The Leasing of Guantanamo Bay 9780313377822, 2009003912, 9780313377839, 0313377839, 0313377820

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The Leasing of Guantanamo Bay

Praeger Security International Advisory Board Board Co-Chairs Loch K. Johnson, Regents Professor of Public and International Affairs, School of Public and International Affairs, University of Georgia (U.S.A.) Paul Wilkinson, Professor of International Relations and Chairman of the Advisory Board, Centre for the Study of Terrorism and Political Violence, University of St. Andrews (U.K.) Members Anthony H. Cordesman, Arleigh A. Burke Chair in Strategy, Center for Strategic and International Studies (U.S.A.) Th´er`ese Delpech, Director of Strategic Affairs, Atomic Energy Commission, and Senior Research Fellow, CERI (Fondation Nationale des Sciences Politiques), Paris (France) Sir Michael Howard, former Chichele Professor of the History of War and Regis Professor of Modern History, Oxford University, and Robert A. Lovett Professor of Military and Naval History, Yale University (U.K.) Lieutenant General Claudia J. Kennedy, USA (Ret.), former Deputy Chief of Staff for Intelligence, Department of the Army (U.S.A.) Paul M. Kennedy, J. Richardson Dilworth Professor of History and Director, International Security Studies, Yale University (U.S.A.) Robert J. O’Neill, former Chichele Professor of the History of War, All Souls College, Oxford University (Australia) Shibley Telhami, Anwar Sadat Chair for Peace and Development, Department of Government and Politics, University of Maryland (U.S.A.) Fareed Zakaria, Editor, Newsweek International (U.S.A.)

The Leasing of Guantanamo Bay Michael J. Strauss

PRAEGER SECURITY INTERNATIONAL Westport, Connecticut r London

Library of Congress Cataloging-in-Publication Data Strauss, Michael John, 1953– The leasing of Guantanamo Bay / Michael J. Strauss. p. cm. Includes bibliographical references and index. ISBN 978–0–313–37782–2 (hardback) 1. Guant´anamo Bay Naval Base (Cuba)—International status. 2. Leased territories. 3. United States—Foreign relations—Cuba. 4. Cuba—Foreign relations—United States. I. Title. KZ4129.S77 2009 341.4 2—dc22 2009003912 British Library Cataloguing in Publication Data is available. C 2009 by Michael J. Strauss Copyright 

All rights reserved. No portion of this book may be reproduced, by any process or technique, without the express written consent of the publisher. Library of Congress Catalog Card Number: 2009003912 ISBN: 978–0–313–37782–2 First published in 2009 Praeger Security International, 88 Post Road West, Westport, CT 06881 An imprint of Greenwood Publishing Group, Inc. www.praeger.com Printed in the United States of America

The paper used in this book complies with the Permanent Paper Standard issued by the National Information Standards Organization (Z39.48–1984). 10 9 8 7 6 5 4 3 2 1

In memory of my father, Howard J. Strauss

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CONTENTS

Preface

ix

Introduction

1

1

Sovereign States and Their Territory

4

2

The Nature of Territorial Leases

20

3

The Guantanamo Bay Lease

40

4

Objectives of the Lease

62

5

Jurisdiction at Guantanamo Bay

78

6

Duration of the Lease

104

7

The Annual Rent Payments

126

8

Recent and Current Issues

138

9

The Lease in U.S.-Cuban Relations

156

10 The Future of the Guantanamo Bay Lease

170

11 The Global Impact of the Lease

186

APPENDICES Appendix 1. Treaty of Paris (1898)

205

Appendix 2. The Platt Amendment (1901)

212

Appendix 3. Lease Agreement, First Part (1903)

214

Appendix 4. Treaty of Relations (1903)

219

Appendix 5. Lease Agreement, Second Part (1903)

223

Appendix 6. Guantanamo Bay Expansion Treaty (1912)

228

Appendix 7. Treaty of Relations (1934)

232

viii

Contents

Appendix 8. U.S. Legal Arguments (1962)

234

Appendix 9. UN Assessment of Legal Arguments (1962)

240

Appendix 10. U.S. Rent Payment Instructions (1973, 1974)

246

Appendix 11. Libertad (Helms-Burton) Act (1996)

249

Appendix 12. U.S. Rent Payment Documents (2006)

251

Notes

255

Bibliography

291

General Index

307

Index of Cases

315

PREFACE

Events at the U.S. naval station at Guantanamo Bay, Cuba, have generated numerous books and articles in recent years. Most focus on its use as a detention center in the U.S. fight against terrorism as viewed from various perspectives—human rights, government policies, and personal accounts. Yet a critical factor underlying everything that has occurred at Guantanamo Bay, the lease by which the United States has ongoing control over this piece of Cuban territory, has not previously been the subject of a comprehensive examination. This book seeks to fill that gap by focusing on the lease and the distinct legal status and political character it gave Guantanamo Bay. It aims to explain the history and workings of a state-to-state arrangement that is little-known but routinely mentioned in the legal and political discourse about U.S. antiterrorism efforts and U.S.-Cuban relations, and to be a useful tool in understanding the broader issues that arise from Guantanamo Bay’s presence as a distinct territorial phenomenon. Most of my previous research on the practice of territorial leasing has been oriented toward the viability of leases in resolving disputes about sovereignty—an admirable goal, and one that has worked in the few cases where it has been tried. This book shows how a leased territory can also be used by a state for bypassing the rules it sets for itself on its own sovereign territory through its system of laws. It starts with an overview of territorial leasing that borrows from, and expands on, my previous research and examines the Guantanamo Bay lease in this context. It explores the ambiguities and discrepancies contained in the lease, and looks at how it allowed Guantanamo Bay to fall outside the conventional legal frameworks of both the United States and Cuba—a quality that eventually became the territory’s primary value for the United States. As with other territorial leases, the Guantanamo Bay lease is simultaneously a political, a legal, and an historical arrangement. To maximize the usefulness of this book to readers in these varied fields, I have put references to law review articles in the same format as references to articles in

x

Preface

nonlegal journals, while retaining a standard legal citation format when referring to specific cases, legislation, and treaties. I wish to thank the people who encouraged this endeavor, notably those associated with the Centre d’Etudes Diplomatiques et Strat´egiques in Paris and the City University of New York School of Law; those who facilitated it once it was under way, including at Guantanamo Bay itself; and those who provided critical feedback on its content during preparation. I am also grateful to my family and friends, who have been uniformly supportive of this project. Anecdotally, I also wish to acknowledge the Biblioth`eque Cujas in Paris, where I was able to consult, among other things, Luis Machado y Ortega’s book on the Platt Amendment, which had been there for eighty-five years without a previous reader. Should the library’s foresighted acquisition program cause this book, too, to end up on its shelves, I hope someone reading it in 2094 finds it at least slightly worn. Michael J. Strauss January 2009

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INTRODUCTION

The unequal distribution of territory among states often results in competing claims to specific areas as the states’ evolving needs and interests put strains on the network of boundaries that contain them. On countless occasions this competition has led to war, but it has also been a force behind the development of international diplomacy that has spawned not only alternatives to war but also much positive cooperation. Territorial leasing is a product of this diplomacy that came into widespread use a century ago, and it still occurs today as a pragmatic approach to situations when one state desires rights on territory where another has sovereignty. International law recognizes state-to-state leases as a way to address territorial issues that arise with states and the space they occupy. Leasing creates a paradox for the modern international system of states, which developed from the Treaties of Westphalia of 1648. The system’s success derives from the ability of states to allocate the world’s territory among themselves, with each state having territory and no territory having ambiguity about the state to which it pertains. Territorial leases introduce this ambiguity by letting more than one state display aspects of sovereign authority in the same location. On the other hand, leased territories strengthen the system of states by reinforcing the integrity of its members. Leasing allows states to achieve territorial objectives without altering any boundaries. It confirms the existing distribution of territory and averts potential changes that might otherwise be realized by means that cause harm to the states. Territorial leases permit states to exercise control over defined areas without having sovereignty over them by way of a reallocation of sovereign rights. This gives the territorial entities created by leases distinct legal characteristics, and political ones as well. Yet leasing forms a peripheral theme in international law. It has been sparsely studied as a phenomenon relative to other aspects of it, and it is widely considered marginal,1 despite the prominent role that leased territories sometimes play in the system of states.2 Leased territorial entities can exist as part of the world order because of evolving notions of sovereignty, which is no longer considered as

2

The Leasing of Guantanamo Bay

absolute and indivisible as it was centuries ago. Some scholars continue to see sovereignty as a monolithic concept, indivisible in substance, but allowing for its exercise to be divisible into aspects that may be transferred.3 Others consider it to be a collection of rights or competences over territory.4 Together these rights form a coherent whole, but the collection does not have to remain static for the state to retain sovereignty— it may divest or add rights. Whether the divisibility of sovereignty is by exercise or by nature, it is this aspect that accommodates the concept of territorial leasing. Sovereignty has always been a fluid notion, changing with the evolution of states and their relations with each other and also with the evolution of external forces that act on states and pose challenges to how they exercise control. The absence of a universally accepted agreement on the nature of sovereignty ensures that territorial leasing, as a derivative notion, is also problematic. What allows it to occur in this context is its pragmatic aspect—states have found leases to be an expedient way to resolve certain problems or achieve certain goals related to territorial rights at particular moments in their history. The spread of territorial leasing ensured a place for it in the practice of states. Once a sporadic occurrence, the practice expanded rapidly toward the end of the nineteenth century, by which point there was a reciprocal awareness among states about their leasing activity. In their dealings with each other, they explicitly or implicitly acknowledged leased territory as such; in 1900, for example, the United States discussed the question of sovereignty over leased territories in China with Great Britain, Germany, Russia, France, Spain, the Netherlands, and Japan.5 As territorial leasing became an accepted part of the world order, it entered the realm of public international law through two different routes— treaty law and customary international law. As agreements between states, territorial leases would most commonly take the form of treaties,6 making them subject to the broad range of international legal norms that have developed over time with respect to treaty conclusion, execution, compliance, and termination, and also with respect to violations and their consequences. Meanwhile, the common behavior among states that leased territories came to represent brought the practice within the scope of customary international law, raised its legitimacy as a phenomenon of international relations, and secured a place for it within the system of states. Territorial leases in public international law are identifiable by having the general characteristics of leases in private law7 —each involves a transfer of rights, typically for a specified period of time, and typically in exchange for compensation, although the latter two elements are not always explicit or present. The rights flow from the state with sovereignty over the territory (the lessor) to the state that gains the use of them (the lessee). However, international law provides no standard model for leases, and

Introduction

3

this has kept their definition somewhat loose. Some that lack a specified duration or a compensatory element, for example, are similar to other leases in purpose and broad form and may even be called leases in the legal instruments that create them, fostering their acceptance in the legal and political discourse as territorial leases—an example being the lease of Hong Kong’s New Territories by Great Britain from China in 1898.8 Leased territories can exist for years without arousing special notice or controversy, but for some of them this is not the case. Each lease is tailored to address a different territorial situation with its own unique characteristics, and legal and political precedents may be largely lacking. The absence of such guidance, together with the legal and diplomatic creativity that occurs in its place, can result in an almost limitless variety of specific features and clauses and an ongoing stream of legal issues. A few leased territories have been highly prolific in this regard, and Guantanamo Bay, leased by the United States from Cuba in 1903, has been perhaps the most prolific of all. The lease’s creation, its terms, and its implementation all sparked questions of international and municipal law from its earliest years. Some of its provisions were ambiguous, others created jurisdictional issues, and the political dynamics of a strong state– weak state relationship have been a constant influence on compliance. In the last half century, the dramatic shift in U.S.-Cuban relations from close friendship to sustained tension added new legal questions. The flow of legal issues from Guantanamo Bay’s existence has intensified further since the 1990s as the territory was used for housing asylum seekers and prisoners in the U.S. fight against terrorism, and eventually led to a U.S. Supreme Court ruling in 2008 that strengthened the Constitution’s reach outside U.S. sovereign territory. All of this has made Guantanamo Bay an anomaly even among leased territories, one whose influence on legal systems and the behavior of states may be far from over.

