A Constructive Plot to Return Guantanamo Bay to Cuba in the Near Future

“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.”

“Gitmo” Facts
The U.S. obtained control of Guantanamo as the result of the 1898 Spanish-American war. In 1903, Theodore Roosevelt, using the Platt Amendment passed by the U.S. Senate, pressured the weak Cuban government (which the U.S. had placed in power) to lease Guantanamo Bay to the United States in what essentially appears to be in “perpetuity.” This was no great task as Cuba was, at that time, an entirely dependent regime largely being ruled from Washington. The then Cuban president was an American citizen named Tomas Estrada Palma, who was persuaded to grant a lease of 117 square kilometers of Cuban territory surrounding Guantánamo Bay to the U.S. on February 23, 1903. Construction of a military base immediately proceeded in order to eventually house a contingent of American troops and a naval flotilla.

From its inception, Guantanamo was viewed as the first line of defense against any attack on the Panama Canal, over which the U.S. also had obtained jurisdiction from a comparable act of legal legendemare. The move to integrate Guantanamo into the chain of U.S.-dominated military facilities was mainly inspired by the Canal, and was driven by a security perspective. How the U.S. obtained this base is a prime example of an imperial power taking whatever it coveted as a fruit of war. The negotiations that ended in Washington gaining de facto control of areas former under Spanish control in the Pacific as well as the Caribbean, were not so much the results of deliberations between two equal independent nations, but rather negotiations between a relative superpower and its proxy state. Even if Estrada wanted to, he was powerless to affect Washington’s insistence that the Platt Amendment regulating Washington’s access to Guantanamo would be incorporated into the Cuban Constitution in 1901.

In 1934, as part of a movement to multilateralize the application of the Monroe Doctrine under the Pan American Union – which was undertaken by President Roosevelt under his “Good Neighbor” policy – Cuba was allowed to expunge the Platt Amendment from its constitution but was persuaded to negotiate a new lease regarding Guantanamo Bay with Washington. The Cuban government at the time had all the attributes of a full-fledged U.S. protectorate, ken to Britain’s relationship with post-Ottoman Empire satrapies. One of the three Cuban signatories on the new lease was the island’s future dictator, Fulgencio Batista. Article III of the 1934 treaty explains that: “So long as the United States of America shall not abandon the said naval station of Guantanamo or the two Governments shall not agree to a modification of its present limits, the station shall continue to have territorial area that it now has.” It is all but unthinkable to believe that the U.S. will be in the mood to voluntarily pack its troops and equipment from Guantanamo and redeploy them, just as it would be a long stretch to believe that any American administration (Democrat or Republican), at the insistence of Castro, would return the base to Havana’s sovereignty, no matter how redundant it’s continued use might be. Nevertheless, some parallel exists with the manner in which Washington transferred its authority over the Panama Canal back to Panama or Great Britain’s return of the Suez Canal to Egypt in 1956. What is certain is that Guantanamo irredenta might become Latin America’s war cry against the U.S.

In comparison, today there is no bona fide threat to U.S. security coming from Cuba. Furthermore, a possible missile attack, akin to the one posed by the missile crisis of 1962, is similarly beyond the realm of possibility. If launched from Cuba, such an attack would be suicidal due to the overwhelming force available to the U.S. to stage a massive counterattack. Also, it is a near certainty that the Cuban military does not possess any missiles with which to launch such an attack, let alone the nuclear warheads to arm their weapons. In any future military scenario, the U.S. is far more likely to be attacked by one of its main trading partners and renowned human rights violator, the People’s Republic of China – who recently tested a missile that destroyed a satellite in space – than by Cuba’s increasingly hapless armed forces, whose strained economic conditions has demoted it to third-rate status. In a March 2005 article, Dan Gardner of CanWest News Service explained that Guantanamo’s “other key purpose—protecting the passage to the Panama Canal Zone—became moot when then-president Jimmy Carter returned the canal to Panama.”

Lately, another justification for the continued retention of Gitmo has been its use as a detention facility for suspected terrorists, such as Khalid Sheikh Mohammed, and before that, would-be Haitian and Cuban refugees hoping to enter the U.S. The prison at “Gitmo” recently opened a new wing, called Camp 6, constructed by the controversial U.S. military contractor Haliburton Co., at a cost of $30 million. These developments indicated that Washington policymakers apparently had no plans to relocate the facility anytime soon. In a recent interview on C-SPAN, as reported by Global News Wire’s Charles Stimson, the U.S. deputy assistant secretary of defense for detainee affairs, took the position that: