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.

On January 28, 1995, representatives of the Government of the United States and of the Government of the Socialist Republic of Vietnam signed at Hanoi the Agreement Concerning the Settlement of Certain Property Claims and the related Agreement Concerning the Transfer of Diplomatic Properties.

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 International Law Commission of the United Nations held its forty-sixth session from May 2 to July 22, 1994, under the chairmanship of Professor Vladlin Vereshchetin of Russia.

The Commission had one of its most productive sessions. It completed a second draft of a statute for an international criminal court; completed its second reading on nonnavigational uses of international watercourses; completed, provisionally on first reading, a discrete portion of its work on liability for injurious consequences arising out of acts not prohibited by international law; considered aspects of state responsibility; began its second reading on the Draft Code of Crimes; and appointed Vaclav Mikulka and Alain Pellet, respectively, as special rapporteurs for the new topics of “State succession and its impact on the nationality of natural and legal persons” and “the law and practice relating to reservations to treaties.” It is the intention of the Commission to conclude its work on these two topics during the current term, i.e., by 1996.

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

At its 1994 session, the International Law Commission (ILC) completed the final adoption (“second reading”) of a complete set of thirty-three draft articles on the law of the non-navigational uses of international watercourses, together with a resolution on transboundary confined ground water. The Commission submitted the draft articles and the resolution to the General Assembly and recommended that a convention on international watercourses be elaborated by the Assembly or by an international conference of plenipotentiaries on the basis of the Commission’s draft.

As an offshoot of its work on a Code of Crimes against the Peace and Security of Mankind, the International Law Commission has for the past several years been working on the idea of an international criminal court. At its forty-fourth session in 1992, the Commission established a working group, which laid down basic parameters for a Draft Statute. The general approach of the working group was endorsed by the Commission and by the General Assembly in 1992. At its forty-fifth session in 1993, the Commission received the report of a working group containing a Draft Statute for an International Criminal Tribunal and, without formally adopting the text, referred it to the General Assembly for comment. The 1993 Draft Statute gave effect to the general approach adopted in 1992, but with a number of modifications and refinements and with much further detail. The General Assembly “took note with appreciation” of the Draft Statute and invited the Commission to continue its work “as a matter of priority,” with a view to elaborating a final draft, if possible, at its 1994 session.

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.