Sunday, March 19, 2017

The Guantanamo Base: Law and History

The Center for International Policy and the
Center for Constitutional Rights

A Conference on Prisoners Held at the U.S. Naval Base, Guantanamo Bay, Cuba
National Press Club
Washington, D.C.
April 11, 2005

Remarks of Robert L. Muse

“Historical and Legal Aspects of the U.S. Occupation of Guantanamo Bay, Cuba”


         On January 3, 2005 USA Today began providing weather reports for Guantanamo Bay, Cuba.  Not long after, the Bush Administration sought funding from Congress to build yet another prison wing there to hold detainees in the U.S. war on terror.  Both of these events suggest a continued U.S. presence for years to come!

The question I will attempt to answer is: Under what authority does the U.S. occupy Guantanamo Bay, Cuba and build a prison there? 

A Short History of U.S. Occupation of Guantanamo Bay

         The area that was to become the U.S. naval base at Guantanamo was first occupied in 1898 during the Spanish-American War as a campsite for U.S. Marines.  Once there, the U.S. never left. 

         From its beachhead at Guantanamo Bay U.S. forces attacked Spanish troops in eastern Cuba.  Following the surrender of the Spanish at Santiago, the U.S. launched the invasion of Puerto Rico from Guantanamo Bay. 

         A number of concessions were extracted from Cuba during the almost total U.S. political and economic domination that followed Cuba’s successful revolt from Spain.[1]  Among those concessions was that Cuba would agree to sell or lease to the U.S. “lands necessary for coaling or naval stations.” [2]  In 1903 Cuba signed a Treaty of Relations with the United States and formally “leased” Guantanamo Bay to the U.S. for use as a naval station.  (I will discuss the terms of that lease in more detail later).

         The land eventually occupied by the U.S. under the 1903 Agreement amounts to about 45 square miles or 19,600 acres—an area the size of Manhattan.  

         Over time the base came to serve as the winter training grounds of the U.S. Atlantic fleet.  It also served as the point of deployment for U.S. troops that intervened to “preserve order” in Cuba under the terms of the Platt Amendment.  Such interventions occurred in 1912 and 1917 for the purpose of “protect[ing] U.S. nationals and their property.” 

         After World War I activity at the base slowed, in 1930 a short story was published in the U.S. titled “Guantanamo Blues” by a “navy wife.”  The story was widely read in this country, and depicted a bored and frustrated American outpost where extramarital sex and heavy drinking were the chief diversions. 

         Interestingly, in 1930 the Base Commander enforced the lease agreement’s prohibition on commercial establishments and expelled a Cuban rancher who was providing beef from a butcher shop in the naval station.  (As we shall see, after the Cuban Revolution, all pretense of observing the terms of the lease were abandoned by the U.S. side). 

         In 1933 the infamous Machado regime fell and the Roosevelt Administration, pursuant to its new “good neighbor policy,” terminated the Platt Amendment and with it the original 1903 Treaty of Relations between the U.S. and Cuba.  However, the provisions of that treaty as they related to the lease of Guantanamo Bay continued to apply by virtue of a new mutual agreement of 1934, something I will discuss in a moment.

         In 1938 the last coal—most of it left over from the Spanish American War forty years before—was removed and the Navy closed the base as a “coaling station.” 

         In anticipation of war, starting in 1940 there began what has been described as the “great expansion” of the naval base at Guantanamo Bay.  The end of World War II saw little diminishment of base activity.  In the 1950s the population of the base, both military and civilian, numbered about 10,000. 

         The base continued to expand its housing, schools and other facilities after diplomatic relations between Cuba and the U.S. were severed in 1961.  In that regard, the U.S. government announced: “The termination of our diplomatic and consular relations with Cuba has no effect on the status of our naval station at Guantanamo.  The treaty rights under which we maintain the naval station may not be abrogated without the consent of the United States.”  

         The 1990s saw the beginning of truly systematic violations of the lease Agreement limiting the base to use only as a naval station when Guantanamo Bay was used by President Clinton as a detention facility for 11,000 Haitian refugees and 30,000 Cubans intercepted at sea trying to reach the United States.  In 1999 President Clinton even proposed housing refugees from Kosovo at Guantanamo, although in the end it did not happen.

         The year 2002 saw the arrival at Guantanamo of several hundred men alleged to be members of al-Qaida, the Taliban or just “unlawful combatants” in the U.S. war on terror.  The reasons the U.S. wishes to hold prisoners at Guantanamo are fairly obvious.  At first the Bush Administration believed U.S. courts would have no jurisdiction to hear the claims for release of inmates incarcerated there.  The Supreme Court disabused them of that idea in Rasul v. Bush.  Nevertheless considerable advantages remain in placing prisoners in remote locations outside of the U.S., thereby making access to attorneys and courts extremely difficult.

