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Max Planck Encyclopedia of Public International Law [MPEPIL]

Guantánamo Naval Base

Alfred de Zayas

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 21 May 2024

Military matters — Occupation — Armed forces — Combatants, unlawful — Prisoners of war

Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020). 

A.  Historical Background

Guantánamo Naval Base (also known as Gitmo) is the oldest American naval base outside the continental United States of America (Governmental Activities on Foreign Territory; Military Forces Abroad). It occupies 45 square miles, or 117.6 square kilometres, an area roughly the size of Manhattan Island. It is situated in the south-east corner of the Republic of Cuba’s easternmost Municipio de Caimanera, Provincia de Guantánamo (Cuba), west of the Republic of Haiti and north of Jamaica. It has been continuously occupied by the US since the Spanish-American war in 1898 and played a role in monitoring the Caribbean seas during World Wars I and II. The base was significantly expanded in 1951, 1964, 1991, and 2002 and is totally self-sufficient with its own power and water sources. It employs approximately 9,500 US personnel.

Pursuant to a commitment undertaken by the Cuban Constitutional Assembly in 1901, Cuba agreed to include in its Constitution the text of the so-called ‘Platt Amendment’ (An Act Making Appropriation for the Support of the Army for the Fiscal Year Ending June Thirtieth, Nineteen Hundred Two), in exchange for which the US would withdraw its occupation troops from Cuba (Occupation, Military, Termination of). By virtue of the Platt Amendment the US had the right to intervene militarily in the domestic affairs of Cuba and Cuba was obliged to grant naval bases to the US (see also Intervention by Invitation).

On 20 May 1902 Cuba was declared independent. In 1903, the first President in Cuba, T Estrada Palma, signed a first lease agreement (Agreement between Cuba and the United States for the Lease of Lands for Coaling and Naval Stations; ‘1903 Lease Agreement’) over naval bases in Guantánamo and Bahia Honda; a second lease agreement (Treaty Concerning the Relations between the United States of America and the Republic of Cuba; ‘1934 Lease Agreement’) followed in 1934 (Territory, Lease; see also Pledge of State Territory and Property). Since the Cuban revolution of 1959, Cuba has maintained that the US occupation of Guantánamo is illegal because imposed by force and a vestige of colonialism; since 1960 Cuba has not cashed the checks in the amount of US $2,000 (US $4,085 since 1974) tendered by the US as rent for the use of the territory. Official diplomatic relations were severed by the US in January 1961 (Diplomatic Relations, Establishment and Severance). On 17 December 2014 US President Barack Obama and Cuban President Raúl Castro stated that they were considering the modalities of re-establishing diplomatic relations. As a condition, Castro demanded the return of Guantánamo, a demand repeated at the Summit of the Comunidad de Estados Latinoamericanos y Caribeños (‘CELAC’) in Costa Rica in January 2015.

Cuba has repeatedly protested against the continued US presence in Guantánamo before the General Assembly (‘UNGA’; United Nations, General Assembly), the UN Commission on Human Rights and the Human Rights Council (United Nations Commission on Human Rights/United Nations Human Rights Council). Cuban protest[s] notwithstanding, the US has asserted its intention to stay in Guantánamo. Although leased as a naval and coaling station, the base was used in the 1990s for housing more than 50,000 Haitian and Cuban refugees and economic migrants, and since January 2002 it has been converted into a detention and interrogation centre for 775 detainees, prisoners of war, and persons whom the US term as unlawful combatants (Combatants, Unlawful; Guantánamo, Detainees). As of July 2016 there are 76 persons being detained in Guantánamo, most of them without charge or trial after more than ten years of detention, of whom 31 have been recommended for release and 35 are designated for ‘indefinite detention’. Six suicides have been reported. In earlier times Guantánamo played a role in the logistics for the 1983 US invasion of Grenada, the 1984 invasion of Haiti (Haiti, Conflict), and the 1989 invasion of the Republic of Panama.

B.  Lease Agreement

Art. VII Platt Amendment stipulates

[t]hat to enable the United States to maintain the independence of Cuba, and to protect the people thereof, as well as for its own defence, the government of Cuba will sell or lease to the United States lands necessary for coaling or naval stations at certain specified points, to be agreed upon with the President of the United States.

Art. VIII Platt Amendment stipulates ‘[t]hat by way of further assurance the government of Cuba will embody the foregoing provisions in a permanent treaty with the United States.’ This agreement (Treaty between Cuba and the United States Determining their Relations) was imposed on the incipient Cuban administration as a condition to the departure of the US military that were occupying Cuba since the 1898 Spanish-American War. It was pursuant to the Platt Amendment that the 1903 Lease Agreement was signed, obligating Cuba to lease ‘for the time required for the purposes of coaling and naval stations’, several ‘areas of land and water situated in the Island of Cuba’ (Art. I 1903 Lease Agreement), including Guantánamo. Under Art. II 1903 Lease Agreement, Cuba granted

the right to use and occupy the waters adjacent to said areas of land and water…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 (emphasis added).

