The Jus ad Bellum Implications of the Potential Resignation of Yemen's President

All eyes are on Egypt for the moment, and for good reason.  But let's not neglect the news out of Yemen, especially in light of its potential ramifications for future U.S. counterterrorism operations there.  Unlike Egypt, after all, the United States reportedly has used military force in Yemen in recent years in relation to AQAP, and there is ample reason to believe that AQAP will continue to pose a threat out of Yemen territory for the near term.  All of which is quite significant because the Times reports today that President Saleh has announced he will step down from the presidency of Yemen after a 32-year run rather than seek reelection in 2013, and that his son also would not participate in that election.  Does this development endanger the legal framework that presumably underpins those operations with respect to UN Charter issues (i.e., setting aside IHL/IHRL/domestic-law issues regarding specific strikes)?  For the time being, a strong case can be made that U.S. airstrikes against al Qaeda targets in Yemen do not violate Article 2(4) of the UN Charter because the government of Yemen has consented to those strikes.  If correct, this eliminates the need to make arguments about the applicability of Article 51 self-defense rights in response to a potential Article 2(4) objection.   Should the Saleh administration be followed by a less cooperative regime, however, consent might be withdrawn, leaving the jus ad bellum issue to stand-or-fall on the strength of the Article 51 argument in the event that the U.S. wishes to continue to use force in Yemen territory.  Having highlighted this issue, let me now argue that it is too soon to judge how it will play out. First, the election is still two years away, and as the Times report notes Saleh has promised not to seek reelection before only to change his mind later.  He might well do the same in this instance, should the current wave of popular discontent die down sufficiently in the future, or his son might decide to seek election notwithstanding his father's statement.  Second, it is not obvious that a successor administration would be unwilling to permit the continued use of force by the United States on an episodic basis against AQAP targets.  The prospect of losing consent no doubt already informs the strategic calculus through which decisions relating to uses of force in Yemen surely pass, and it will obviously be important to bear this consideration in mind with respect to further uses of force between now and the 2013 election.  We might manage this issue well, we might manage it poorly, or it might turn out to be irrelevant how we try to manage it.  It is just too soon to say. Third, it may be that the alternative self-defense argument will be relatively strong in 2013, in which case the loss of the consent argument might matter less.  The self-defense argument is strong today, in my view, and on current trends there is little reason to expect AQAP to become less of a threat over time.  Of course, counterterrorism efforts between now and 2013 might sufficiently degrade AQAP to the point that a self-defense argument focused on it might no longer be persuasive, but in that case the U.S. might in any event have relatively little interest in using force in Yemen in the first place. Let's hope so.