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This question is prompted by comments on my previous question about the relevance of armed professionals on shipping alters their legal status:

It's not legal for terrorists to attack a merchant ship in transit that isn't attacking or threatening a country, whether or not the ship has some "armed professionals" on it.

I didn't say the government of Yemen would have no right to interfere with the ship.

I get this to mean that an important consideration in determining the legality of attacks is the statehood or otherwise of the entity that carried out the attacks. The accepted criteria of statehood were laid down in the Montevideo Convention in 1933, which provided that a state must possess a permanent population, a defined territory, a government, and the capacity to conduct international relations.

There is a permanent population under the actual control of the Houthis, including the Yemeni capital Sanaa. There are maps of their control, which line up quite well with state borders that were internationally recognised until until quite recently. They have people working in roles that could be called a government, like president and Supreme Political Council and General Corporation for Textile Industry. I THINK they are recognised by Iran, though I cannot find any any good confirmation of that, and are able to communicate and have an influence internationally. I am fairly sure that they themselves consider that they are the legitimate rules of North Yemen at least. The US and much of the rest of the world considered them a terrorist group and recognise the Presidential Leadership Council as legitimate rules of all Yemen.

What effect do any of these facts have on the legality of the attacks on shipping in the Red Sea?

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Without international recognition, the Houthis are not a state

Unless many states recognize a state, the Houthis are not a state. The internationally recognized state that has the borders where the Houthis claim power is Yemen. A single state that recognizes them as legitimate does not make them the internationally recognized government. Yemen has a chair in the UN, but the Houthis do not. That is the most telltale sign which of the two is deemed to be recognized internationally.

The fact that the country that is recognized to have coastal policing power in that area of the Red Sea is Yemen attacks of the Houthis: they are not recognized as a state, so they are not allowed to police the international waters. Yemen has that power, the Houthis do not.

Further, the attacks of the Houthis on ships that are not engaged in a war the Houthis have declared, make them either a state that just commited an act of war on the country where the ship is flagged (and which is about the same as a declaration of war) or terrorists. Since they are not a state in the first place (see recognition) above, the Houthis are terrorists.

Terrorists have no legal grounds or capacity to attack merchant ships.

The attacks are not even in Yemen Territorial waters!

As of January 16, only 5 out of the 37 international maritime incidents happened in the Yemeni territorial waters (12 miles zone). Most occurred within the Exclusive Economic Zone, but international shipping is not in the purview of the EEZ. The EEZ is about fishing, mining, and oil drilling.

As such, not even a legitimate government would have had the right to police any ship out there.

The Attacks wouldn't even be legal if the Houthis were a state

A Panama-flagged ship is a ship that is part of Panama. To legally allow a state to attack a Panama-flagged ship under the rules of war, there needs to be a war with Panama. There is no war against Panama so Panama is a neutral country.

The only way to legally sink a neutral merchant ship would be to stop and board it, find contraband destined for a war enemy, and then seize the ship to sink it. A missile strike or submarine attack doesn't constitute that.

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  • Does the principal that a state is only a state if many other states recognize it as such apply from the point of view of the few states that do recognize a poorly-recognized would-be state? I.e. would Houthi actions in the Red Sea be legal state actions under international law as interpreted by a recognizing country like Iran? Or does Iran still have to interpret international law as if the states only it recognizes are not actually states?
    – interfect
    Commented Feb 17 at 14:00
  • You are shifting your argument to politics, which has no place here. Law of the sea was signed by Yemen, the UN seat is with Yemen and the Houthis are not Yemen. That is the whole international situation that frames the legal side.
    – Trish
    Commented Feb 17 at 14:04
  • How exactly the operation of the law varies with the opinions of various states is something I see as a legal question, not a political one. Is the question of whether something is a state for international law purposes a different question than whether your country individually recognizes them as a state for recognition purposes? Maybe this wants to be its own question...
    – interfect
    Commented Feb 17 at 14:11
  • @Trish The UN Convention on the Law of the Sea was signed by North Yemen, a state with much the same borders as the Houthi controlled areas.
    – User65535
    Commented Feb 17 at 15:03
  • @User65535 The Yemen Arab Republic signed the treaty. In 1990, the Yemen Arab Republic and People's Democratic Republic of Yemen merged and became the Republic of Yemen., which by inheritance became a member of the treaty. The Houthis are not the Yemen Arab Republic, which ceased to exist in 1990.
    – Trish
    Commented Feb 17 at 16:41
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No one has the legal right to attack neutral merchant ships

If done by a state actor, this is a war crime. If done by a non-state actor, it’s just a crime.

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