The ordering of a blockade of Venezuela for all sanctioned vessels has raised the thorny legal question of whether the US is de facto at war with Venezuela, and what this means in constitutional terms.
The varying nature of some statements from the US, ever since in September the first Venezuelan-linked vessel was sunk by US forces, has meant that the exact nature of the dispute between the US and Venezuela and the US remains murky.
The administration has moved thousands of troops and nearly a dozen warships – including a huge aircraft carrier – to the region. One of President Trump’s posts read that “For the theft of our Assets, and many other reasons, including Terrorism, Drug Smuggling, and Human Trafficking, the Venezuelan Regime has been designated a FOREIGN TERRORIST ORGANIZATION … Therefore, today, I am ordering A TOTAL AND COMPLETE BLOCKADE OF ALL SANCTIONED OIL TANKERS going into, and out of, Venezuela”.
American presidents notably have more foreign power than domestic, mainly because in the latter case the principle of states’ rights is vigorously defended by both individual states and the legal system.
But Trump’s “blockade” statement certainly stretches the boundary and marks a new test of presidential authority.
Meanwhile, in defiance of the proclaimed “blockade”, Venezuelan president Nicolas Maduro has ordered his navy to provide departing vessels with a warship escort. According to the New York Times these escort operations have already occurred on several departures for tankers bound for Asia. If true, this increases the possibility of a military-to-military encounter between the navies of two nation states.
The White House was reported to be “considering its response” to the Venezuelan escorts. An armed interdiction when the Venezuelan Navy was present could result in an exchange of fire, rather than a peaceful surrender. More importantly, it would be harder to deny that the two nations were both in fact and according to international law, at war – whether officially declared or not.
It has been argued that a naval blockade in itself constitutes an act of war under international law, but the US has not declared war on Venezuela, and the announcement although called a blockade by President Trump, in technical terms was not any such thing, as it applied only to certain vessels. The blockade is only partial, but the traditional definition would be that a blockade is binary; either it is or it isn’t. A partial blockade makes no more sense than the idea that there can be a partial breach in a ship’s hull or partial water ingress as a result.
In addition, merchant ships and tankers continue to trade to and from Venezuela, including at least one newly-arrived tanker that ought not to be allowed in, or out, if the US were enforcing even its own definition.
Blockades have traditionally been treated as permissible “instruments of war,” but only under strict conditions, said international law scholar Elena Chachko of UC Berkeley Law School. “There are serious questions on both the domestic law front and international law front”.
One obvious reason that the White House wants to call this conflict anything but a war is that a war would require congressional approval.
President Trump’s pressure campaign on Maduro has seen more than two dozen military strikes on vessels in the Pacific Ocean and Caribbean Sea near Venezuela, which have killed at least 90 people. Trump has also said that US land strikes on Venezuela could start soon.
The Trump administration has formally designated Venezuela’s Cartel de los Soles as a foreign terrorist organization, saying the group includes Maduro and other high-ranking officials. This gives the White House some leeway in its actions on the “narco-boats”, framing that action as a fight against criminality – albeit one that is outside US territory.
The seizure of the Skipper perhaps had a stronger international case, in that it could be framed as an act by the US against a tanker that was unflagged, uninsured, and in contravention of international maritime law.
The Democrats in Washington have been unambiguous in their views on the latest Trump actions. “Donald Trump does not have the authority to carry out his current plans to use military force in the Caribbean without authorization from Congress,” said New York Democratic Party Senator Chuck Schumer on Wednesday. “If he acts without congressional authorization, the Senate will move a bipartisan resolution to prevent the unauthorized use of force. Americans do not want more endless wars”.
On Wednesday, Secretary of War Pete Hegseth announced that another drug boat had been attacked and destroyed in the Eastern Pacific, killing four people.