CHAPTER 1 SOVEREIGN STATES AND THEIR TERRITORY STATES AND TERRITORY The State-Territory Relationship Legal and political scholars agree that a minimum of three elements must be present for a state to exist: territory, a population, and some form of selfgovernment.1 Many add a fourth criterion, the capacity to enter into relations with other states,2 although this is not universally accepted despite its endorsement by a number of states themselves.3 Of these elements, territory is the most fundamental, having been described as “the basic characteristic of a state”4 and the one that must be mastered for a state to have sovereignty.5 Territory associated with a state has four constituent elements—land, adjacent maritime zones, airspace, and subsoil—whereas the concept of territory in the broader sense also includes areas that are unoccupied (res nullius) or shared, such as the high seas (res communis).6 Because the earth’s land areas and their maritime, air, and subsoil extensions are all capable of having political, economic, and/or social value, most have become subject to the control of sovereign states amid the growth of the international system of states. Assessing the state-territory relationship is fundamental to an understanding of territorial leasing because, as Joseph Lazar notes, the practice of leasing unleashes a multitude of questions of international law: If the element of “territory” is essential for the existence of a “state,” does a “state” possess the legal capacity to “lease” some or all of its “territory,” for a limited term or in perpetuity, without thereby destroying its existence? Suppose that the “territory” in the transaction is occupied by some or all of the leasing state’s population. Does the “population” of the territory transfer along with the “territory”? If a “state” thereby loses territory and/or population, more or less, does this change destroy the “state’s” existence? Does a “state” have the juristic “right” or “power” to destroy itself through

Sovereign States and Their Territory

5

“leasing” transactions? Conceivably, a “state” may “cede” its territory after military defeat, or may become “merged” or “consolidated” with another “state” and thereby terminate its previous existence. However, are there juristic limits as to the extent to which a “state” may continue to be a “state” after “leasing” its “territories” and/or “populations”? Must there be “sovereignty” for the existence of a “state”? If “sovereignty” is of the essence of a “state,” then does this essence survive although a “state” has “leased” its “territory” and/or “population”? Does “sovereignty” exist as a juristic creation despite the termination of a “state” with or without its “consent”? What is meant by “sovereignty”? Does it “reside” in “people” or “ruler” or “organs of government” or “organic community” or in “nature” or “reason” or “will” or “force” or “state” or Nature’s Creator? If a subject of international law is party to a “lease” of territory, and such a party is endowed with “sovereignty,” does the “sovereign” party preserve, by definition of “sovereignty,” all of its “sovereignty” despite the “lease”? Or, are its “sovereign” characteristics subject to modification to the point of elimination? Is “sovereignty” destructible by “lease” or vice versa?7

The responses of international law to such questions are ultimately the product of how jurists have viewed the relationship between state and territory. This relationship can be addressed from legal, political, social, and geographical perspectives, and from these several main theories have emerged, all of which have, or at one time had, acceptance among legal scholars. 1. The territoire-sujet theory, or “subject theory,” in which territory is the essence of a state. This theory considers territory to be what a state is, rather than what a state has; territory is viewed as “the state personified,”8 or as “the state itself in what is called its territorial aspect.”9 It equates the existence of a state with an entire and intact territorial area that cannot be altered, for which it has drawn criticism from theorists who view a state as capable of evolving territorially. 2. The territoire-objet theory, or “object theory,” in which territory is the property of a state and the object of its power and exercise of sovereignty. This theory grew out of Roman law and was the dominant state-territory theory through the nineteenth century. It retained much of its appeal into the early decades of the twentieth century, with Hirsch Lauterpacht asserting in 1927 that it still dominated “owing to its intrinsic merits” in the face of newer theories,10 but that was not to last. Eelco Nicolaas van Kleffens claimed in the 1950s that the territoireobjet theory had few adherents left,11 and Nguyen Quoc Dinh et al. have more recently dismissed it as a theory of the past.12 Still, the writings of some modern jurists show that it still has life: Ian Brownlie, writing about territorial title, says that “in principle the concept of ownership, opposable to all other states and unititular, can and does exist in international law,”13 and P. K. Menon refers to territory as “territorial property of a state.”14 Giovanni Distefano argues that the territoire-objet theory is inadequate because the state-territory relationship is broader than that15 but acknowledges that it nonetheless captures part of the

6

The Leasing of Guantanamo Bay truth of the relationship16 by providing a plausible conceptual explanation of the activities that a state exercises on its territory, such as acquisition, cession, and administration.17

3. The territoire-limite theory, in which territory consists of the bounded geographical area within which a state can exercise power. This theory treats territory as a negating rather than an affirming concept. It has been criticized for not accommodating a state’s extraterritorial actions18 and praised for its recognition of a close, essential link between a state’s territory and its government.19 4. The space theory, which views territory as an element of a state where jurisdiction is exercised rather than as an object of the state’s domination. As described by Lauterpacht, “the state rules within the territory, not over it.”20 This theory arose in the nineteenth century but did not have much influence beyond the early decades of the twentieth century. 5. The jurisdictional or competence theory (Kompetenztheorie), which takes the statejurisdiction dynamic one step further by viewing territory as the area in which a state can exercise its system of laws to the exclusion of other states. This theory, which has become widely accepted in modern times, accommodates the coexistence of state sovereignty and private ownership and allows for the concept of federal states, prompting Van Kleffens to call it “undoubtedly the most satisfactory legal theory with regard to territory in the field of international law.”21 6. The Lebensraum or espace vital (“living space”) theory, in which territory is equated with an area that should be perpetually accessible to a state’s population for its preservation and development.22 This theory emerged in Germany in the 1890s and was ultimately discredited by the results of its aggressive execution by that state during World War II. Described by N. S. Timasheff as “an amplification of the principle of economic expediency,”23 it effectively lost its validity through the strengthening of the principle of territorial integrity. Nonetheless, it is noteworthy for having provided an intellectual justification, and perhaps even encouragement, for states to try to alter their territorial dimensions.

The practice of territorial leasing is most closely linked to the territoireobjet theory, whose popularity among legal and political thinkers of the day arguably laid the foundation for the proliferation of territorial leases that occurred as the nineteenth century ended and the twentieth century began. The lease of Guantanamo Bay in 1903 was part of this heightened activity. Modern references to territory as a state’s property, like those mentioned above, are evidence that this theory is still valid, but territorial leases provide the proof. Recent leases, as well as the ongoing compliance by states with older ones, show that the relationship between state and territory is generally accepted as one of owner and property—even if it is not the only way this relationship is perceived. Lauterpacht is thus shown to have been correct in asserting that there is, in fact, no ground for assuming that the science of international law will discard the analogy between territorial sovereignty and property in

Sovereign States and Their Territory

7

private law, even if it does not go to the length of identifying the two conceptions. The reaction against patrimonial ideas cannot obliterate the fact that the two notions are essentially analogous on account of the exclusiveness of enjoyment and disposition which is in law the main formal characteristic of both private property and territorial sovereignty. They belong, in juridical logic, to the same class of rights.24

The territoire-objet theory is not necessarily inconsistent with the jurisdictional theory, according to Lauterpacht.25 Even so, a territorial lease can undermine the jurisdictional theory by stripping a state of its ability to exercise its laws on territory where it has sovereignty. This, of course, is not an entirely clear-cut matter, as it is the state’s own sovereign status that gives it the authority to conclude a leasing agreement with another state—and the same status also confers the authority to terminate agreements with other states. A state’s loss of legal authority on its territory through a lease, therefore, is not necessarily irrevocable, even if the intention of the states may be to create a permanent situation, as is the case with some leases. As we shall see, the lease of Guantanamo Bay created an extreme example of a state, Cuba, losing the right to apply its legal system on part of its territory. Title to Territory Title to territory is the conceptual instrument that establishes and legitimizes the relationship between state and territory in international law, giving states legal competence on the territories where they are located. Rooted in the territoire-objet theory, it reflects the adaptation of the privatelaw notion of titulus, the legal means that establishes a right to a property, to international law.26 The term “title to territory” has no single definition—sometimes it refers to a state’s right to be associated with a particular territory and sometimes to the facts supporting that right.27 In 1986 the International Court of Justice broadened its meaning by ruling that title to territory can be considered any evidence that may establish the existence of a right or the source of a right.28 Title to territory is widely accepted as a prerequisite to sovereignty that has a bridging function between a state’s physical association with territory and its sovereignty over that territory. International law recognizes various means by which states have been able to secure this title: 1. Occupation—the acquisition of territory that previously did not pertain to a state (terra nullius).29 It requires the state’s intent to make its occupation effective, and a continual and peaceful display of authority.30 C. H. M. Waldock notes that “in modern international law occupation is the acquisition of sovereignty rather than of property,” entailing both rights and duties, and that simple settlement or exploitation of the territory is insufficient.31

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The Leasing of Guantanamo Bay

2. Prescription—the assumption and display of effective control over another state’s territory without consent.32 This control must last for a period of time. Because prescription involves a disputed situation, its occurrence may be the result of a legal ruling. Factors that can support a determination that title has been transferred by this means are acquiescence by the original title-holding state to the controlling state’s actions on the territory, and recognition of the controlling state’s title by other states.33 3. Cession—the peaceful acquisition of another state’s territory. This can result from victory in a conflict, agreements to sell or exchange territory,34 or the transfer of territory as a gift.35 The primary feature of a transfer of title by cession is that intent is displayed by both states.36 In addition, Malcolm N. Shaw writes that an orderly and agreed transfer of sovereignty in a decolonization process can be considered a form of cession.37 It should be noted that the term “cession” is sometimes used more loosely, reflecting the fact that it once also applied to transfers that were against the will of the original title-holding state38 ; older texts in particular tend to refer to any change in territorial title as a cession.39 4. Conquest—the acquisition of territory by force. Once a primary method of acquiring title,40 this is no longer the case since the Charter of the United Nations outlawed the use of force.41 Nonetheless, it can still occur through the illegal use of force or in cases where force is legitimately used in self-defense. When using force precipitates a change in control over territory, title does not shift automatically to the victor simply on the basis of this; international law today requires a subsequent act, such as a cession treaty or recognition by other states of the title transfer.42 5. Accretion—the acquisition of territory created by nature adjacent to a state, such as a new volcanic island or silt deposits in a river delta.43 6. Adjudication—the acquisition of territory through a judicial decision.44 Rulings of this nature tend to affirm rather than grant title, and Peter Malanczuk calls this a “doubtful” mode of territorial acquisition, as “a tribunal’s normal task is to declare the rights which the parties already have, not to create new rights.”45 Nonetheless, Charles Rousseau has cited cases in which arbitrators in territorial conflicts have been authorized to designate boundaries of their own choosing that may result in some territory being transferred.46 7. Conversion of an inchoate title—the validation of a title that is incomplete, such as one claimed symbolically, through a display of effective control.47 Actions that can give rise to an inchoate title may be symbolic or formal and can include discovery, taking possession, blessing a place, raising a flag, or agreeing on spheres of influence.48

The majority of these methods illustrate that title to territory can shift from one state to another, like title to property in private law. But additional factors come into play at the level of states, making the determination of title in international law more complex. One of these is the tacit or explicit recognition of a state’s claim to title by other states, and another is the strength of a state’s ongoing involvement with the territory in question.49

Sovereign States and Their Territory

9

Several legal rulings in the last century have established the latter factor as quite important. Among the most influential was the Permanent Court of Arbitration’s 1928 decision in the Island of Palmas Case,50 in which the United States and the Netherlands both claimed title to the island, located between the Philippines—which Spain had ceded to the United States after the Spanish-American War—and the Dutch East Indies. The sole arbitrator, Max Huber, found in favor of the Netherlands on grounds of its “continuous and peaceful display of state authority during a long period of time” during which Spain did not contest or protest it. He determined that their respective behavior made the Dutch claim to title stronger than Spain’s, and thus the island did not form part of the territory that Spain had ceded to the United States.51 Similarly, in the Eastern Greenland Case (1933),52 the Permanent Court of International Justice cited a “continued display of authority” in awarding the territory to Denmark over a challenge by Norway, and in the Minquiers and Ecrehos Case (1953),53 the International Court of Justice awarded the territory to the United Kingdom over France on grounds that the British had exercised jurisdiction and administrative activity. Effective Control Effective control over territory (a term associated with effective occupation54 or effective possession55 and close enough to be often used synonymously with them) is the measure that confirms a state’s dominant relationship with it. There is no single standard of state behavior that exists to confirm effective control, although direct involvement with the territory, particularly in an administrative sense, is a key factor.56 Shaw notes that “both occupation and prescription rely primarily on effective possession and control.”57 When title to a territory is disputed between states, their relative levels of control can be the most significant factor in the outcome, as the cases above illustrate. The same cases also show the influence of effective control on the intertemporal aspect of territorial titles, as it was once generally accepted that the applicable law for determining a title’s validity should be the international law in force when a state acquired territory, rather than any subsequent law.58 Brownlie considers effective control to be a legal relationship similar to possession in private law, in which a state’s activity strengthens what otherwise could be a tenuous connection between state and territory. In this regard, he notes that effective control does not require the actual settlement of a territory or a physical presence on it,59 a point Seokwoo Lee also makes in saying that “in practice, states regularly claim more territory than is occupied, but international law only recognizes reasonable extensions.”60

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The Leasing of Guantanamo Bay

Defining effective control as “proof of possession,” Brownlie holds that possession plays a significant role in affirming a state’s right to title when there is no treaty or judgment that provides a formal basis for title and when there is no system for registering title.61 According to Georg Schwarzenberger and E. D. Brown, effective control is shown by “the establishment of adequate State machinery and the actual display of State jurisdiction.”62 Some scholars argue that abandonment of territory also warrants consideration. The fact that a physical presence on a territory is not a requirement for effective control allows this question to arise, but the abandonment standard is problematic. Whereas R. Y. Jennings considers abandonment to encompass a “failure to maintain a minimum degree of sovereign activity,”63 Brian Taylor Sumner writes that “when the rightful sovereign acquiesces in the control of territory by the infringing sovereign, the requirement of abandonment is inapplicable altogether.”64 Nonetheless, abandonment is a factor in the determination of effective control because perceptions that it has occurred offer a motive for other states to claim their own relationship with the territory involved is one of effective control. “The lack of consensus on the applicable standards has resulted in many competing claims. Specifically, these claims have questioned the quantum of control required, as well as its quality,”65 Sumner says. The vital role of effective control in establishing title to territory has been universally recognized for some time. “It appears that by the nineteenth century the prerequisite of effective occupation for territorial acquisition had become conventional state practice,” according to Joshua Castellino and Steve Allen.66 Brownlie affirms that it can be an important step toward establishing sovereignty,67 and Shaw notes, with regard to a state’s legitimacy, that “the very fact of the establishment of effective control over the territory is deemed to be sufficient when accompanied by clear international acceptance.”68 Sumner notes cases in which the International Court of Justice has given priority to treaty law over effective control as factors in determining title to territory, such as its 1959 ruling in Sovereignty over Certain Frontier Land (Belgium-Netherlands)69 and its 2002 ruling in Land and Maritime Boundary (Cameroon-Nigeria).70 However, the court has been more prone to use effective control as its basis for decisions, having “demonstrated a preference for effective control justification over equity infra legem.”71 As we shall see, territorial leases have an impact on effective control because they rearrange between states the various activities by which control may be determined. On many leased territories, including Guantanamo Bay, the lessee state is more visibly active than the lessor in exercising rights or control. Such situations can raise questions about which state ultimately has title.

