WIREDGOV

EXPERT COMMENT

Self-defence, terrorism and a state of conflict have all been invoked as justification for attacks on the high seas. None are convincing.

On Friday 3 October, the US government confirmed that it had destroyed another boat allegedly involved in drugs trafficking on the high seas off the coast of Venezuela – the fourth such US strike since September. The US stated that four individuals were killed. 

Interference with and certainly attacks against foreign-flag shipping in international waters by military force, are in principle unlawful, unless a legal justification – an exception to the rule – can be produced. In a letter to Congress of 4 September, US President Donald Trump attempted to do so by invoking the right to self-defence.

President Trump claims that tens of thousands of Americans have been killed because of drugs trafficking, and that attacks on boats like those of 3 October therefore constitute self-defence. However, Article 51 of the UN Charter on self-defence requires an ‘armed attack,’ in order to trigger the right to an armed response. 

A non-state actor, like a terror organization, can commit such an armed attack, if the consequences are the same as would result from an onslaught by regular military forces. The destruction of the World Trade Centre in September 2001, with the loss of over 3000 lives, would qualify. 

On the other hand, shipping drugs or supplying them to willing customers clearly does not constitute an armed attack. Self-defence is therefore not available as justification for the US strikes. Instead, drug smuggling is clearly a matter for border control and law enforcement, along with steps to reduce domestic demand.

Click here to continue reading the full version of this Expert Comment on the Chatham House website.