Will the U.S. be forced to return 'Gitmo' to Cuba?

Detainees held at Guantanamo Bay

Report by the Council on Hemispheric Affairs:

“The grant of the foregoing Article [regarding the leasing of Guantanamo] shall include the right to use and occupy the waters adjacent to said areas of land and water, and to improve and deepen the entrances thereto and the anchorages therein, and generally to do any and all things necessary to fit the premises for use as coaling or naval stations only, and for no other purpose.” Article II of the Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval stations; February 23, 1903.

Washington may be Losing its Right, let Alone its Political Ability to Maintain its Control over Guantanamo
The Bush administration has made several declarations expressing its willingness to help Cuba make a smooth transition to a Washington-approved “democracy,” achieved through a “soft landing.” This transition would take effect upon Fidel Castro’s death or complete incapacitation (taking note of the Cuba leader’s botched operation and subsequent reports of his fragile health). However, one complex issue that is only now being raised is the judicial basis for the U.S.-occupied naval base at Guantanamo.

The facility, which fell under a U.S. leasehold for more than a century has again returned to the headlines with the confession made by Khalid Sheikh Mohammed, that he was the Al-Qaeda operative in command of the September 11 2001 operations. He admitted to the 9/11 terror attacks during a U.S. military hearing on Saturday, according to an edited transcript of the hearing released by the Pentagon on Wednesday. But even more ominous is the concern being voiced by at least one analyst close to the Bush White House that as result of several statements by relatively pro-U.S. Latin American leaders who stressed to President Bush their insistence that the U.S. should recognize the full sovereignty of Latin America nations, Washington could be faced with mounting demands throughout the hemisphere that Guantanamo – the symbol of 19th century gunboat diplomacy practiced by the Washington during the period– be returned to Cuba.

The Guantanamo Bay Naval Base, located on the southeastern tip of Cuba, reached a peak of notoriety after it was discovered that, in the post-September 11 world, it was being used as a detention center and torture facility. Individuals suspected of being terrorists were detained at Guantanamo, and were subjected to various forms of harsh treatment. Many detainees were imprisoned for years and were denied the protection granted by habeas corpu, if their alleged crimes had been committed in the U.S. In the beginning of 2007, with a change of regime in Cuba seemingly at least possible in the next year or so, it would be useful to question the continued presence of the American military on the island, and whether or not it would be wiser for Washington to systematically consider the orderly reversion of Guantanamo Bay to the present – or successor – government in Havana. It is important to keep in mind that the U.S. has never questioned that residual sovereignty over the bay always has rested with Cuba. In fact, State Department legal experts are reviewing their international law books in the now almost certainty that a serious movement arises throughout the hemisphere questioning the U.S.’s legitimacy in occupying Guantanamo under the present arrangement and whether or not it has been exhausted by the passage of time and the dramatic change of circumstances. At the very least, now we have a sharply anomalous situation where Cuba is “paid” a trifling annual rent from its most lethal enemy to occupy the facility in the Cuban nation.

Attention also should be given to the controversial speech given at the recent 43rd Munich Conference on Security Policy, by Russian President Vladimir Putin: “Incidentally, Russia – we – are constantly being taught about democracy. But for some reason those who teach us do not want to learn themselves.” This was a barely concealed –if not a nominally indirect – message targeted at the Bush administration. A similar statement could be made about Washington’s self-glorification of its respect of freedom, sovereignty and international law, while it, ahistorically, holds on to a colonial relic like Guantanamo instead of returning it to Cuba. Around the globe, in the aftermath of World War II, there has been a steady devolution of former colonies and other dependencies to local control – the decolonization of Africa in the 1950s and 1960s; Britain’s return of Hong Kong to the People’s Republic of China in 1997; even the reversion of authority over the Panama Canal to Panama in 1977. Guantanamo is one of those few territories that continue to exist in the world from a time when imperial societies imposed their will on weaker states.

The Invalidity of the Cuban-American Treaty on Guantanamo Bay
The Cuban government could use the 1969 Vienna Convention on the Law of Treaties (specifically articles 60 and 62) and the section dealing with the rebus sic stantibus clause (which is used in reference on Article 62 of the Vienna Convention) to make a cogent case for the devolution of its territory back to the Cuban nation. The fundamental change of circumstances, otherwise known as the clausula rebus sic stantibus, can be invoked to challenge the validity of treaties and lead to their termination. A 2003 lecture given by Dr. Alfred de Zayas, a professor of international law at the Geneva School for Diplomacy, explains that it could be argued that the lease of a military base in a foreign country is conditioned on the friendly relations between those states, and that such pacts are terminated when a new sovereign government takes office that is fundamentally opposed to the alliance. Similarly the physical presence by treaty right of a hostile nation on Cuban territory is contrary to modern conceptions of sovereignty and of the sovereign equality of States. Indeed, as Dr. de Zayas argues in his lecture, it is an anomaly that the country that has imposed an embargo on Cuba for more than 40 years insists that it has a right to remain on its sovereign territory.

Moreover, the Guantanamo lease is right now 104 years old, which makes it only logical that it should be due for reconsideration by both governments. A 1967 article entitled “International Law and Guantanamo” (by Gary L. Maris in The Journal of Politics, Vol.29, No. 2, pp.263) declared that the legal term “lease” was not a disguise for the actual cession of Guantanamo to the U.S., but a relinquishing of jurisdiction over the area with the legal possibility of eventual recovery if the parties so desired or if conditions of the lease were not met. This makes it all the more necessary for Washington and Havana to discuss the Bay’s future.

Dr. de Zayas also explained that according to article 60 of the Vienna Convention, a treaty is voidable by virtue of a material breach of its provisions. According to the terms of articles 1 and 2 of the 1903 Lease Agreement, the use of the Guantánamo Bay territory was limited to coaling and naval purposes only, “and for no other purpose.” Hence, the repeated use of the territory as an internment camp for Haitian and Cuban refugees or as a detention and interrogation centre and prisoner of war camp and torture center is incompatible with the purpose of the treaty. Such actions by the U.S. would arguably bring about a material breach of the agreement justifying unilateral termination by Cuba in accordance with article 60 of the Vienna Convention.

The U.S. has also broken the agreement through another, though perhaps a less forceful, issue: the presence of commercial enterprises at Guantánamo, including a McDonalds. This constitutes a breach of the terms of article III of the supplemental July 1903 agreement between Washington and Havana over Guantanamo, which stipulates that “the United States of America agrees that no person, partnership, or corporation shall be permitted to establish or maintain a commercial, industrial or other enterprise within said areas.”

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Source: Council on Hemispheric Affairs