Sinking Legality | The Hidden Dangers of Waging War on the High Seas

by Morgan Ellis

Author’s Preface

This article is based on publicly available information and accepted principles of international and military law. It does not constitute legal advice. The analysis reflects an interpretation of law and policy as of the date of publication. Because the operational facts of recent maritime interdictions remain classified or unknown, some conclusions are necessarily speculative. This discussion aims to inform and provoke thought, not to issue definitive legal rulings.

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The Tactical Temptation

Picture this: a go-fast skims across open water under cover of darkness. Nearby, a semi-submersible “narco-sub” glides just below the surface. From above, a military aircraft locks on and eliminates the target within seconds—tactically effective, but legally questionable.

International maritime law sharply distinguishes between territorial waters, exclusive economic zones, and the high seas, as well as between flagged and stateless vessels. Crossing those boundaries with missiles or gunfire in the name of counternarcotics can quickly turn a tactical success into a serious legal violation.

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The Legal Landscape: Why Location Matters

Territorial Sea (0–12 nautical miles)
Within this zone, a coastal nation exercises full sovereignty. It may enforce its criminal laws, including narcotics laws, but any use of force must remain necessary and proportionate under international law.

Contiguous Zone (12–24 nautical miles)
A state may act here to prevent or punish violations of its customs or immigration laws. Lawful “hot pursuit” may begin in this zone if the offense occurred in its jurisdiction, but it must be continuous and ends once the pursued vessel enters another state’s territorial waters.

Exclusive Economic Zone (EEZ, up to 200 nautical miles)
The EEZ grants economic rights, not full sovereignty. Criminal enforcement generally requires either statelessness, flag-state consent, or a lawful continuation of hot pursuit.

High Seas (beyond 200 nautical miles)
On the high seas, vessels fall under the exclusive jurisdiction of their flag state. Boarding or destroying a foreign-flagged vessel without consent or recognized legal authority—such as self-defense or piracy interdiction—is unlawful.

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Flagged vs. Stateless Vessels

A ship is considered “flagged” when it is lawfully registered under a nation’s laws. The physical presence of a flag is less important than its registration status. If a crew refuses to identify its flag state, makes conflicting claims, or if the claimed state disavows the vessel, it becomes stateless under Article 110 of UNCLOS.

Drug traffickers often exploit this loophole. U.S. law addresses such cases through the Maritime Drug Law Enforcement Act (MDLEA) and the Drug Trafficking Vessel Interdiction Act (DTVIA). These laws extend U.S. jurisdiction to stateless or consenting vessels, and criminalize the operation of stateless semi-subs on the high seas even without drugs on board.

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Force from the Air: What the Law Allows

UN Charter
Article 2(4) prohibits the threat or use of force against another state. Destroying a foreign-flagged vessel without legal justification may breach this fundamental rule unless authorized by self-defense or the UN Security Council.

UNCLOS Provisions

• Right of Visit (Art. 110): Permitted only in limited cases—piracy, slave trade, unauthorized broadcasting, or statelessness.
• Hot Pursuit (Art. 111): Must begin within a state’s territorial waters and continue uninterrupted.
• Exclusive Jurisdiction (Art. 92): The flag state retains control over enforcement.

Tribunals have repeatedly emphasized restraint. In M/V Saiga (No. 2), the International Tribunal for the Law of the Sea ruled that enforcement actions must be “reasonable and necessary.” Similarly, in Guyana v. Suriname, the Permanent Court of Arbitration found that threatening force during a law-enforcement operation could still be unlawful.

Duty to Rescue
Article 98 of UNCLOS obligates rescuing persons in distress at sea, even if they are smugglers. This principle is why professional forces prefer disabling shots over destruction.

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Can U.S. Military Aircraft Legally Do It?

Inside U.S. Waters
Yes—but with limits. Within U.S. territory or territorial seas, force may be used to compel compliance, provided it is necessary and proportionate. The Coast Guard leads maritime law enforcement, with the Department of Defense authorized to assist under Title 10 and relevant DoD instructions. When operating under Coast Guard control, military aircraft must follow Coast Guard use-of-force policies, which permit warning and disabling fire but prohibit outright destruction except under extraordinary circumstances.

On the High Seas

• Stateless Vessels: Boarding or seizure is lawful. Lethal force may only be used for immediate self-defense or to prevent imminent harm.
• Foreign-Flagged Vessels: Destruction without consent, treaty authority, or valid hot pursuit is an unlawful use of force that could trigger state responsibility and reparations.

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Narco-Subs: Legally Easier, But Not Free Targets

Semi-submersibles are usually stateless, which simplifies interdiction and prosecution. U.S. courts routinely proceed under MDLEA or DTVIA even if no narcotics are recovered. However, “stateless” does not equate to “open season.” The same international requirements—necessity, proportionality, and rescue obligations—remain in effect.

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The Ethical Dimension

The Utilitarian View: Some argue that destroying narco-vessels saves lives by reducing the drug trade’s human toll and deterring traffickers.
The Rule-of-Law View: Others counter that every life at sea deserves protection, and the destruction of vessels without due process undermines justice and evidence collection. Normalizing lethal “law-enforcement bombing” risks eroding global norms.

The Balanced Approach:
Disabling engines, boarding, rescuing crews, and prosecuting offenders uphold both law and morality. Combining air support with Coast Guard authority and international cooperation ensures operations remain lawful and defensible.

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Summary of Legal Boundaries

• Within U.S. Waters: Controlled, proportional force is permissible. Destruction is rare and heavily regulated.
• On the High Seas: Legal interdiction requires statelessness, valid pursuit, or flag-state consent. Even then, lethal force is restricted.
• Ethically: Upholding human life and international law outweighs expedient destruction. The real victory lies in restraint.

