comparative practices of other countries’ transitions from unitary to federal systems. Eventually, PILPG was
involved in the provision of legal assistance to the United Nations—in particular to the UN Special Advisor
to Yemen—on matters related to the National Dialogue Conference and the status of southern Yemen in a
future federal State. PILPG also provided technical experts during the constitution-drafting process itself
and advisors during the Peace and National Partnership Agreement negotiations.
As lawyers present during the planning stages of Yemen’s transition to federalism, members of PILPG
observed exactly what it took to lay the groundwork for such a transition. Thus, this article is written with
an acute awareness of the tremendous accomplishment the Yemenis tried to achieve during their political
transition, as well as the steep hurdles they faced. The three issues discussed in this article represent just a
small portion of the choices that have to be made when transitioning from a unitary to federal system.
4 See Peter Salisbury, Yemen: Stemming the Rise of a Chaos State (Chatham House 2016) 15.
5 Agreement on the Implementation Mechanism (n 3) part IV para 22, 24.
6 When South Sudan seceded from Sudan in 2011, it considered federalism as a panacea for its governance problems, see Douglas H
Johnson, Federalism in the History of South Sudanese Political Thought (Rift Valley Institute 2014). Also, federalism has been touted
as a way to create greater political inclusivity and promote regional autonomy in Libya, see Karim Mezran and Mohamed Eljarh,
‘The Case for a New Federalism in Libya’ (2014) Atlantic Council Issue Brief
BriefFederalismInLibya_Hariri_5.pdf> accessed 2 March 2017.
7 See eg Nancy Bermeo, ‘A New Look at Federalism: The Import of Institutions’ (2002) 13 The Journal of Democracy 96, 97–98;
Alemante G Selassie, ‘Ethnic Federalism: Its Promise and Pitfalls for Africa’ (2003) 28 The Yale Journal of International Law 51,
57–58.
8 See eg Alfred C Stepan, ‘Federalism and Democracy: Beyond the U.S. Model’ (1999) 10 The Journal of Democracy 19, 19, 21–25;
Selassie (n 7) 99–101.
9 See Rafat Al-Akhali, ‘The Challenge of Federalism in Yemen’ (2014) Atlantic Council Issue Brief
images/publications/The_Challenge_of_Federalism_in_Yemen.pdf> accessed 2 March 2017.
To continue reading
Request your trial