With regard to the issue of sovereignty, Art. III 1903 Lease Agreement stipulates:

While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas with the right to acquire…for the public purposes of the United States any land or other property therein by purchase or by exercise of eminent domain with full compensation to the owners thereof (emphasis added; Jurisdiction of States).

The 1903 Lease Agreement was supplemented by a further agreement signed by the plenipotentiaries of Cuba and the US on 2 July 1903 (Convention between Cuba and the United States for the Establishment of Naval and Coaling Stations at Guantánamo and Bahia Honda; ‘Supplementary Convention’). Pursuant to Art. I Supplementary Convention, the US agreed to pay to Cuba the annual sum of US $2,000. Art. III Supplementary Convention further stipulates that ‘no person, partnership, or corporation shall be permitted to establish or maintain a commercial, industrial or other enterprise within said areas’.

The 1903 Lease Agreement and the Supplementary Convention were confirmed and slightly revised by the 1934 Lease Agreement, signed in Washington on 29 May 1934, in which the US agreed to slightly increase the amount of the lease. With regard to the duration of the lease, Art. III 1934 Lease Agreement provides that

[u]ntil 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…the stipulations of that Agreement with regard to the naval station of Guantánamo shall continue in effect.

C.  Cuban and United States Views on the Lease

In 1959 the Cuban government informed the US that the lease should be terminated, expressing the view that the continued US presence in Guantánamo constituted an illegal occupation (Treaties, Termination). Following the Cuban Missile Crisis in 1962, President Castro presented a plan of reconciliation with the US. Point Five of the ‘Cinco Puntos’ advanced on 28 October 1962 as a basis for negotiations stipulates the ‘withdrawal of the naval base of Guantánamo and return of the Cuban territory occupied by the United States’ (‘Cuban Demands for Additional Measures to Support Termination of the United States Naval Blockade of Cuba: Message from the Prime Minister of Cuba [Castro] to the U.N. Acting Secretary-General [Thant]’ reprinted in United States Department of State [ed], American Foreign Policy: Current Documents 1962 [United States Department of State Washington 1966] 447–48).

10  In January 2002, shortly after the US started transferring Taliban detainees to Guantánamo, the government of Cuba made a declaration recalling that

[t]he Platt Amendment, which granted the United States the right to intervene in Cuba, was imposed on the text of our 1901 Constitution as a prerequisite for the withdrawal of the American troops from the Cuban territory. In line with that clause, the aforementioned Agreement on Coaling and Naval Stations was signed on February 1903 … ‘In due course…the illegally occupied territory of Guantánamo should be returned to Cuba!’ (‘Statement by the Government of Cuba to the National and International Public Opinion’ Granma Internacional [Havana Cuba 14 January 2002]).

In a statement to the UNGA, dated 14 June 2002, Cuba demanded that the US return Guantánamo, noting that the territory had been ‘usurped illegally against the wishes of its people’ (UNGA ‘Right of Peoples to Self-Determination: Report of the Secretary-General’ [15 August 2002] UN Doc A/57/312 at 2). On 19 January 2005 Cuba presented a note verbale to the US protesting against the misuse of the Naval Base for other than ‘naval and coaling’ purposes, and accusing the US of committing grave human rights violations on Cuban soil (‘Statement from the Ministry of Foreign Affairs’ Granma Internacional [Havana Cuba 20 January 2005]).

11  The US has repeatedly stated that it intends to stay indefinitely in Guantánamo, and is currently expanding the base. It insists that the lease is open-ended in duration and that it can be terminated only by mutual agreement. According to this approach, for as long as the US withholds its consent to termination, it exercises complete jurisdiction over the area. Guantánamo may thus be regarded a quasi-dependent territory of the US.

D.  Validity of the Lease Agreement under International Law

12  In interpreting the validity of the lease agreement (Treaties, Validity), there are three possible scenarios: lease in perpetuity, void ex tunc, and voidable ex nunc.

1.  Lease in Perpetuity

13  The US position is based on Art. 26 Vienna Convention on the Law of Treaties (1969) (‘VCLT’; 1155 UNTS 331), which stipulates pacta sunt servanda. The US argues that it has a perpetual lease, since Art. 1 1934 Lease Agreement provides that the lease can be revised or terminated only by mutual agreement. This position is reflected in the judgments of US federal courts that interpret the lease agreement as a valid perpetual lease, in which Cuba has ultimate sovereignty and the US full jurisdiction (Interpretation in International Law).