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Is the Order to Sink a Vessel Unlawful? UCMJ Implications

Destroying a drug-running vessel with a missile may sound efficient, but under U.S. military law and international treaties, such an order may be unlawful. Under the Uniform Code of Military Justice (UCMJ), service members must obey only lawful orders—and must refuse unlawful ones.

What Defines a Lawful Order

Under Article 92, a lawful order must be:

1. Issued by competent authority,
2. Related to military duty or discipline, and
3. Consistent with U.S. and international law.

Orders that violate the Constitution, federal law, or international obligations are inherently unlawful. This principle was established in United States v. Calley (1973), following the My Lai massacre, and reaffirmed in U.S. v. Kinder and U.S. v. Keenan.

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International Law Applies to U.S. Forces

Treaties such as the UN Charter and UNCLOS are part of U.S. law under the Constitution’s Supremacy Clause. Both prohibit using force against another state except in self-defense or with consent. Destroying a non-hostile, drug-running vessel without those conditions would violate international law and, by extension, the UCMJ.

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Application to Narco-Boat Scenarios

• Foreign-Flagged Vessel: Destruction without consent, hot pursuit, or imminent threat violates UNCLOS and UN Charter provisions—thus unlawful.
• Stateless Vessel: Boarding or seizure is lawful; destruction is permissible only if necessary and proportionate to prevent serious harm.
• Hostile Vessel: If a vessel demonstrates hostile intent, force may be justified under Standing Rules of Engagement (SROE) and the DoD Law of War Program.

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Law Enforcement vs. Armed Conflict

Drug traffickers are criminals, not combatants. Maritime drug enforcement falls under law enforcement, not armed conflict. Therefore, necessity, proportionality, and preservation of life govern every engagement. Destroying a non-threatening vessel crosses the line from law enforcement to unlawful force.

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UCMJ Consequences

If a commander issues an unlawful order and subordinates comply:

• The issuer may face charges of dereliction of duty or violation of the law of war.
• The executors may be charged under Articles 92, 118, or 119 (Disobedience, Murder, or Manslaughter).

Military law is clear: obedience is no defense for unlawful actions.

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Final Assessment

Unless a drug-smuggling vessel is stateless, presents an imminent threat, and destruction is both necessary and proportionate, an order to destroy it would be unlawful under the UCMJ. Both commanders and crews could face prosecution.

Ultimately, the difference between upholding law and sinking it lies in restraint—and in the courage to ask hard legal questions, even within the chain of command.

References for International Law Section

1. United Nations Convention on the Law of the Sea (UNCLOS), Art. 2 & 27, U.N. Treaty Series 1833 (1982). https://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf ↩
2. UNCLOS Art. 111 (Hot Pursuit). ibid. ↩
3. UNCLOS Art. 56 (EEZ rights and jurisdiction). ibid. ↩
4. UNCLOS Art. 92 (Exclusive Flag-State Jurisdiction). ibid. ↩ ↩²
5. UNCLOS Art. 91 (Nationality of Ships). ibid. ↩
6. UNCLOS Art. 110 (Right of Visit – statelessness exception). ibid. ↩
7. Maritime Drug Law Enforcement Act, 46 U.S.C. §§ 70501–70508. https://uscode.house.gov/view.xhtml?path=/prelim@title46/subtitle7/chapter705&edition=prelim ↩
8. Drug Trafficking Vessel Interdiction Act of 2008, 18 U.S.C. § 2285. https://www.govinfo.gov/app/details/USCODE-2023-title18/USCODE-2023-title18-partI-chap111-subchapC-sec2285 ↩ ↩²
9. Charter of the United Nations, Art. 2(4). https://www.un.org/en/about-us/un-charter/full-text ↩
10. M/V Saiga (No. 2), International Tribunal for the Law of the Sea (1999), ¶ 155–156. https://www.itlos.org/en/main/cases/list-of-cases/case-no-2/ ↩
11. Guyana v. Suriname, Arbitral Award, Permanent Court of Arbitration (2007), ¶ 445–450. https://pcacases.com/web/sendAttach/607 ↩ ↩²
12. UNCLOS Art. 98 (Duty to Render Assistance). supra note 1. ↩
13. DoD Instruction 3000.14, “Counterdrug and Counter-Transnational Organized Crime Activities,” DoD (2023). https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/300014p.pdf ↩
14. U.S. Coast Guard Use of Force Policy (2022); see also Department of Homeland Security, Maritime Law Enforcement Manual (COMDTINST M16247.1G, rev. 2019). https://www.uscg.mil ↩

References for Lawful Orders Section

1. Uniform Code of Military Justice, Article 92. https://uscode.house.gov/view.xhtml?req=(title:10%20section:892)
2. United Nations Charter, Article 2(4). https://www.un.org/en/about-us/un-charter/full-text
3. United Nations Convention on the Law of the Sea (UNCLOS), Articles 91–92, 98, 110–111. https://www.un.org/Depts/los/convention_agreements/texts/unclos/unclos_e.pdf
4. DoD Directive 2311.01E, Law of War Program (2023). https://ogc.osd.mil/LawofWarProgram/
5. DoD Standing Rules of Engagement (SROE), CJCSI 3121.01B (current version restricted; summarized in DoD Law of War Manual §1.11.2).
6. United States v. Calley, 22 U.S.C.M.A. 534 (1973).
7. United States v. Kinder, 14 C.M.R. 742 (1954).
8. United States v. Keenan, 39 C.M.R. 108 (1969).

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