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SOVEREIGNTY AND ITS ASPECTS The Concept of Sovereignty Title to territory and effective control are inextricably linked to the concept of sovereignty. In the absence of a universally agreed-upon definition, sovereignty can be viewed as being, in essence, authority. Initially associated with the power of individual rulers, from Japan in the seventh century to Europe in medieval times, it eventually came to be applied to states, with the word at first being a synonym for supreme authority— sovereignty was “the absolute and perpetual power of a Republic,” Jean Bodin wrote in 1579. This meaning became less absolute over time, and by the twentieth century its weakening was embodied in Raymond Carr´e de Malberg’s reference to sovereignty as “a certain degree of power.”72 Today the term represents the legal and political authority of the state as an actor in the modern international system of states. Although states may no longer have a monopoly on sovereignty as the result of authority vested in intergovernmental bodies or arising from non-state actors through technology and globalization, the term as used here will refer to states, as they remain the overwhelmingly dominant holders of sovereign power and the primary actors in international law. A critical attribute of sovereignty is that, like the state, it transcends changes in government. “Rulers come and go, governments end and forms of governments change, but sovereignty survives,”73 John Alan Cohan writes. Even when restricted to states, the notion of sovereignty has been sliced in a variety of ways by those seeking to understand and explain it. Applications of sovereignty are said to range from internal to external,74 its characteristics have different meanings from legal and political perspectives,75 and its aspects are both positive and negative in nature. Moreover, the terms positive and negative are used in multiple ways with regard to sovereignty. Shaw refers to a state’s exclusive competence on its territory as a positive aspect and the obligation to protect the rights of other states as a negative one.76 Huber, the arbitrator in the Island of Palmas Case, refers to a state’s exclusion of other states’ activities on its territory as being the “negative side” of territorial sovereignty.77 Jean-Jacques Roche, viewing sovereignty from an international relations perspective, cites Robert Jackson in referring to “positive sovereignty” as a state’s capacity to control its own destiny and “negative sovereignty” as the inability of states (such as those arising from decolonization) to create the political and social structures needed to compete internationally.78 Winston P. Nagan and Craig Hammer cite no fewer than twelve distinct but overlapping meanings of sovereignty vis-`a-vis states,79 and Michael

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Ross Fowler and Julie Marie Bunck note that the meaning “varies according to the issue that is being addressed or the question that is being asked.”80 The concept of sovereignty is also mired in “chicken-or-egg” situations. Scholars disagree on whether sovereignty derives from a state’s power over territory81 or whether power over territory is justified by the sovereignty that a state has.82 Cohan writes that states must exist as a prerequisite for sovereignty: “Once a territorial entity has secured for itself certain borders, a reasonably stable population, and a government that garners some measure of recognition within, this state of affairs results in statehood, not sovereignty. Sovereignty is a consequence of statehood, but once a state is born sovereignty does not always follow. Statehood is a necessary but not sufficient condition for sovereignty to manifest.”83 Fowler and Bunck maintain that the international community confers the status of sovereignty through the political act of recognizing a state but acknowledge that it is an open question whether sovereignty is required for recognition or vice versa.84 In a related vein, the broad acceptance that title to territory is a precondition for sovereignty has not impeded suggestions that the reverse is true. Huber’s judgment in the Island of Palmas Case mentions title to territory as being able to confer territorial sovereignty,85 but later in the same decision he notes that title can be “founded on continuous and peaceful display of sovereignty.”86 In the matter of territorial leasing, sovereignty is an ever-present concept. It must be considered during the negotiation of a lease, throughout its period of implementation, and when it terminates. During all of these phases, sovereignty itself may be a “moving target” as perceptions of international jurists evolve. Sovereignty does provide territorial leases with one constant, however: regardless of how widely leases may vary in their specific terms, each lease involves an acknowledgment that one state is the sovereign over the territory in order for the other state to become the lessee. Internal and External Sovereignty Despite its ambiguities, sovereignty can be broadly summarized as the totality of a state’s exclusive authority within its territory (known as internal sovereignty) plus extensions of that authority outside it (external sovereignty). This dual character recalls the importance of the stateterritory relationship, as sovereignty is linked to the state’s territorial element. Internal sovereignty can be regarded as the full range of competences that a state has within the territory to which it has title, including the power to exercise these competences as it desires,87 to the exclusion of

Sovereign States and Their Territory

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other states. Regardless of whether sovereignty begets power or vice versa, internal sovereignty is closely associated with effective control, and the judgment in the Island of Palmas Case established a practical link between them—it notes that territorial sovereignty involves “exclusive rights to display the activities of a state” but accommodates variations in these displays according to time and place. “Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of a territory,” Huber declared.88 Internal sovereignty is characterized by two main features—the range of competences that a state has and the exclusivity with which the state can exercise them.89 According to Nguyen Quoc et al., the competences of a state within its territory fall into three categories90 : 1. State functions, which can include everything from the formulation and application of a constitution and a system for establishing laws and regulations to the exercise of very specific functions for maintaining a social, judicial, and economic order. 2. Authority over natural and legal persons, which covers the population as well as incorporated entities within the territory. This authority covers not only their activities but in the case of incorporated entities their creation and termination as well. It extends to people and entities that originated outside of the state for the period in which they are present on the state’s territory. 3. Authority over natural resources and economic activity, which covers all physical attributes of a state’s territory and the dynamics of the institutions and systems that exist in the state.

The other feature characterizing internal sovereignty is that it is exercised exclusively by the state itself, independently of other states, using the means it has available—its systems of governing, legislating, regulating, administering, and making legal judgments.91 By exercising its competences in an exclusive manner, a state shows its ability to control its territory and what occurs on it—in other words, it displays its legal independence from all other sovereign states.92 Equipped with such authority, a state may allow other states and their nationals to engage in activities on its territory, and equally it may prohibit other states and their nationals from engaging in such activities. It can thus act to protect its territory in line with the principle of territorial integrity and to enforce the related principle of noninterference by one state in another’s affairs. The latter principle is the main tenet of what some scholars call Westphalian or Vattellian sovereignty.93 External sovereignty encompasses a state’s display of rights and competences in territories where it does not have title. These are often rights that a state exercises on the territory of other states by virtue of consent, but they also include competences that a state can assume in connection

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with military activity that it undertakes outside its territory, or in connection with its participation in international organizations that generate and exercise multilateral authority on the territory of participating states. According to Nguyen Quoc et al., there are three general categories of external sovereignty94 : 1. Minor competences outside state borders, including those exercised exclusively by a state and those exercised collectively with others. These competences can arise when territory outside of a state’s boundaries is leased or otherwise covered by a servitude in favor of the state, occupied militarily by the state, or subject to complete or partial administration by the state (either alone or jointly with other states). They can occur in cases of protectorates and with territory that is subject to the guardianship of a state or an international organization of which the state forms part. 2. Authority over natural and legal persons, when persons associated with a state are physically outside of the state’s territory. This includes a state’s competence to define its nationals (and to grant and revoke nationality) and the range of interactions it has with them outside of its territory (e.g., administratively, as with taxation issues, or militarily, as in protecting nationals or subjecting them to conscription). 3. Competences relating to public services. These include a state’s authority to conduct administrative or military activities outside of its territory in support of the interests of the state, its government, or nationals, in agreement with the “host” state. Such activities include diplomatic, consular, business promotion, and cultural functions and the stationing of military and security forces abroad.

A state’s ability to display sovereign authority both inside and outside its territory reflects the principle that a sovereign state, in addition to being independent, has legal equality with other sovereign states. Whereas principles of international law and international relations generally coincide, this legal principle is not matched in the political sphere. In the latter, according to Wiktor Sukiennicki, “there exist large states and small states, strong states and weak states, there will probably never be two states that are absolutely equal.”95 Also, notes Van Kleffens, “it seems quite unnecessary to emphasize that this equality before the law stands out in striking contrast with the facts of international relations. The great powers have, by their mere factual power, a tremendous advantage over the smaller powers, and that advantage makes itself felt even when it is not being used on purpose.”96 Even so, the notion that sovereignty qualifies a state to have legal equality with others facilitates the functioning of the modern international system of states. According to Roche, this legal equality provides a sovereign state with the ability to conclude treaties and other agreements, have diplomatic relations, assume reciprocal responsibilities in the international sphere, participate in international organizations, enjoy certain

Sovereign States and Their Territory

15

immunities of legal jurisdiction, and have its sovereignty respected.97 Van Kleffens adds that it also allows for states involved in legal cases to be considered as equals before international courts or arbitration bodies.98 Moreover, the principle of equality has a corollary in the principle of reciprocity, which holds that a state’s manner of conducting relations with another state and its nationals is reciprocated in kind, to the extent that both states are capable of doing so.99 The Matter of Recognition The principles of equality and reciprocity are both associated with recognition, the act of validating the sovereignty of a state over territory. The territory subject to this recognition may comprise the state itself, or it may include specific areas that are attributed to a state after previously being undetermined, disputed, or transferred between states.100 Sovereignty is considered an inseparable part of a state,101 and because an aspect of sovereignty is the right to recognize another entity as a state,102 it is up to sovereign states to determine if an entity has the basic attributes of a state and should be considered one of them. Naturally, they do not always agree—recognition of a state (like recognition of its government, a separate matter) is a political decision as well as a legal one that has consequences for both the recognizing state and the candidate for recognition.103 Stephen D. Krasner notes that the political aspect allows the very act of recognizing a state to generate limits on its sovereignty, as with states in the Balkans that gained recognition from other European states in exchange for agreeing to limit their domestic competences.104 With recognition, a state is accepted by other states in the international system as an equal. Two theories have emerged among scholars to describe the concept: the constitutive theory, which holds that recognition is necessary for a state to become a subject of international law, and the declaratory theory, which considers recognition as a political act that acknowledges the factual situation of a state’s existence.105 The declaratory theory came to be prevalent, having received a further impulse from events in the early 1990s that followed the breakups of the Soviet Union and Yugoslavia. “Recognition of states is today (1992) more of an optional and discretionary political act than was thought to be the case only a year ago,” writes Roland Rich. “Since the outbreak of the war in Croatia and the defeat of the coup in Moscow in August 1991, the international community has seen a plethora of practice in terms of recognition of states.”106 Recognition is, therefore, not one of the basic requirements for a state to exist. This is reflected in two documents that have become influential in international law—the Montevideo Convention on Rights and Duties of

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States of 1933 and the Restatement (Third) of Foreign Relations Law of the United States, published in 1987. According to the Montevideo Convention: The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts. The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law.107

Nearly the same wording was incorporated into the Charter of the Organization of American States in 1948.108 Likewise, the U.S. Restatement says that an entity that satisfies the requirements for being defined as a state “is a state whether or not its statehood is formally recognized by other states.”109 Regardless of whether a state is recognized, however, its existence cannot be denied from a legal perspective. As Malanczuk points out, an unrecognized state that exists in a de facto sense is still subject to many aspects of international law.110 Similarly, Shaw writes that states that decide not to recognize other states for various reasons “rarely contend that the other party is devoid of powers and obligations before international law and exists in a legal vacuum,”111 and Eric Ting-Lun Huang notes that the practice of states is to accept the “legal existence” of entities that are not recognized as states.112 This became necessary for the maintenance of the international order as the declaratory theory took hold, as the theory implicitly accepts that nonrecognition is one way that states can behave toward territorial entities. A failure to bring such entities under international law in some form would create the potential for some of the world’s territory to be outside its reach. This, in turn, could undermine international law itself, because entities that behave outside its norms are sometimes denied recognition as states for that very reason. The U.S. Court of Appeals for the Second Circuit summarized this situation in Kadi´c v Karadˇzi´c: “Recognized states enjoy certain privileges and immunities relevant to judicial proceedings . . . but an unrecognized state is not a juridical nullity. Our courts have regularly given effect to the ‘state’ action of unrecognized states,” it said, adding that customary international law (in this case, human rights law) “applies to states without distinction between recognized and unrecognized states. . . . It would be anomalous indeed if nonrecognition by the United States, which typically reflects disfavor with a foreign regime—sometimes due to human rights abuses—had the perverse effect of shielding officials of the unrecognized