The Agreements Pertaining to Guantanamo Bay

February 23, 1903 Agreement:

         This Agreement is styled a “lease (subject to terms to be agreed upon by the two governments) to the United States of lands in Cuba for coaling and naval stations.”

         The February 23 Agreement cites Article VII of the Appendix to the Cuban Constitution which says: “To enable the United States to maintain the independence of Cuba, and to protect the people thereof, as well as for its own defense, the Cuban Government will sell or lease to the United States the lands necessary for coaling or naval stations, at certain specified points, to be agreed upon with the President of the United States. 
         The Agreement goes on to say, “Having reached an agreement to that end, as follows”: 

         Article I states:  The Republic of Cuba hereby leases to the United States, for the time required for the purposes of coaling and naval stations…[Guantanamo].” 

         Article II says that the U.S. has “the right…to do any and all things necessary to fit the premises for use as coaling or naval stations only, and for no other purpose.”  (Emphasis added).

October 6, 1903 Agreement:

         This Agreement begins with the preamble that “the U.S. and Cuba, being desirous to conclude the conditions of the lease of areas of land and waters for the establishment of naval or coaling stations in Guantanamo…have agreed to the following Articles:”

         Article I: “The U.S. agrees to pay Cuba the annual sum of $2,000…as long as the former shall occupy and use [Guantanamo] by virtue of said Agreement.”

         Article III provides that “The U.S. agrees that no person, partnership, or corporation shall be permitted to establish or maintain a commercial, industrial or other enterprise within said areas.”

Agreement of June 9, 1934:


         This Agreement terminated the Treaty of Relations of 1903 between the U.S. and Cuba.  However, Article III provides:  Until the two contracting parties agree to the modification or abrogation of the stipulations of the agreement in regard to the lease to the United States of America of lands in Cuba for coaling and naval stations signed by the President of the Republic of Cuba on February 16, 1903…the stipulations of that agreement with regard to the naval stations of Guantanamo shall continue in effect.”

         So, in the U.S. view it is entitled to occupy Guantanamo Bay until it agrees to terminate the lease. In a moment we will examine what the international law of treaties has to say on the subject.

U.S. Attitudes toward the Base

         In 1953 the Commander of the naval base, Rear Admiral Murphy, wrote “Guantanamo is in effect a bit of American territory…for we have a lease in perpetuity to this Naval Reservation and it is inconceivable that we would abandon it.” 

         Rear Admiral Murphy went on to say, “…it is clear that at Guantanamo Bay we have a Naval reservation which, for all practical purposes, is American territory. Under the foregoing agreements, the United States has for approximately fifty years exercised the essential elements of sovereignty over this territory, without actually owning it. Unless we abandon the area or agree to a modification of the terms of our occupancy, we can continue in the present status as long as we like. Persons on the reservation are amenable only to United States legislative enactments.”

         In 1981 a former Base Commander described Guantanamo Bay as “…any other base or American city…except that it happens to be a 45-mile square chunk of real estate at the southeastern tip of a Communist country.”  He was right, like any other American city numerous commercial establishments operate at the base, including fast food franchises.  Each of these establishments exists in violation of the 1903 Agreement’s prohibition on “commercial [and] industrial enterprise[s].”
         The U.S. has clearly acted for some years as if it is free to put Guantanamo Bay to whatever purpose it chooses, regardless of whether that use is prohibited under the terms of the Agreement that allow the use of the area “for…[a] coaling or naval station only, and for no other purpose.” (Emphasis added) 

Cuban Attitudes Toward the Base

         Cuban President Fidel Castro not long after coming to power said, “The naval base is a dagger plunged into the Cuban soil…a base we are not going to take away by force, but a piece of land we will never give up.”

         On February 24, 1976, Cuban voters approved Article 10 of the Cuban Constitution (Article 12 of the modified 1992 Constitution), which states: “The Republic of Cuba repudiates and considers illegal and null the treaties, pacts or concessions agreed upon in unequal terms that ignore or diminish its sovereignty over any possession of the national territory.”  

         In 1977 Fidel Castro said “when one mentions an undetermined length of time in a legal contract, it’s understood that it means 100 years [i.e. October 2003]…       

         The most interesting statement from Cuba in recent years is the one issued on January 11, 2002 as Taliban and other prisoners were arriving at Guantanamo Bay from Afghanistan.  In that statement the 1903 Lease Agreement for Guantanamo is described as “abusive” and something imposed on Cuba at a time when “our country was not really independent.”  The statement goes on to say “the base has been put to multiple uses, none of them contemplated in the Agreement.” 

