The U.S.-led military operation in Haiti has unfolded with minimal violence and few casualties so far. That factual proposition—which is necessarily subject to revision—has important ramifications under both U.S. constitutional law and international law. On the constitutional level, the avoidance of hostilities defused what was poised to become a serious confrontation between the President and the Congress. On the international level, doubts in some quarters about the legitimacy of a forcible intervention, although not entirely allayed, were somewhat quieted with the achievement of a negotiated solution, which enabled U.S. troops to bring about the return to power of President Aristide without having to shoot their way into Haiti.

The history of diplomacy has been a history of two competing structural conceptions: sovereignty, the barrier that limits state power, and community values, the collective power that overcomes that barrier. In ages past, when the fault line shifted between sovereignty and community, and cracks began to appear in the old legal edifice governing use of force by sovereign against sovereign or community against sovereign, the leading nations of the world gathered at Westphalia, or Vienna, or Versailles, or San Francisco to clarify the contours of the new order and to formulate, however loosely, a set of rules that would govern the use of force for generations to come—rules that recognized states as equals, rules that prohibited aggression, rules that permitted only defensive force. But not this time.

The failure of the U.S.-led embargo against Haiti had become notorious long before the time President Clinton decided to invade Haiti in order to restore President Aristide to office. The embargo had failed to unseat the junta and it had worked enormous hardship on the poor people of Haiti—so much so that thousands were willing to risk their lives on the high seas in makeshift vessels to seek asylum in the United States. This comment deals not with the legalities of the President’s action—which seem clear enough in view of the Security Council resolutions—but, rather, with the political consequences of the economic embargo in Haiti as well as elsewhere.

On the eve of the planned U.S. invasion of Haiti, responding to an appeal from the International Committee of the Red Cross to apply international humanitarian law, the United States stated that

In December 1990, after decades of dictatorship, the Haitian people overwhelmingly elected Jean-Bertrand Aristide as President. Every aspect of the election was monitored by international organizations and confirmed as “free and fair.” Within months, the army, an ill-trained force of some five thousand men, seized power, expelled Aristide, and brutally suppressed popular protest. The Organization of American States and the United Nations Security Council condemned the coup and its aftermath and ordered economic sanctions to dislodge the military. The sanctions failed. On July 31, 1994, the Security Council, acknowledging the gravity of the situation and recognizing that an “exceptional response” was required, passed Resolution 940, authorizing military action. The legality and wisdom of Resolution 940 has been criticized on the following grounds.

The United States intervention in Haiti concludes another chapter in the development of the constitutional common law of presidential power. The Haiti experience further confirms the constitutional authority of the President to deploy armed forces into hostile foreign environments, and to initiate the use of force without prior, specific congressional authorization. The facts of the situation limit the “precedent” to small-scale interventions where the risk of major military engagements, either initially or upon escalation, is negligible. The cases of largescale hostilities, like Korea, Vietnam and Iraq, are quite different in fact and perhaps also in law. But the Haiti “precedent,” coupled with the recent interventions in Grenada and Panama and innumerable examples earlier in history, strongly supports an unqualified presidential power to carry out small-scale military operations in support of foreign policy goals.