Sovereign States and Their Territory

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regime from liability for those violations of international law norms that apply only to state actors.”113 By associating a state with a territorial area over which it has effective control, title, and sovereignty, recognition can be said to acknowledge a state’s “core” territory around which additions or subtractions of territory may occur through legally legitimate shifts of title. This occurs without affecting the state’s existing status of being recognized, and with territory newly added to a state becoming “covered” by the recognition that the state already enjoys. Seen another way, recognition can legitimize the fact of sovereignty over a defined area shifting from one state to another, a point that is particularly relevant for leased territories. As we shall see, they are susceptible to shifts of title between the lessor and lessee states by virtue of the reallocation of sovereign attributes that characterizes them. Limits on Sovereignty When sovereignty was envisioned as absolute authority, it was considered indivisible, unable to be fragmented.114 Although sovereignty is no longer viewed as absolute, many scholars still consider it indivisible in substance while allowing for the exercise of sovereignty to be divisible.115 This view allows sovereignty to be regarded as something that either exists or does not exist but that cannot partially exist—something Fowler and Bunck have recently termed the chunk theory. A competing view, which they call the basket theory, holds sovereignty to be the sum of a potentially variable set of state competences. This allows states to supplement or trim their “total” sovereignty by adding or divesting individual competences116 and permits a situation in which “some states can be more sovereign than others.”117 The divisibility of competences, whether through the exercise of sovereignty or by its nature, yields the notion that sovereignty can have limits. This notion is supported by the existence of external sovereignty, as a state’s exclusive authority over its territory is necessarily diminished when another state can exercise a sovereign right on it. Such limits can apply to the scope, degree of detail, and manner of execution of a state’s competences. They can be either horizontal limits, deriving from a state’s coexistence and interdependence with other states, or vertical limits, deriving from a state’s acceptance of legal or other international norms of state behavior. Some limits reduce a state’s ability to act on its territory while others create additional obligations, such as protecting the rights of other states’ nationals. For the most part, however, limits on sovereignty are minor relative to the total amount of a state’s sovereign authority—F. A. V´ali has called them necessary exceptions to the principal rule of “unrestrictedness.”118

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A state’s acceptance of limits on sovereignty allows it to share its rights and competences. The sharing can be internal (as with federal states, in which different levels of authority may each have certain sovereign competences) or external (as when two or more states have co-sovereignty in a territory). The degree of sovereignty that a state possesses ultimately can be attributed to various intertwined factors: the type of state, its specific circumstances as a state, international commitments and organizations to which the state adheres, international law, and the impact of globalization and technology on the state.119 A state typically tolerates limits on its sovereignty in exchange for benefits that may be political or material. When a state accepts these limits, it does not necessarily risk losing sovereignty, although this can occur if the limits are so broad as to prevent the state from maintaining effective control over its territory. Paradoxically, limits on sovereignty can also strengthen it. “What is frequently misconstrued by observers as the erosion of sovereignty may in fact contribute to its promotion and enhancement through properly calculated decisions,” according to a former Canadian foreign affairs minister, Bill Graham.120 Indeed, a state’s sovereignty is capable of withstanding a number of specific limits without deteriorating, and there are various ways this occurs: 1. Implicit reconfirmation of a state’s core sovereign status. States implicitly recognize the underlying sovereign status of other states with which they sign treaties, even when a treaty constrains elements of a state’s sovereignty. 2. A limit on one aspect of sovereignty may be offset by a gain in another. States may exercise reciprocal authority on each other’s territory or join an international process that creates limits on the sovereignty of all member states while giving each one a role in the mechanism that replaces it. 3. A non-sovereign benefit may enhance a state’s sovereignty. When the benefit of accepting a limit on sovereignty is not sovereign in nature (e.g., political, material, or financial compensation), it can be seen in sovereign terms if it reinforces a state’s ability to effectively control its territory. 4. A state retains its sovereign competence to withdraw from a restrictive arrangement. This competence is displayed by renouncing a treaty or leaving an international organization. 5. A state automatically regains a relinquished element of sovereignty upon termination of the limit. This occurs when a treaty is renounced or expires, when a state leaves an international arrangement that entails limits on its sovereignty, or when such an arrangement is disbanded.

Limits on sovereignty provide the groundwork for the existence of geographical entities that have specific legal characteristics and form part of the international system of states, but that are not states themselves. These include condominiums, where states share sovereign rights equally and

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collaboratively over the entire territory; joint management zones, where states share some aspects of sovereignty while others remain vested in each state; and leased territories. The last of these reflect what Cooley has called “exchange sovereignty”—the splitting of sovereignty into an ownership aspect and an assignable right to use the territory as an asset.121

CHAPTER 2 THE NATURE OF TERRITORIAL LEASES TERRITORIAL LEASES AND SERVITUDES Adaptations from Private Law Territorial leases and servitudes are notions that are poorly defined in international law, having lost much of the precision they enjoy in private law as states have adapted them to their own behavior. Indeed, the terms “lease” and “servitude” are used loosely and sometimes interchangeably in the international legal context. Each has been described by different legal scholars as a “right,”1 and Carl Walter Young laments that “international political leases are only confused by reference to them as servitudes.”2 In Jean Perrinjaquet’s view, “the word is of little importance to us when the thing is identical, constituting a temporary annexation, a contractual renunciation by a state of its rights on a part of its territory,”3 and V´ali likewise concludes that “the centre of gravity lies in the proper source of international legal relations and not in the name which has been conferred upon them.”4 Yet words are important in this context. When leases and servitudes between states are simultaneously equated with and differentiated from each other, and when differentiations vary so much that some are the inverse of others, entire studies of leases get produced that barely discuss servitudes5 while being about servitudes as others see them—and vice versa.6 Because individual perspectives have prevailed over the coalescing of a common view of what these phenomena are in international law, it is no surprise that contradictions abound in addressing the issues they generate. They clearly go in tandem, but what is less clear is the character of their link and whether it is tight or tenuous. It thus becomes necessary to elaborate working definitions that allow us to regard leases and servitudes between states as identifiable phenomena, while being able to cover the range of questions that arise from their

The Nature of Territorial Leases

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existence. With this aim, and mindful that the debate over terminology is unlikely to be resolved here, we shall consider a territorial lease to be a legal instrument (a treaty or other agreement) that establishes sovereign rights for one state on the territory of another, while the rights comprise a servitude that effectively limits the sovereignty of the lessor state and extends the sovereign competences of the lessee state. Using these general definitions, we can proceed with our discussion. The details of state-to-state leases and servitudes frequently cannot be reconciled with those of their private-law counterparts. The principles and rules for leasing property may be highly developed in municipal legal systems, but they vary widely from one municipal system to another, and there are no universal standards for individual elements of lease agreements. Moreover, the use of the term “lease,” even in municipal law, has never been globally consistent—it can refer to a conveyance, associated with the notion of property; to the obligations of the parties, associated with the notion of contract; or to the instrument that creates the arrangement.7 Commenting on territories leased by Russia in China, S. A. Korff states that “for a long time international lawyers did not know how to construe this new set of facts, nor how to fit it into the general system of international law. The German jurists with the same problem before them in Kiaochow, where similar legal forms were used, created a special idea of their own, ‘the public law lease,’ to which they really applied the system of the civil law lease in use in most countries of the civilized world. This same theory was made use of by the Russian jurists.”8 Despite the ambiguity, however, the recognition of the lessor-lessee relationship transcended private law and public international law. “To this extent the term ‘lease’ is a general conception of law” that retains this character when used in a treaty between states, according to Lauterpacht.9 Indeed, the rights that comprise an international servitude parallel those in private law when one considers that the authority in each case— ownership in private law and sovereignty among states—is divisible into component rights such as that of usufruct and that these components can be transferred. A state can thus give another state the right to exercise sovereign competences on its territory without automatically losing its own sovereignty over it.10 But property owners and states are fundamentally different entities, and their behavior is driven by different needs. So while property ownership itself, not just its component rights, is transferable in private law, sovereignty is presumed to be a permanent feature of an equally permanent state and its territory.11 In addition, Rousseau notes that property owners have rights that are established for their exclusive interest while states have sovereign rights in order to carry out certain functions and achieve certain goals.12

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The divergence between private-law and international leases and servitudes can be seen in some of their features, prompting Raymond Elvin to argue that leases in public international law ought to be based only on rules that are common to private-law leases everywhere and not on rules that vary among municipal legal systems. “In the matter of subletting that which has been leased, the various systems are not agreed whether the lessee has the right to sublet. In German and Japanese jurisprudence the lessee is not accorded the right to sublet unless that right is expressly stated in the contract. In the Roman, English, and French systems the lessee has the privilege of subletting if there is no clause in the contract prohibiting. The student of international law, accordingly, cannot afford to ignore the conception of leases in private law, but he must, nevertheless, be on the alert lest he apply rules which are only partially and not generally true,” he writes.13 Likewise, some private-law systems allow leases to confer rights that survive changes in property ownership, but many restrict leases to be made “for life, for years, or at will, but always for a less time than the lessor hath in the premises.”14 As a result, permanent leases are relatively uncommon in private law, and in many jurisdictions they are prohibited.15 Yet as states intend to exist forever at the time they create territorial leases, it is not uncommon for these arrangements to specify a duration of perpetuity. The implications of this duration for the final disposition of the leased territory, which we shall consider shortly, are considerable enough that Elvin categorizes territorial leases by whether or not they are perpetual.16 The notion of permanence fits neatly with the widely held view that servitudes are, by nature, permanent rights,17 but in practice states often shun the option of permanence when creating territorial leases and servitudes, as this could heighten the risk of eventual transfers of sovereignty. Thus, while some rulings in cases of state succession have required successor states to continue servitudes created by their predecessors,18 this has not been universal, and there is still validity to the century-old observation by Pierre-Paul Fabre that “servitudes are permanent or temporary, depending on the convention that created them.”19 It should be mentioned in this discussion that a state may, of course, act as the owner or lessee of property in another state under private law. These are activities that are governed by the municipal law of the state in which the property is located, and thus they will not be considered here other than to briefly acknowledge their existence. With this kind of relationship, the state as property owner or lessee is not afforded rights beyond those granted to other property owners or lessees (although it may have additional rights, such as sovereign immunity, that apply throughout the other state, including on the property involved).20 Helen Dwight Reid notes that “a mere property right possessed by one

The Nature of Territorial Leases

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state within the territorial limits of another . . . is not an international servitude.”21 Servitudes and Their Objectives Leases and servitudes typically arise in the practice of states as ad hoc solutions to situations regarding territory. Each case has a unique profile that reflects its objectives, the amount of territory involved, and the nature and extent of the territorial rights that flow from the lessor state to the lessee state. There are various reasons why leases and servitudes are chosen as the means for achieving these objectives over the other obvious option, territorial cessions. These can range from the political to the practical—a cession may be considered too disproportionate relative to the importance of the territorial issue, or too definitive if the issue is perceived as temporary, or it may simply be too difficult to negotiate successfully. Leases and servitudes allow states to keep potentially contentious issues regarding territory from becoming open conflicts and are among the ways that states safeguard their territorial integrity—and by extension, the integrity of the international system of states.22 A lease-and-servitude arrangement between states has the aura of a private-law contract, and the resulting connotations may keep issues pertaining more directly to sovereignty from arising in the states’ domestic politics or international relations. At the same time, each state can claim a legal association with the territory in question that gives the state some form of control over it while addressing its interests. This particular aspect was noted by Reid in connection with a servitude contained in an 1816 boundary treaty that gave the Netherlands mining rights in the territory of Prussia: “I refer to its politically non-controversial character,” she wrote, adding that “when litigation arose nearly a century after the creation of the right, it was not in the form of an international dispute, and the decision rendered was by the court of one contracting party . . . without diplomatic negotiation between Holland and Germany.”23 Even so, issues pertaining to sovereignty over the territory covered by a servitude are present at the servitude’s creation and typically last throughout its existence. It is often the case in such an arrangement that the dividing line is not clearly defined between the sovereignty retained by the lessor state and the sovereign rights obtained by the lessee state, particularly if matters arise over time that are not foreseen by the arrangement but that must be resolved within the context of it. It is here that the potential arises for effective control over the territory to slip from one state to the other, giving rise to notions among some legal scholars that international leases and servitudes are “temporary cessions of territory,”24 a phrase that highlights the importance of duration,

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The Leasing of Guantanamo Bay

or that they are “disguised cessions” with “all of the effects of an ordinary cession.”25 We will explore these notions in more detail below in discussing the territorial leases that establish the servitudes. International servitudes do not fit neatly into accepted concepts of sovereignty: they are, by their very nature, deviations from such concepts. An example of the complications that can arise concerns the view that was once widely held among scholars that an international servitude is permanent by nature: if neither the lessor state nor the lessee state has ultimate control over the territory involved and never will because of the servitude’s permanency, the fundamental nature of sovereignty itself is thrown open to question. Nonetheless, most scholars have adopted Reid’s contention that a servitude does not and cannot derogate from the sovereignty of the lessor state because “the very existence of the grant is conclusive evidence of (its) possession of the power to make it.”26 Moreover, Reid states that a servitude may actually safeguard sovereignty “by permitting a foreign state to exercise the rights necessary to its own interest . . . without modifying the nationality of the territory in question. For instance, there are only two ways of assuring permanent and uninterrupted access to the sea for the benefit of a landlocked state: one is the actual cession of a strip of territory connecting it with the coast; the alternative is the grant of a servitude of passage, leaving intact the territorial sovereignty of the neighboring states.”27 The difficulty in reconciling a servitude with sovereignty was highlighted by the North Atlantic Coast Fisheries Case of 1910, in which the United States and Great Britain disputed whether the United States had the right to fish in British North Atlantic waters under an 1818 treaty by virtue of a servitude. The arbitrators referred to the doctrine of servitudes being “little suited to the principle of sovereignty which prevails in States under a system of constitutional government such as Great Britain and the United States, and to the present international relations of sovereign States.” In light of this, it judged, the servitude claimed by the United States could only exist in the presence of what amounts to a lease: “It could therefore in the general interest of the community of nations, and of the Parties to this treaty, be affirmed by this Tribunal only on the express evidence of an international contract.”28 In the event, no lease existed and the tribunal ruled against the United States.29 One can distinguish a number of features that are common to servitudes at the international level (most are equally applicable to territorial leases as defined here), observable by their presence in the actual practice of states30 : 1. Components—An international servitude involves at least two states and one defined area of territory, except in cases when an international organization is a party to the arrangement.31