2.  Void ex tunc

14  The Cuban position is that the lease agreement should be considered to have been void from the beginning, because it was imposed by force (see also Nullity in International Law). Cuba is thus referring to Art. 52 VCLT. Although the VCLT only entered into force in 1980 and the US is not a party to it, most of its provisions, including Art. 52, are recognized as declarative of pre-existing customary international law. However, the question arises whether the prohibition of force or the prohibition of annexation had already coagulated as a norm of international law in 1903 or in 1934, when the lease agreements were signed (Use of Force, Prohibition of). It may be argued that the prohibition on the use of force and the prohibition of coercion had not yet emerged in 1903 as international law. It may be further argued that the intertemporal law principle enunciated in the Palmas Island Arbitration ([1928] 2 RIAA 829; Palmas Island Arbitration) comes into play, namely that it is the law in existence at the relevant time (1903 and 1934 for the Guantánamo leases) that governs the question of the validity of the treaty or the question of sovereignty at that point in time. In the light of these considerations, it would be difficult to conclude that the lease agreements were void ab initio.

3.  Voidable ex nunc

15  Five possible grounds for invalidating the lease agreement may be advanced: a) the doctrine of unequal treaties; b) the emergence of a peremptory norm of international law which is incompatible with the lease agreement; c) implied right of denunciation; d) the doctrine of fundamental change of circumstances; and e) termination by virtue of material breach of the terms of the lease.

(a)  Doctrine of Unequal Treaties

16  The process of decolonization in the UN gave impetus to the doctrine of the invalidity of unequal treaties (Treaties, Unequal). This doctrine has been confirmed by the renegotiation of the Panama Canal in 1977 and its return to Panamanian sovereignty in January 2000. Based on the same doctrine, the United Kingdom returned Hong Kong to the People’s Republic of China in 1997 and the Portuguese Republic returned Macau to China in 1999. Although the relevant treaties and lease agreements were originally declared to be ‘in perpetuity’ by the US, the UK, and Portugal, respectively, they were terminated by subsequent peaceful negotiation. In arguing for the return of Hong Kong and Macau, China specifically invoked the doctrine of unequal treaties. It remains, however, doubtful whether these agreements amount to recognition of the doctrine of the invalidity of unequal treaties and its ensuing international law consequences.

(b)  Emergence of New Peremptory Norms

17  In the light of the process of decolonization, the principle of self-determination emerged as ius cogens. Art. 64 VCLT provides that ‘if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates’. The decolonization process illustrates the peremptory nature of self-determination. Moreover, Art. 1 International Covenant on Civil and Political Rights (1966) (999 UNTS 171), and Art. 1 International Covenant on Economic, Social and Cultural Rights (1966) (993 UNTS 3) both stipulate the right to self-determination and the right of a people to dispose of its natural wealth and resources (Natural Resources, Permanent Sovereignty over). UNGA Resolution 1514 (XV) of 14 December 1960 (GAOR 15th Session Supp 16, 66) affirms the right to self-determination. On the occasion of the adoption of this UNGA Resolution 1514 (XV), the Cuban Foreign Minister R Roa stated that this declaration necessarily applied to Guantánamo Naval Base. Similarly, the UN Friendly Relations Declaration (1970) (UNGA Res 2625 [XXV] [24 October 1970] GAOR 25th Session Supp 28, 121; Friendly Relations Declaration (1970)) affirms the principle of equal rights of peoples and the principle of the sovereign equality of States (Equality of Individuals; States, Sovereign Equality). The International Court of Justice (ICJ) judgment of 30 June 1995 in East Timor (Portugal v Australia) ([1995] ICJ Rep 90) may be taken to reaffirm the principle of self-determination.

18  In paragraph 11 UNGA Resolution 2189 (XXI) of 13 December 1966 (GAOR 21st Session Supp 16, 5; ‘Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples’), the UNGA requested

the colonial Powers to dismantle their military bases and installations in colonial Territories and to refrain from establishing new ones and from using those that still exist to interfere with the liberation of the peoples in colonial Territories in the exercise of the legitimate rights to freedom and independence.

Pursuant to UNGA Resolution 2165 (XXI) of 5 December 1966 (GAOR 21st Session Supp 16, 12) the issue of military bases on foreign soil was referred to the UN Conference on Disarmament, reaffirmed in UNGA Resolution 2344 (XXII) of 19 December 1967 (GAOR 22nd Session Supp 16 vol 1, 16).