         On January 20, 2005 the Cuban Ministry of Foreign Affairs issued a statement that denounced what it described as “atrocities committed on prisoners held at the U.S. Naval Base in Guantanamo.”  The statement went on to describe a diplomatic note recently given to the U.S. State Department.  The note “remind[ed] the U.S. government that the atrocities being committed on the base and the very fact of utilizing that illegally occupied Cuban territory as a prison, is in violation of numerous instruments of international law and international humanitarian law, and moreover, violates the Coal and Naval Stations Agreement signed in February 1903 by the government of the United States and the Cuban government of that period, in conditions of inequality and disadvantage for our country, whose independence was circumscribed via the Platt Agreement.”

International Law Applied to the Lease Agreements for the Naval Base at Guantanamo Bay, Cuba

         The lease agreements are treaties and therefore are subject to international law.  The U.S. is in breach of the terms of the various agreements in at least two ways:  It is using Guantanamo Bay for purposes other than as “a coaling or naval station” and it allows commercial enterprises to operate on the base.

         The Vienna Convention on Treaties provides, at Article 60(1), that: “A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty …” [3]

Because the U.S. is in illegal occupation of Guantanamo Bay, Cuba is entitled to use force to recover that part of its national territory.[4]  However disparities of power make that most unlikely.             
         Article 96(1) of the U.N Charter provides that “[t]he General Assembly or the Security Council” may request the International Court of Justice to give an advisory opinion on “any legal question.”  Last summer the Court issued such an opinion dealing with the consequences of the Israeli construction of a wall in occupied Palestinian territory.

         The present Administration is most unlikely to be influenced by an advisory opinion of an international tribunal, but if the ICJ were to rule that the U.S. occupation of Guantanamo Bay is unlawful, at least the beginning of a national discussion of the propriety of that occupation might follow.  


Presidential Authority to Terminate the U.S. Occupation of Guantanamo Bay

As we have seen, the right of the U.S. to establish and occupy a naval base at Guantanamo Bay dates to 1901, with modifications in 1903 and 1934. To reiterate, in1934 the U.S. and Cuba signed a treaty stipulating that: “So long as the United States of America shall not abandon the said naval station at Guantanamo or the two governments shall not agree to modification of its present limits, the station shall continue to have the territorial area it now has…”

Article II, section 1 of the U.S. constitution provides the President with the “executive Power” of the United States. That power finds its principal application in the execution of the nation’s laws. Under Article VI of the constitution, treaties are considered laws of the United States. Should the President decide, in the language of the 1934 treaty, to “abandon” Guantanamo, his execution of that inherent prerogative of the treaty would at the same time terminate it. Legal precedent supports the conclusion that Congress would be powerless to overturn such action. In United States v. Curtiss-Wright Export Corp. (1936) the Supreme Court said:

“ It is important to bear in mind that we are here dealing with…the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations – a power which does not require as a basis for its exercise an act of Congress …" (Emphasis added)

Relying on such authority, President Carter in 1979 terminated the mutual defense treaty with Taiwan following his recognition of the Chinese government in Beijing. Similarly, President George W. Bush in 2001 gave Russia notice and withdrew from the Anti-Ballistic Missile (ABM) Treaty ratified by the Senate in 1972.

[1] There is considerable historical support for the Cuban view that the U.S. intervened in Cuba’s long and bloody war of independence at precisely the moment victory over Spain was assured.  In return for its “assistance” in liberating Cuba, the U.S. established what can only be described as a proconsulship there.
[2] Leasing a naval base to the U.S. was a specific provision of Cuba’s first post-independence constitution. See Article VII of the Appendix to the Constitution of 1901.  This Appendix was called the Platt Amendment after the U.S. senator who drafted it, Orville A. Platt.  It has been described as: “In its essential features, the Platt Amendment addressed the central element of the United States’ hegemonial aspirations in Cuba as shaped in the course of the nineteenth century.  Something of a substitute for annexation, it served to transform the substance of Cuban sovereignty into an extension of the U.S. national system.” Perez, Louis A. Cuba Under the Platt Amendment 1902-1934.
[3] The 1960 Vienna Convention does not, strictly speaking, apply to the 1903 or 1934 Agreements because it post-dates them.  However, the Convention merely recapitulates the long established international law of treaties.
[4] See Principles of Public International Law (5th ed.) where Professor Ian Brownlie says that following the revocation of a lease for a military base “…after a reasonable time has elapsed, force may be employed to evict the trespasser.”

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