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2. Interests—Each state involved in a servitude has an interest in the territory concerned, e.g., a claim of sovereignty or a desire to exploit the territory’s resources. 3. Benefits—Each state involved in a servitude derives a benefit from the arrangement. The lessee state has the right to display competences on additional territory, while the benefit for the lessor state is usually nonterritorial in nature.32 4. Boundaries—The boundaries of the states involved in an international servitude do not change. 5. Location—The territory involved in an international servitude is entirely within the lessor state. 6. Size—The territory covered by a servitude is normally smaller than, but can be equal to, the territory of the lessor state.33 7. Legitimacy—For each state involved, an international servitude reflects a legal connection with the territory covered by the arrangement. 8. Sovereignty issues—The lessor state’s sovereignty over the territory covered by a servitude is affirmed in the lease that creates the servitude, while the lessee state is entitled to display a defined range of sovereign competences on that territory. 9. Mutual will—An international servitude reflects the will of the states involved to have such an arrangement as opposed to other types.34 Malanczuk describes it as one state allowing part of its territory to be controlled by another state,35 while Reid says servitudes “are not necessarily, nor even usually, burdens laid upon one nation by another, solely for the latter’s benefit; they are rights, often of great mutual value, and freely granted by one nation to another.”36 10. Character—A servitude is normally “negative” insofar as it restricts the lessor state’s competences on part of its territory, but it may also be “positive” in the sense of requiring either the lessor or the lessee, or both, to exercise competences on behalf of the other. 11. Creation—A servitude is created by a treaty or other agreement between states—i.e., the lease. 12. Duration—A servitude may exist for a limited period or it may be permanent, reflecting the intentions of the states as set forth by the lease. 13. Onward transfer of rights—A lessee state that has sovereign competences on a territory covered by a servitude may, within the scope of these competences, transfer rights on that territory to another state or back to the lessor.37

The scope of potential objectives for servitudes is limited only by the range of states’ competences and activities on territory. Most servitudes can be described as economic, military, administrative, or diplomatic, although an individual servitude often fits into more than one category. There is no particular juridical value to these distinctions, although they are useful for understanding the phenomenon. Servitudes with economic objectives have had the broadest history; Reid calls them “potentially, at least, an important means of exploiting

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The Leasing of Guantanamo Bay

the world’s resources, altering their distribution as determined by nature and national boundary lines.”38 These can involve the right of one state to exploit natural resources on the territory of another state, or to pursue economic activities like livestock farming or fishing on another state’s territory. Other economic servitudes are meant to facilitate transportation or trade and commonly involve one state having transit rights on a waterway, railway, or road that is located in another—typically adjacent— state.39 Military servitudes generally involve rights of states to maintain bases, fuel depots, firing ranges, or missile-launching sites on the territory of other states, or to maintain or move troops through other states. V´ali has noted that military servitudes can be based on temporary situations involving a balance of power or political configuration and thus tend to have shorter life spans than economic servitudes.40 Servitudes that entail one state having administrative rights on another state’s territory comprise the third main group, with the competences of the lessee state sometimes comprehensive enough to emulate those of a sovereign power, including legislative and juridical rights on the territory involved.41 There is much overlap with economic and military servitudes, as such motives are often behind their existence. It is with administrative servitudes that issues of jurisdiction are most prominent—the question of jurisdiction must be addressed as a fundamental aspect of administering a leased territory, but this occurs with varying degrees of detail. Diplomatic servitudes are perhaps the most common today, as states routinely limit the sovereign rights they may exercise on small parcels of their territory where other states maintain diplomatic missions.42 Occasionally, servitudes have existed for other purposes. These include the settlement of disputed claims of sovereignty over the same territory,43 or the unique purpose that the Guantanamo Bay servitude assumed in the last few years; originally established with aims that were strictly military, it became valued as an extrajursidictional zone where activities may occur that are not subject to the legal systems of either the lessor state or the lessee state. Territorial Leases The concept of territorial leases emerged long before the existence of modern states. Political agreements between autonomously governed valleys in the Pyrenees Mountains during the late medieval period, for example, often involved one valley granting pasturage rights to a neighboring valley in exchange for regular payments,44 resolving a chronic problem of insufficient grazing land for the livestock that sustained their economies. These arrangements were often incorporated into broader peace and economic accords between the valleys and proved so viable that remnants

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of them still exist today—including at the state level between France and Spain. Yet these and similar agreements that emerged in other places were little known outside their immediate regions. As the international system of states emerged and international law developed, state-to-state leases of territory began appearing on a sporadic basis. The practice remained uncommon45 until the late nineteenth century, when the occupation and administration of Cyprus by Great Britain and Bosnia and Herzegovina by Austria-Hungary in 1878, under arrangements in which the Ottoman Empire retained sovereignty of both territories, propelled the concept to prominence.46 Leasing activity between states increased and proliferated into the first years of the twentieth century before losing popularity, but after World War II the practice was revived as states expanded their networks of military bases.47 Elie van Bogaert made the point that “leases seem to be the practical formula for covering a diversity of situations” involving the territory of states.48 This diversity is reflected in the leases themselves, according to Hanna Danwall, who notes that all international territorial leases “are distinct in wording and effect.”49 Alexander Cooley observes that “the exact terms of use rights within any leasing arrangement will be subject to bilateral negotiations, bargaining, and contractual renegotiations.”50 It is not unknown for a lessee state to try to obtain sovereignty over a territory where the shift of rights leaves the lessor state so sidelined that it risks losing title to the area. The 1903 treaty in which Panama authorized the United States to act as if it were sovereign in the Canal Zone51 prompted divergent views within the American government about “whether the grant in the treaty amounts to a complete cession of territory and dominion to the United States, or is so limited that it leaves at least titular sovereignty in the Republic of Panama.”52 The Guantanamo Bay lease is another for which this risk exists53 —and as we shall see, the fact that the United States has not sought sovereignty over the territory is critical to the legal questions that have arisen in recent years. Lessee states have sometimes wrested title to leased territories from lessor states by virtue of assuming effective control. The opportunity for a title shift may be a political or military event, as when Great Britain annexed Cyprus during World War I.54 Likewise, it may come about through relative displays of control, because a lessor state that is sufficiently passive on the territory covered by a servitude risks losing title to it. Leon Yang suggests that no events may even be necessary to cause a transfer of title if a territorial lease is made in perpetuity, as some are. However, whereas he argues that a perpetual duration alone is enough to cause a lease to be a cession, he says this more in a theoretical sense rather than in describing the actual practice of states—which generally has been to the contrary—and recommends against taking such terminology in a lease literally.55

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Because territorial leasing provides an avenue for the potential transfer of title and sovereignty, the preservation of these becomes a critical factor for the lessor state once it determines that a lease is in its interest. Indeed, it has long been debated whether territorial leases, by their very nature, actually constitute cessions. French legal scholars taking this view at the start of the twentieth century referred to leases as “disguised cessions”56 or as a step toward annexation,57 and the British territorial lease negotiator Lord Curzon noted that “the tendency of leases is from being temporary to become permanent, and, in fact, to constitute a rudimentary form of ulterior possession.”58 In the United States, Amos S. Hershey wrote that “there are several forms of cession which have been aptly described as disguised, veiled, or indirect cession,” and he included in this category “various leases of territory.”59 George Grafton Wilson, on the contrary, asserted that “sometimes the distinction between transfer of sovereignty and a lease by international convention differs little in actual operation, but, as the Japanese claimed in 1900, ‘sovereignty is too important a matter to pass thus with a lease.’”60 The leasing of parts of Chinese territory to Great Britain, Germany, France, and Russia at the end of the nineteenth century, in the wake of the Sino-Japanese War that weakened China, breathed new life into the issue of sovereignty over leased territories. As Young points out, This reservation of sovereignty to China, the lessor state, was, in the original lease conventions of 1898, in some cases definite, in others indefinite or actually not evident at all except by inference. Failure to consider the actual texts of the lease conventions, and their variations, originally led the publicists to deal with them as uniform situations, a tendency which is still evident among contemporary writers. The fact is that in the case of the Weihaiwai lease to Great Britain (July 1, 1898) there was no specific mention of sovereignty to China. Great Britain was given “sole jurisdiction.” Nor was there any textual reservation of sovereignty to China over the Kowloon lease extension made in the same year. Great Britain was given “sole jurisdiction” over the territory, except for the city of Kowloon, over which the exercise of Chinese jurisdiction might continue only if and so long as it was not “inconsistent with the military requirements for the defence of Hong Kong.” In the case of the German lease at Kiaochow, China agreed to “abstain from exercising the rights of sovereignty” over the leased territory (convention of March 6, 1898), the wording indicating that sovereignty itself was reserved to China, the lessor, although there was no specific statement to this effect in the lease convention. In none of these lease conventions was there any such specific statement of reservation of sovereignty to China as was included in the Liaotung lease convention of March 27, 1898, between China and Russia. “This act of lease, however, in no way violates the sovereign rights of H. M. the Emperor of China to the above-mentioned territory.” From the context, however, and, in view of the broad delegation of almost exclusive jurisdictional authority to the lessee, Russia, it would seem more accurate for the convention to have

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substituted simply the term “sovereignty” for the “sovereign rights” of China in the sentence quoted.61

The idea that such leases were actually territorial cessions moved into the public sphere through news reports. “The cessions to Germany and Russia, carrying, as they do, exclusive privileges respecting the land behind them, do not lose their character by being described as ‘leases,’” the New York Times said in 1898.62 T. J. Lawrence described the dilemma from an international law perspective in commenting on the Chinese-Russian arrangement: The lease was to subsist for twenty-five years, with power of extension by common accord. It included not only the two places named, but a considerable district to the north-east of them. The powers conveyed by it are spoken of as those of “usufruct” in the official communication to the Russian press. Now, in Roman law usufruct was the right of using and reaping the fruits of things belonging to others; without destroying their substance. As to a lease, we are familiar in our own law with the powers of lessor and lessee. The matter is simple enough when such things as a house or a flock of sheep are concerned. But how does it work out when we have to deal with state authority? Who has jurisdiction in a leased territory, the state which grants the lease or the state to which the lease is granted? Or have they concurrent authority therein? If jurisdiction belongs to the grantor state, what are the rights which have been transferred to the grantee by the lease? If the grantee can exercise jurisdiction, what rights remain to the grantor whose sovereignty is supposed to be unimpaired? If both states share jurisdiction, where is the boundary line to be drawn between their respective spheres? There is no limit to the legal conundrums that might be invented by a little ingenuity. But in order to solve them satisfactorily we must qualify the theories of jurists by considerations drawn from the hard facts of international intercourse. . . . 63

As Lawrence suggests, the issue of sovereignty over a leased territory inevitably is accompanied by the issue of jurisdiction, a matter we shall address later. He continues: Turning to the facts, we note an agreement of opinion among all the powers except Japan, that once Russia had obtained a lease of Port Arthur, Germany of Kiao-chau, and Great Britain of Wei-hai-Wei, foreign consuls in those places could no longer exercise the special powers granted to them by treaty with China. The territories in question were held to be under the full and exclusive jurisdiction of the states to which they were leased, whose authority was deemed supreme while the leases remained in operation. Further, we must remember that the administration passed entirely to the lessee state, who not only carried on the government, but erected fortifications, established garrisons, and even dealt with Chinese inhabitants as resident aliens. Bearing these things in mind, we are forced to the conclusion that a lease in

30

The Leasing of Guantanamo Bay international transactions is not the commonplace and innocent affair we know so well in dealings with private property. It amounts, in fact, to a cession of the leased territory for a limited time, and with a strong probability that the period mentioned in the lease will be prolonged indefinitely if the lessee-state finds it convenient to stay on. With regard to it, law and fact harmonize but badly, and the difficulty arises from the useful diplomatic habit of veiling harsh acts with pleasant terms. The words which reserve the sovereignty of the lessor are fine phrases used for the purpose of disguising the reality of territorial transfer. They may be likened to the jam which renders palatable the child’s powder, or the courteous formula which conceals a social rebuff. We regret our inability to accept the invitation we regard as an impertinence. We are the obedient servants of the letter-writer we wish to keep at arm’s length. In the society of nations there are similar forms, and the lease is one of them. As a rule words describe things. In diplomacy they are sometimes used to describe—well, other things! If we apply these considerations to the position of Russia at Port Arthur and Ta-lien-wan, otherwise Dalny, we see at once that the powers she exercised there, from the moment they came into her possession six years ago64 to the outbreak of the present war,65 were powers of sovereignty and nothing else. She held dominion over the whole district; and accordingly when hostilities began she used it without limit or restraint for warlike purposes, and was subject in it to the onset of her foe. It is worthy of remark that, though she denounced Japan’s first attempt on Port Arthur as treacherous, she never maintained that the place, and the leased territory generally, were free from attack, as being under the sovereignty of China and therefore neutral ground. There can be no doubt that the whole world looks upon Port Arthur and Dalny as Russian territory; and unless the whole world is wrong, Russia was right in filling the district and its waters with troops and warships, and Japan was right in doing her utmost to destroy or capture them.66