19  In this context, during the relevant discussions in the UNGA and UN Security Council (United Nations, Security Council) concerning the US military presence in the Panama Canal Zone, the principles enunciated in the Friendly Relations Declaration were relied upon as constituting customary international law. It was argued that the old Convention between the United States and the Republic of Panamá, for the Construction of a Ship Canal to Connect the Waters of the Atlantic and Pacific Oceans ([done 18 November 1903] 96 BSP 553) had become obsolete by virtue of the emergence of a new international legal order based on the UN Charter.

20  With regard to military bases on foreign soil, the Belgrade Summit of the Non-Aligned Movement (NAM) adopted the Belgrade Declaration ([done 6 September 1961] reprinted in EJ Osmanczyk and A Mango [eds] Encyclopedia of the United Nations and International Agreements vol 3 N to S [3rd edn Routledge New York 2003] 1572–76), which refers to foreign military bases as a residue of colonialism and a violation of national sovereignty. Art. 11 Belgrade Declaration considers such bases to constitute a threat to international peace and security within the meaning of Art. 39 UN Charter (Peace, Threat to). Every summit of the NAM has demanded that foreign military bases be dismantled.

(c)  Implied Right of Denunciation

21  The majority of modern treaties contain provisions for termination or withdrawal. Sometimes it is provided that the treaty shall come to an end automatically after a certain time, or when a particular event occurs; other treaties merely give each party an option to withdraw, usually after giving a certain period of notice. Moreover, in light of the fact that in international practice the longest-running leases were for 99 years, it may be argued that after 113 years since the initial 1903 Lease Agreement, the Guantánamo lease is overdue for termination.

22  Finally, any good faith interpretation of the lease would have to focus on the language recognizing Cuban sovereignty over the territory (Good Faith [Bona fide]). It may be argued that an indefinite lease is not reconcilable with sovereignty (Art. 56 VCLT).

(d)  Fundamental Change in Circumstances: Clausula rebus sic stantibus

23  The fundamental change of circumstances can also be invoked to test the validity of treaties dating back to colonial times (Treaties, Fundamental Change of Circumstances). Newly independent nations have resorted to this argument in order to terminate their inherited burdens, sometimes with reference to Art. 62 VCLT (New States and International Law). They have invoked the doctrine not only on the basis of justice but also because a treaty fails to accord with the present conditions of the world or the relationship between the States concerned.

(e)  Termination by Virtue of Material Breach of the Agreement

24  Pursuant to Art. 60 VCLT, a treaty is voidable by virtue of material breach of its provisions. According to the terms of Arts 1 and 2 1903 Lease Agreement, the use of the Guantánamo Bay territory was limited to coaling and naval purposes only, ‘and for no other purpose’. It would follow that the repeated use of the territory as an internment camp (for 36,000 Haitian refugees in the years 1991–94 and 21,000 Cuban refugees in the 1990s) or as a detention and interrogation centre for persons captured in the context of the ‘war on terror’ would constitute such a material breach. In this context, the presumed grave human rights violations committed in the leased territory are indubitably of relevance. In light of the multiple material breaches of the 1903 Lease Agreement, the unilateral termination of the lease by Cuba might be justified in accordance with Art. 60 VCLT (Unilateral Acts of States in International Law).

E.  Conclusion

25  Under modern international law, the Guantánamo lease agreement might be voidable ex nunc. Nevertheless, a reasonable period for the termination of the lease should be allowed. Cuba has no possibility to expel the United States from Guantánamo, as this would contravene the prohibition of the use of force contained in Art. 2 (4) UN Charter. Cuba’s persistent protests have the function of frustrating any eventual US contention about putative Cuban acquiescence, thus preventing the US from being able to claim sovereignty over the territory by virtue of occupation and prescription.

26  In the light of the international law obligation contained in Art. 2 (3) UN Charter to settle disputes by peaceful means, the question of the continued validity of the lease could be tested by means of binding arbitration, or submitted to adjudication by the International Court of Justice, if indeed the dispute cannot be settled through bilateral negotiation. Any such tribunal would have to interpret the meaning of the term ‘sovereignty’, as it appears in Art. III 1903 Lease Agreement. Yet another term requiring interpretation is the word ‘continued’, since the agreement provides for Cuba’s ‘continued ultimate sovereignty’. The question arises whether ‘continued sovereignty’ can be rendered meaningless by virtue of a lease agreement that does not state a specific date of termination.

27  Guantánamo Naval Base may be considered from two different aspects, namely as a relic of the late 19th/early 20th century and, from a human rights point of view, as an example of an extremely problematic attempt to cope with international organized terror (Terrorism). However, on both aspects there remains a division of opinion.

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