Yang, who takes an opposite view in arguing that the Chinese leases grant authority to the lessee states only for the duration of the leases, notes that a lessee state, in fighting a defensive war against foreign aggression on leased territory, “is doubly responsible toward the lessor state.” It must successfully retain the territory in order to return it to the lessor when the lease expires, and it must return it in a condition that is at least as good as that in which it was received when the lease took effect, he asserts. A lessee state is even obliged to counter a foreign aggression against territory outside the leased area if it is necessary to not lose control over that leased area, Yang adds.67 The questions over whether and when title and sovereignty can be transferred by a lease prompted Lauterpacht to divide the world’s territorial leases into two types: “international leases of a purely private law type” and “political leases.” The first group generally comprised small areas of relative unimportance to the states involved, and the treaties

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creating them had clear and detailed provisions that were often related to the transit of goods in trade; they specified, for example, that the lessee state would use the leased area for a bonded warehouse. “The legal character of leases of this type remained unobscured by political interpretations. In all these leases the lessor retains the sovereignty over the leased territory, and the legal relation between him and the (lessee) remains the same as in private law. At the same time, it is obvious that these agreements belong to the domain of international public law,” he writes. The second group comprised generally larger territories and the granting of broader rights for the lessee state, typically including administrative rights and making the territories involved in these leases susceptible to possible cession despite the lessor’s retention of sovereignty under the agreements that created them. The view that such “political leases” could provide a means to acquire territorial sovereignty met heightened opposition with Lauterpacht’s assertion that it “is neither sound in law nor in accordance with the provisions of the treaties in question as interpreted by the actual practice of the interested States.”68 Such notions nonetheless persisted, although by the second half of the twentieth century proponents like Rousseau conceded that the return of some leased territories to the lessor states might justify modifying this view.69 It was further eroded as legal scholars like V´ali argued that “in every case the grantor State still retains certain rights in or over the territory thus transferred” and that its sovereignty is expressly preserved.70 The practice of states has shown that some leased territories ultimately were ceded to the lessee state while others were not.71 In recent years, the return of full control over several prominent leased territories to the lessor states (Hong Kong in 1997, Macao in 1999, and the Canal Zone in 2000) may indicate a trend toward confirming the lessor’s sovereignty, but historically it appears that a mix of factors affects whether this happens— the interests of the states, their relations with each other, and their specific intentions vis-`a-vis the territory when the servitude is created, during its existence, and upon its expiration. In the case of Guantanamo Bay, the United States has linked its potential return to Cuba to a specific interest, that of seeing a change in Cuba’s form of government toward a democracy. Thus, while international law may be the vehicle by which territorial leases are created, international relations become the determinant of their fate. Lawrence’s allusion to the political sensitivity of the issue affecting the terminology of territorial leasing has persisted until the present time. Many leasing agreements between states have borrowed terminology from private-law leases, including “lease” itself and “rent,” elevating such words into the sphere of international law.72 Yet many other arrangements with the features of territorial leases purposely avoid such terminology,

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making it difficult to know with precision how many territorial leases exist in the world. This impedes more comprehensive knowledge of the phenomenon that might yield more clarity for some of the questions it raises for international law. A territorial lease may be acceptable under municipal legal systems, or may be politically viable, only if it is called something else or is publicly presented as not being a lease. This has given rise to situations like the one involving Israel’s lease of two small territories from Jordan— Naharayim/Baqura and Zofar/Al-Ghamr—as part of their 1994 peace treaty, in which the arrangement resolved a lingering problem in the delimitation of their common boundary. The terms emulated those seen in territorial leases elsewhere, but both states felt compelled to deny it that label—Israel’s then–prime minister, Yitzhak Rabin, said it was “not a leasing arrangement,”73 and a Jordanian negotiator of the treaty, Munther J. Haddadin, said “the deal was not that of a lease, it was a Jordanian permission.”74 (The semantic fac¸ade was never defended very vigorously by either government and was breached nine months after the treaty was signed when the Israeli agriculture minister, Ya’akov Tzur, referred to the arrangement in a newspaper interview as “a land-lease model.”75 ) Territorial leasing has attained sufficient status as a phenomenon that it is addressed in the constitutions of some modern states. A few, like Venezuela and Paraguay, prohibit them. Venezuela’s constitution states that its territory “shall never be assigned, transferred, leased or in any manner whatsoever conveyed, even temporarily or partially, to foreign States or other international law subjects.”76 But most states have no such ban, and some specifically endorse the concept. In Kazakhstan, for example, an official interpretation of the constitution by the state’s Constitutional Council in 2003 said that land provided to other states for diplomatic missions shall be “on terms of lease.”77 A territorial lease can entail legal relationships that are far more complex than those covered strictly by municipal law. Lazar notes that a territorial lease can impact other states or other subjects of international law, nationals of the states that are parties to the lease, and foreign nationals. He adds: The numerous legal relationships growing out of the categories of legal entities affected by a lease (are) made more complicated by the levels of different legal systems in which the legal entities operate. Thus, a lease for military purposes may involve the following levels and systems of law: the lessor State’s military law, criminal law, or various categories of civil law; local community or local law of the situs; the lessee State’s domestic property law, constitutional law, or various categories of civil or municipal law; the lessor State’s total aggregate of municipal law; the “blended” system of law of the States as established by the leasing transactions and the legal mechanisms

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created thereby; the systems of law of States other than parties to the leasing transaction; the system of international law.78

Lazar further writes that while a territorial lease between states “may be seen to be an instrument of legal order,” the substantial differences that exist among the types, terms, motivations, and effects of territorial leases speak against considering them within a single juridical category.79 “Clarity of terminology is, of course, highly to be desired,” he says. “Nevertheless, the structuring of legal order in the developing world society by means of leasehold conventions of unlimited flexibility is an even higher value.”80

THE COMPONENTS OF TERRITORIAL LEASES The Transfer of Rights The structure of a territorial lease between states normally comprises three main elements—the rights, competences, and obligations of each state; the duration of the arrangement; and the compensation to be paid for having the rights81 (although the second and/or third elements may be lacking in some cases). The first element is the one that is most directly linked to the objective of the lease and has the greatest scope for variation, as the rights embodied in the servitude it creates may be extremely broad or quite narrow. It is thus the most critical factor in determining how much control the lessee state may obtain over the territory. In defining the states’ respective rights and obligations vis-`a-vis the territory involved, a lease automatically raises a series of other issues. These can include how the leased territory is affected by other treaties to which the lessor or lessee state is a party,82 the nationality of the inhabitants of the leased territory,83 the situation of the servitude in the event of war,84 and the provision of vital services to the territory. Regimes of common practice sometimes emerge and evolve among states for matters like these, an example being the issue of nationality for a leased territory’s population—Perrinjaquet wrote in 1904 that inhabitants become nationals of the recipient state,85 although a century later Danwall noted that the norm had changed: “If the leased territory has inhabitants these do not lose their original citizenship or nationality.”86 In regard to jurisdiction, however, no standard model has taken hold. For a lessee state, having at least some jurisdiction may be essential for achieving the objective of a lease. For a lessor, the nature and degree of jurisdiction that it transfers to the lessee may contribute to a loss of effective control of the territory and ultimately title to it. The unique nature of each lease, with terms shaped to address a specific territorial issue, forces

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the lease itself to establish the framework of jurisdiction on the territory involved.87 The means by which jurisdiction is addressed can cover a broad range, as seen from the following examples: 1. Jurisdiction is retained exclusively by the lessor state. This is seen with the lease of the Spanish territory of Quinto Real Norte (Pays Quint Septentrional) to France. The territory was owned and administered by two Spanish valleys, and the lease established by the Treaty of Bayonne of 1856 granted livestock herders from the adjacent French valley of Baigorry exclusive use of the Quinto Real Norte’s pastures for grazing. It allowed them and those guarding them to build certain necessary structures of wood from the surrounding forests and stipulated that Spain’s laws would prevail: So these guards and herders never lack the wood necessary for the uses mentioned above, the valleys that own the territory where the pastures are farmed will be obliged to regulate the exploitation of forests they possess, conforming with Spanish laws, and in such manner that at all times these forests can supply the ordinary needs of life of the guards and the herders, and provide for the herds the shelter that is necessary to protect them from bad weather or sun. The herders in question will submit to the conditions imposed by Spanish laws on every person who farms pastures, that is, that they may never alter the terrain by clearing it, cutting wood, cultivating the land, or building structures other than those referred to above.88 2. Jurisdiction is retained primarily, but not exclusively, by the lessor state. Great Britain’s lease of Wei-hai Wei from China in 1898 had a clause that left jurisdiction mainly with China: Jurisdictional rights—It is also agreed that within the walled city of Wei-hai Wei, Chinese officials shall continue to exercise jurisdiction except so far as it may be inconsistent with naval and military requirements for defence of the territory leased.89 3. Jurisdiction is split, with each state having jurisdiction on separate parts of the leased territory. Another 1898 British lease from China that involved the area comprising Hong Kong’s New Territories allowed for joint jurisdiction, with each state having jurisdiction over part of the area: Jurisdiction in leased territory—It is at the same time agreed that within the city of Kowloon the Chinese officials now stationed there shall continue to exercise jurisdiction except so far as may be inconsistent with the military requirements for the defence of Hong Kong. Within the remainder of the newly-leased territory Great Britain shall have sole jurisdiction. Chinese officials and people shall be allowed as heretofore to use the road from Kowloon to Hainan.90

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This arrangement reflected Kowloon’s role in the Chinese legal system (as the location of a submagistrate), but it failed when the British seized control of Kowloon and assumed jurisdiction there in 1899.91 4. Jurisdiction is split, with each state having jurisdiction over its nationals in incidents, and with the lessor state retaining jurisdiction for other purposes. India’s lease of the small territory of Tin Bigha to Bangladesh, which became effective in 1992, provides for a regime in which the state that obtains jurisdiction over a specific incident is determined by the nationality of the individual(s) involved in it. The lessor state retains jurisdiction for other legal issues that may arise: 9. In the event of any Bangladesh/Indian national being involved in an incident in the leased area, constituting an offence in law, he shall be dealt with by the respective law enforcing agency of his own country in accordance with its national laws. In the event of an incident in the leased area involving nationals of both countries, the law enforcing agency on the scene of the incident will take necessary steps to restore law and order. At the same time immediate steps will be taken to get in touch with the law enforcing agency of the other country. In such cases, any Indian national apprehended by a Bangladeshi law enforcing agency shall be handed over forthwith to the Indian side and any Bangladeshi national apprehended by an Indian law enforcing agency shall be handed over forthwith to the Bangladeshi side. India will retain residual jurisdiction in the leased area.92 5. Jurisdiction is transferred largely or exclusively to the lessee state. The 1903 lease of Guantanamo Bay and Bah´ıa Honda by the United States from Cuba illustrates how a lessee state may be granted the bulk of the jurisdiction rights, or even all of them: Article III. 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 (under conditions to be hereafter agreed by the two Governments) 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.93

Over time, territorial leasing has become more flexible with regard to the division of jurisdictional rights; while early leases tended to result in comprehensive jurisdiction on the territory residing with the lessee state, some modern agreements, notably those involving United States military bases, involve “concurrent jurisdiction,” in which primary jurisdiction is exercised either by the lessee or the lessor state, depending on circumstances, with mechanisms that allow for jurisdiction over individual cases to be waived in favor of the other state.94

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The part of a territorial lease that details each state’s rights and obligations can be a source of endless legal issues. Some may derive from interpretations of the object and purpose of the treaty creating the lease if one state embraces expansive views while the other has narrower ones.95 Legal questions may also arise if a lease is not flexible to adapt to political, social, economic, and other situations that evolve while it is in force. Divergences that emerge between the rights elaborated in a lease and the interests of the states at a later point can impact their relations, which can reciprocally influence the future of the leased territory. Duration The duration of a territorial lease reflects how the states perceive the territorial issue it addresses—as something temporary or permanent, or too difficult to resolve by more definitive means. This aspect of a lease offers states flexibility that other mechanisms of international relations cannot— it can be shaped to the situation at hand, and can allow leases to be applied as a provisional measure when a more lasting solution proves elusive. The durational aspect of a lease can also serve to reaffirm where sovereignty lies by anticipating the eventual return of the territory to the lessor state or by acknowledging the lessor’s sovereignty on an ongoing basis. Several models have evolved for establishing the duration of a territorial lease96 : 1. Fixed term—This entails an expiration date on which the territory reverts to the lessor state. Prolonging the lease would require a new agreement. An example is the ninety-nine-year lease of Hong Kong’s New Territories by Great Britain from China, which ended in 1997.97 2. Fixed term with automatic renewal—The term may be fixed but with an automatic renewal clause that can prolong it unless action is initiated to halt the renewal. This was the nature of the lease arrangements in the Israel-Jordan Peace Treaty of 1994.98 3. Term contingent on inevitable events—The timing of the expiration may depend on events that are known to be inevitable. This was seen in reciprocal leases in 1894 between Great Britain and Belgium that involved territory in the Congo Free State, then under Belgian control. The lease for part of the territory was to expire at the end of the reign of Belgium’s King Leopold II (it did, in 1909), and for another part of the territory it was to last as long as the Congo remained Belgian.99 The lease for the second part was not contingent on a known inevitability but rather on a circumstance that may or may not occur, and reflected a distinct model of duration seen in the next example. 4. Indefinite term with provision for termination—The term may be left indeterminate, with the lease defining circumstances that would cause its termination if

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and when the circumstances arise. The Guantanamo Bay lease is this type, with two possible means of termination: the abandonment by the United States of the naval facility, or an agreement between the United States and Cuba to end the lease. 5. Perpetuity—This reflects the intention of permanence, an example being the perpetual lease granting France sovereign rights in the Spanish territory of Quinto Real Norte (Pays Quint Septentrional).100 A term of perpetuity is not necessarily borne out in actual practice, as was shown with the United States lease of the Canal Zone from Panama; it was leased in perpetuity in 1903 but was returned to Panama in 2000.

A territorial lease may be legally terminated regardless of its intended duration under certain conditions. These include the doctrine of unequal treaties, if the lease is between a dominant state and a weak state; the emergence of a peremptory norm of international law that is incompatible with a territorial lease; the implied right of denunciation when a lease established by treaty has no provision for termination or withdrawal; the principle of rebus sic stantibus, which holds that a lease can be terminated if there is a fundamental change of circumstances; and a material breach of a lease’s provisions.101 The ending of a territorial lease during its term may also be brought about if the participating states revise or replace the treaty that creates it,102 by the transfer of title to the leased territory from the lessor state to the lessee state in accordance with the means of establishing title, or by the disappearance of one of the contracting states.103 Yang notes that a lease may also be terminated early by the lessee state simply by renouncing the treaty that created it, as the lease was initially created for its interests and the lessor is unlikely to not accept such a move. “On the contrary, it would be more than happy to be able to resume exercising its sovereign rights over this portion of its territory,” Yang writes. Nonetheless, there is insufficient evidence from actual state practice to know if this claim would hold up in all circumstances, as the lessor state can also derive value from the arrangement in the form of the compensation it receives. Compensation The nature of compensation paid by the lessee state to the lessor state can vary. It may be related to the perceived value of the territory, the objective of the lease, or the affirmation of sovereignty. The payment is not necessarily monetary—it can be in the form of goods or services or a concession such as favorable terms in a separate transaction. Sometimes no compensation is specified in leases between states, a fact that marks a divergence from private-law leases. In these cases the compensation may still exist but in an intangible form, such as an improved political

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or trade environment for the lessor state that results from the arrangement. Among types of compensation seen in the practice of states are the following104 : 1. Periodic payment based on economic value—A periodic payment, typically annual, may be stipulated on the basis of the economic value of the leased territory or of the rights obtained by the lessee state. This was initially the case with the Guantanamo Bay lease. 2. Periodic token payment to acknowledge sovereignty—A periodic token payment may be required as affirmation by the lessee state of the lessor’s sovereignty over the territory. The payment becomes a recurring display of recognition of the lessor’s claim to title, as was explicitly stated when Great Britain leased Kashmir to Maharajah Gulab Singh in the 1846 Treaty of Amritsar.105 3. Payment stipulated but waived—A lease that includes compensation to acknowledge the lessor state’s sovereignty may waive the requirement for actual payment. In this case, the lessee displays its recognition of the lessor state’s title to territory only once, by the act of agreeing to the payment. India thus leased the tiny area of Tin Bigha to Bangladesh for an annual amount that equaled less than $0.05 and waived its right to make Bangladesh pay it.106 4. Single payment—A lease may involve a one-time payment rather than periodic payments. This was apparently the case when the United States leased the Chagos Islands from Great Britain for fifty years in 1966 to install a military base on the island of Diego Garcia. The terms were kept secret, but over time it was acknowledged that the United States gave the United Kingdom a discount on the acquisition of Polaris nuclear submarines as its payment.107 5. Payment not required—A lessee state may not be required to make any payment to the lessor state. Great Britain’s lease of Hong Kong’s New Territories from China in 1898 was this type.

Beyond the financial or other benefit that accrues to a lessor state, the importance of the compensation aspect of a territorial lease is that it may affect the duration of the lease if it is, like most, established by treaty. If the compensation is significant and a lessee state’s failure to pay is considered a material breach, the lessor may void the lease and end the servitude under the provisions of the Vienna Convention on the Law of Treaties.108 The compensation level stipulated in a territorial lease usually is constant through the years, but having this character may make it unstable in some respects, and this can also impact the duration of the arrangement. Factors in determining the compensation level often include the values of the currencies of the states involved and the actual or deemed value of the territory as measured in those currencies. Both of these can vary substantially over time through currency devaluations or revaluations (upward revisions) or through changes in land values. If there is no clause that

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allows the compensation to be adjusted for devaluations or rising land prices while the lease is in force, the payment amount may shrink in relative terms to become a token payment. This can be a gradual process that takes place over many years and can go unperceived by the states involved, impeding action to counter it, but it can also happen more rapidly. This situation is not particularly rare with territorial leases—it has occurred with the Guantanamo Bay lease. Among other examples of this are the U.S. lease of the Canal Zone from Panama and the French lease of Quinto Real Norte (Pays Quint Septentrional) in Spain.109 When the compensation is transformed into a token amount, the payment clause of a lease created by treaty may lose its status as a material element of the treaty. This effectively alters the character of the lease, as a breach of the compensation clause may no longer be considered a legally valid reason to terminate the treaty under the Vienna Convention. No known cases of this have occurred, so for now the issue remains theoretical. Nonetheless, states have typically reacted when the compensation associated with a territorial lease has become too low in the judgment of one or both parties, as the matter reflects an imbalance that could have consequences for their bilateral relations if it is not addressed. This has generally resulted in new agreements, including treaties in some cases, to revise the payment upward.110 Of course, the factors creating instability in the compensation aspect of a lease can also result in the payment rising in relation to the value of the territory. This would not have the same potential consequences under international law, as it does not threaten the materiality of the treaty’s compensation clause. Despite the likelihood that this has occurred with one or more leased territories at some point, the absence of information about cases suggests that states faced with this circumstance have not perceived it as a problem requiring attention.

CHAPTER 3 THE GUANTANAMO BAY LEASE STEPS TOWARD THE LEASE A Brief History Through 1898 Guantanamo Bay is a natural deepwater port that stretches inland from the southern coast of Cuba, near the eastern end of the island. It was among the earliest locations in the Americas to be visited by European explorers—Christopher Columbus went ashore there in April 1494, during his second voyage to the Americas, while leading a mission to examine the features of Cuba’s southern coastline for potential further exploration. He and his men stayed for only a day at Guantanamo Bay, during which they made contact with local natives and assessed the location as an unlikely spot for achieving one of their objectives: finding gold.1 For much of the time during the centuries that followed, the port was used by seagoing pirates as a base of operations, as it was a convenient location from which to attack ships traveling through the nearby Windward Passage, the body of water between Cuba and Haiti.2 Despite the potential due to its marine characteristics, Guantanamo Bay never grew into a major commercial port. The local climate of sparse rainfall and the poor quality of soil in the hilly land surrounding the bay kept the area from having much agricultural potential,3 and the absence of sources of freshwater for drinking was a deterrent to developing the area in a more general sense.4 As a result, permanent settlements were few and remained small. A town called Caimanera lies near some salt deposits along the western shore of the bay, and a small city called Guant´anamo is situated about seven miles beyond the bay’s furthest point inland. Today the area is part of Cuba’s easternmost province, also called Guant´anamo, which was created from the larger Oriente province that was broken up during a governmental restructuring in 1976. As part of Cuba, Guantanamo Bay was under Spanish control from the time of Columbus’ arrival until the end of the nineteenth century except for one brief period between July and November 1741, when it was taken over by British forces during one of the frequent wars between Great

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Britain and Spain. A British fleet that landed at the undefended bay set up a provisional encampment there and used it as the starting point for an expedition to capture Santiago de Cuba, the seat of government for the eastern half of the island. However, many of the troops who were assigned to the mission died from local diseases and their effort failed, resulting in the fleet’s withdrawal.5 The development of Cuba’s sugar industry in the 1800s dramatically transformed the country in many respects, and Guantanamo Bay assumed a small role as part of this process. By the middle of the century sugar cane was dominating the island’s agriculture and Cuba had emerged as the world’s largest sugar producer,6 while the United States became its principal export market.7 At about this time a small commercial port was established at Guantanamo Bay, mainly for use in shipping sugar to the United States, but its activity level was far below those of more than a dozen other Cuban ports.8 The decades immediately preceding the Spanish-American War were marked by several periods of political strife and economic upheaval within Cuba, including a civil war sparked by pro-independence Cuban nationalists that began in 1868 and lasted ten years.9 This unstable environment left the sugar industry precarious at times, and as it was propped up by U.S. investments,10 the de facto ties between the United States and Cuba grew despite the limited political ties that existed because the island belonged to Spain. Such developments drew the United States into becoming more directly concerned with internal Cuban affairs,11 a situation that persisted and eventually contributed to its desire for a presence at Guantanamo Bay. The instability in Cuba worsened as its sugar industry faced very rapidly growing competition from elsewhere in the world and as Spain’s colonial government on the island proved largely incompetent in handling increasingly serious administrative and social problems.12 This eventually led to a major insurrection in 1895 that drew leadership and support from the Cuban Revolutionary Party, a political movement formed by Cubans in the United States several years earlier to promote Cuba’s independence from Spain and to lobby for American backing. As the fighting continued into 1896, Spain placed Cuba under martial law; shortly afterward both houses of the U.S. Congress passed resolutions in support of the rebels. The U.S. government stayed officially neutral, but by late 1896 it threatened to intervene if Spain was unable to halt the crisis. Pro-independence sympathies in the United States turned increasingly anti-Spanish through 1897, fueled by inflammatory articles in American newspapers. At the start of 1898 Spain gave limited autonomy to Cuba, but this failed to halt the rebellion, and in April of that year the U.S. Congress approved President William McKinley’s request to intervene. Days later the United States

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declared war with Spain and sent troops to Cuba to fight on the side of the insurgents.13 The war progressed quickly. In mid-May the U.S. secretary of the Navy, John D. Long, ordered the capture of Guantanamo Bay as a coaling station for refueling U.S. ships, and on June 14 the site fell to U.S. troops.14 By July 1898 the defeat of Spanish forces in several key battles moved it toward a conclusion. A month later a cease-fire was declared, and the United States and Spain signed a protocol that became the basis of negotiations toward a peace treaty.15 The Treaty of Paris, 1898 The peace treaty, negotiated in Paris as a neutral location and known as the Treaty of Paris, was signed in December 1898. It was ratified by the United States in February 1899 and by Spain in March and formally ended the Spanish-American War when it took effect in April of that year.16 The treaty thus became the first instrument to create a legal relationship between the United States and the territory that included Guantanamo Bay. It stipulated that Spain was to give up its Caribbean and Pacific territories, but what made it notable from the standpoint of international law was its innovative treatment of transferring title to territory—it created a distinction between a cession to another state that would assume sovereignty and a cession to another state that would act as an occupying power but would not assume sovereignty. In the latter case, the territory given up was termed relinquished rather than ceded. In this way, Spain “relinquished” its sovereignty over Cuba but the United States did not acquire title to it through conquest, as prevailing international law would have allowed. Rather, the treaty designated the United States as the occupying power for a limited but unspecified time, after which the legal obligations it assumed in that role would be transferred to a new Cuban government that would be established on the island. The objective was to make an independent Cuba the actual successor state through a rudimentary process of decolonization, with the United States acting as facilitator through the creation of a temporary protectorate. In contrast to this arrangement for Cuba, the treaty stipulated that Spain would transfer control over Puerto Rico, other islands in the West Indies, Guam, and the Philippines to the United States through straightforward cessions. The treatment of Cuba was different because of a policy the United States resolved to follow when it entered the war, namely that Cubans had a right to an independent nation and that the United States did not plan to replace Spain as the sovereign power. This policy, inserted by Colorado Senator Henry M. Teller into the declaration of war and known

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as the Teller Amendment, stated that the United States “hereby disclaims any disposition or intention to exercise sovereignty, jurisdiction, or control over said island except for pacification thereof, and asserts its determination, when that is accomplished, to leave the government and control of the island to its people.”17 This led to a bizarre situation in which traditional state behavior was turned on its head: the victorious state did not want sovereignty over the territory it had just conquered, but the defeated state, having lost control over Cuba, became adamant that the victor must assume the role of sovereign, ostensibly to preserve the meaning of sovereignty by preventing its application from being corrupted.18 At one point Spain’s insistence that title to Cuba should be transferred to the United States even threatened the success of the peace treaty negotiations, as the United States held firm in refusing it19 —a situation that was all the more remarkable because the U.S. negotiating side was dominated by political figures who were known expansionists.20 It was evident from public pronouncements and internal documents that the United States genuinely supported Cuban self-determination, but its primary motive for refusing to accept sovereignty over Cuba was not the welfare of the island’s people. Likewise, Spain’s attempt to force the United States to accept sovereignty had more to do with practical matters than with the notion itself: both states recognized that a formal transfer of title to the United States would also mean a transfer of legal responsibility for more than $400 million in debt that the Spanish administrators in Cuba had incurred.21 It had become the practice of states to assume debts incurred by a previous sovereign for a conquered territory’s general good, such as infrastructure, but the majority of Cuba’s debt had been incurred for political objectives, such as putting down unrest.22 Meanwhile, Spain could not make Cuba itself responsible for the debt, having previously recognized it as the state’s debt and not Cuba’s. In the event, the United States preempted any such attempt by Spain by characterizing the debt as incurred against Cuba’s will and by force of arms and as a main reason for the insurgents’ fight for independence.23 Spain was naturally in much worse condition than before the war to repay it, not only from an immediate financial standpoint but also in terms of losing territories that would generate the future revenue it was counting on to pay for its role in the conflict. It had financed the war mainly by issuing debt backed by income from its colonial activities, and keeping its debt obligations while losing the colonies made an economic crisis of colossal magnitude inevitable.24 The United States was equally reluctant to assume an enormous addition to its debt, which totalled less than $2 billion at the time.25 The war itself had already cost the U.S. government $250 million,26 financed by a combination of new debt and the imposition

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of special taxes on a vast array of ordinary and luxury goods, services, and inheritances.27 Spain nonetheless pressed its argument that the very concept of sovereignty was threatened if the United States failed to take title to Cuba. It claimed that to “relinquish” sovereignty over the island was to “abandon” sovereignty over it, based on definitions in both English and Spanish dictionaries that showed the terms to be synonymous.28 It asserted that abandoning sovereignty over Cuba would cause the island to become terra nullius, allowing title to be claimed by the first state to occupy it, while renouncing sovereignty over Cuba in favor of the United States would accommodate the U.S. decision for Cuba to be made independent. The United States held that it was not seeking a renunciation of Spanish sovereignty over Cuba in favor of itself.29 It also refused to equate “relinquishing” sovereignty with “abandoning” sovereignty, as abandonment could open the door for another European colonial power to attempt to assume control over Cuba in Spain’s place.30 Faced with the prospect that the state of war would persist if the treaty talks failed, and with its financial ability too exhausted for a resumption of fighting, Spain eventually backed down and kept responsibility for the debt.31 Consequently, the treaty affirmed territorial cession as a concept whose aspects were split into elements with different legal consequences: in Article I Spain “relinquishes” its sovereignty over Cuba, while in Articles II and III it “cedes to the United States” its sovereignty over the other Caribbean and Pacific territories. The different circumstances that existed for Cuba and the other territories Spain lost in the war—Puerto Rico, for example, had no debt32 — cleared a path for the Treaty of Paris to formalize the divergent situations for their sovereignty. The Treaty of Paris did not explicitly state that Spain would pay Cuba’s debt, but Spain acknowledged its obligation to pay it through a law it enacted in 1899.33 As it happened, the United States indirectly covered 5% of the debt, as the treaty gave it title to the Philippines by way of a $20 million purchase rather than through a simple claim of conquest. The ceded areas thus came immediately under U.S. sovereignty while Cuba did not, at least in a formal sense. Elbert J. Benton notes that the United States continued to treat Cuba as a foreign entity but had assumed de facto sovereignty over it, adding: The temporary and limited character of the occupation cannot alter the fact that for its duration, brief or long, temperate or licentious, there must needs be sovereignty somewhere. During the military government of a territory sovereignty—however distributed by the exigencies and peculiar constitutional forms of the conqueror, and however limited by the extra-legal restraints of international law—is actually exercised by the agencies of the occupant.34

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Carman F. Randolph, writing during the U.S. occupation of Cuba, assesses the situation more elaborately vis-`a-vis the questions it posed for sovereignty, jurisdiction, and statehood, and reaches the same conclusion: In these circumstances Cuba remains as foreign to our domestic system as it was when under the dominion of Spain. It is not within the purview of the Constitution nor any law of the United States. It is not within the jurisdiction of Congress, which is the legislature of the United States and not of any other country. This limitation of congressional power is prescribed by the rule that the acts of a legislature have no force in foreign territory, except, of course, as they may be held to affect citizens abroad. This rule is sometimes stated in terms recognizing the inability of one state to depreciate the sovereignty of another by asserting jurisdiction in the latter’s territory, and were this the whole reason for the rule there might be difficulty in applying it to Cuba, where there is no state to be depreciated. . . . From the standpoint of the United States Cuba is a foreign country in our occupation and control. . . . The occupation . . . entitles the United States to assert, upon occasion, any right, privilege or immunity that enures to a disinterested occupant of territory as distinguished from a sovereign proprietor, and leaves them responsible only for the discharge of the specific obligations of the Treaty of Paris, and such duties, sufficiently onerous, as may be attached by international law to an occupation of this peculiar kind. Our control over Cuba savors of the protectoral relation in important respects, yet it is not a protectorate, because, apart from uncivilized regions, the subject of this relation is a state of more or less substantial powers. There is no state of Cuba, and we shall only add to the embarrassments of a sufficiently difficult problem by tolerating such fictions as an embryo state, or even an effective sovereignty in the Cuban people. It is true that there are in operation in the island municipal and provincial systems of government and a complete judicial system, all officered by Cubans, but these agencies do not emanate from a local sovereignty. They exist by the ordination or permission of the United States. To be short, whatever sovereignty there is in Cuba today is vested in the representatives of the United States who administer the Government of Cuba.35

Meanwhile, the separate situation of de jure sovereignty that the United States had over the territories ceded to it by Spain brought into question the legality of tariffs affecting Puerto Rican and Philippine trade with the mainland United States. Such questions led to a series of cases known as the Insular Cases, in which the U.S. Supreme Court addressed the issue of the U.S. Constitution’s relationship with these territories, but their outcome did not cleanly settle the situation. So great . . . was the division of the court upon the several insular cases that in effect seven of the justices were of the opinion that the Constitution becomes applicable to a territory whenever such territory is duly organized,

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By focusing on tariff laws, the rulings in these cases helped forge a process in which the nature and extent of the U.S. Constitution’s application in territories that were not U.S. states but were controlled by the United States came to be determined on a piecemeal basis through legislation and court rulings.37 This allowed the divergence of views that occurred among Supreme Court justices to reappear when other questions later arose about applying the Constitution on leased territories where the United States had sovereign rights. As we shall see, questions of this nature have been central to the recent legal issues involving Guantanamo Bay. In ending the Spanish-American War, the Treaty of Paris did not set a specific time period for the U.S. occupation of Cuba, but concerns in the United States that a prolonged role as occupier could foster a new Cuban revolt yielded a policy of encouraging Cuban leaders to develop a constitution and government so the United States could withdraw. Bound by the Teller Amendment, motivated by Cuba’s debt, and intent on avoiding a long-term role in a territory it considered plagued with internal problems, the United States wanted the island to become a state of its own. However, it had reason to lack confidence that Cuba could effectively govern itself. “Spain had not encouraged Cubans to participate in the higher levels of administration. Thus, few Cubans had been trained to assume the responsibilities of governing Cuba . . . ,” Joseph C. Sweeney writes, adding that “Cubans held strongly divergent views as to the way Cuban democracy should develop and were unable to compromise their political beliefs.”38 Faced with this situation amid the resumption of the underlying trend toward expanded U.S.-Cuban trade links, the threat that Cuban instability posed for U.S. interests pushed the United States toward wanting a degree of ongoing control over the island. From this sprang the notion that the United States should have a residual right to intervene militarily to ensure the stability of Cuba if necessary and to retain a naval presence on the island for that purpose.

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The Platt Amendment, 1901 The broader concerns of the United States in the Caribbean changed when it became the temporary occupying power in Cuba and assumed de jure sovereignty over Spain’s other territories in the region. It found that its opportunities were enhanced by the realignment of trade patterns in its favor and by the increased political influence it gained, and it perceived a need to protect these advantages from threats of disruption. As Cuba was larger and closer to the United States than other Caribbean islands, its strategic importance became heightened in a way that would remain after the U.S. occupation ended. The Treaty of Paris generated a dilemma for the United States with regard to Cuba, obliging the United States to eventually leave an island that would be more critical to its regional interests at the time of withdrawal than at the time it was preparing to occupy it. The challenge this created from the U.S. perspective was how to give Cuba clear enough independence to be recognized as a state with sovereignty over its territory while keeping enough residual influence in Cuba to prevent developments that could harm U.S. interests. It was in this context that the United States began eyeing Guantanamo Bay as a site where its influence could be exercised. The United States had gained detailed knowledge of Cuba through its status as the occupying power, with the Department of the Navy spending the first two years of occupation surveying the eastern part of the island to find the best location for a base from which to control the waters between Cuba and nearby Haiti. In 1900, it decided that Guantanamo Bay was the most advantageous site, prompting Navy Secretary Long and Admiral Royal B. Bradford to lobby for its acquisition. The U.S. secretary of war, Elihu Root, reviewed the matter and told the U.S. military governor of Cuba, Major General Leonard Wood, that he was “very desirous that the Guantanamo purchase should be made.” Root’s communication to Wood made it clear that what he envisioned was a transaction at the level of states, rather than a purchase of property under Cuba’s municipal law—although he preferred it to occur while the United States still occupied Cuba.39 The idea of the occupying power acquiring through purchase part of the territory it occupied after the previous sovereign had relinquished it undoubtedly raised practical and legal questions, not least of which was from whom to make the purchase—the United States already controlled Guantanamo Bay, having taken over from Spain as the occupier of all of Cuba. Whether obtaining formal title to Guantanamo Bay would legally constitute a form of delayed cession of that part of Cuba’s territory to the United States was another. Its domestic and international obligations through the Teller Amendment and the Treaty of Paris obliged

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the United States not to assume de jure sovereignty over Cuba—but did this restriction only cover an immediate and direct transfer of sovereignty from Spain? And if the United States were to obtain title to part of Cuba’s territory, would it have any obligations vis-`a-vis the Cuban debt? These questions were never answered because it was simultaneously becoming evident to U.S. authorities that a broader framework had to be developed for the future relationship that the United States would have with a sovereign Cuba. The plan adopted by President McKinley and his cabinet was proposed by Root himself and provided an alternative means for the United States to obtain Guantanamo Bay: it would occur through a state-to-state transaction after Cuba became independent, but independence would be granted only if Cuba accepted this provision as well as other elements of the plan that would act as limits on its sovereignty.40 The U.S. government enlisted Connecticut Senator Orville H. Platt to put the plan to Congress for approval, and Platt submitted it as an amendment to a military appropriations bill that was subsequently passed.41 Known as the Platt Amendment, the plan authorized the United States to transfer control of Cuba to its people once a Cuban government was established under a constitution that contained the eight conditions that the amendment itself set forth. The conditions were resisted by the Constituent Convention, the body formed to draft a constitution for the new state.42 One would give the United States the right to intervene in Cuba for purposes of preserving its independence and maintaining a government that could ensure social order, and another would require Cuba to put all of the Platt Amendment’s clauses into a treaty with the United States, which would reinforce their legal status. The condition that would result in the United States obtaining rights at Guantanamo Bay was Article VII, which stated: To enable the United States to maintain the independence of Cuba, and to protect the people thereof, 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.43

When the Constituent Convention was convened by Governor Wood in 1900, its delegates were not expressly charged with formulating constitutional provisions that would result in the United States having land for coaling and naval stations. However, the inclusion of this demand in the Platt Amendment changed that. A month before Congress passed the appropriation bill containing the amendment in 1901, Wood received instructions from Washington that “the people of Cuba should desire to have incorporated in her fundamental law provisions in substance”

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to the effect that “the United States may acquire and hold the title to land for naval stations and maintain the same at certain specified points.”44 With the United States now insisting that Cuba must include the Platt Amendment in its constitution as well as a treaty, the Constituent Convention’s president, Domingo M´endez Capote, challenged the U.S. demand to use Cuban territory for naval stations. In a meeting between delegates from the Constituent Convention and U.S. War Secretary Root, M´endez Capote questioned whether the naval stations were essential. Manuel M´arquez Sterling gives the following account of Root’s response: “They are extremely essential for the good of Cuba and for the good of the United States!” Mr. Root said emphatically. “There will come a time when Cuba has its own navy, and that navy will sail the seas around the world. Nevertheless, the Cuban fleet, while it is still being built up, will not be able to measure up in force against the European fleets. Let’s recall that there are monarchies, like Italy, that have found themselves obliged to forge alliances with the aim of retaining their independence, and that speaks for Cuba doing it with its natural ally: an agreement that does not diminish its independence and provides the means necessary to maintain it and consolidate it. In Cuba, as in every country of the world where there is economic prosperity, there are companies created by foreigners that acquire land, houses, docks and ports. I ask you, gentlemen, what inconvenience would it be for Cuba to treat us, at least, in the same way as these commercial businesses in which foreigners are involved? “The government of the United States only asks the Convention to give the new government of Cuba the authority to decide, in a treaty, that which concerns the naval stations. The United States goes beyond its responsibilities without rest, and wants to obtain positions that serve the strategic defense of both Republics; but these strategic positions will never be destined for other uses. Moreover, the United States has reached identical agreements with other countries of indisputable sovereignty, and those countries have never complained about how our authorities have proceeded. “Our people assigned to the future naval stations will never look at the internal cracks within your country. Their powerful and far-sighted spyglasses will look to the seas, to discover the secret of the horizons through fogs and storms. Imagine that the stations will be found thousands of miles from Cuban beaches, and you will have contemplated in advance the reality of the seventh paragraph.”45

Before the meeting, the Constituent Convention had voted down the Platt Amendment’s inclusion in the new Cuban constitution,46 but after the meeting it was narrowly approved in a 15 to 14 vote47 with conditions that the United States resisted accepting. Faced with the prospect of

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prolonging the U.S. presence in Cuba, a further vote was held that approved the Platt Amendment without conditions by a 16 to 11 margin.48 Nine of the opponents were from the easternmost part of Cuba, where Guantanamo Bay is located.49 The Constituent Convention ultimately had no choice but to accede to the U.S. demand in order for Cuba to be granted independence. Indeed, the United States even acknowledged years later that the Convention only approved the Platt Amendment after it “finally succumbed to American pressure.”50 The Platt Amendment was thus added as an appendix to the Cuban constitution of 1901, which took effect on May 20, 1902, the day the United States granted Cuba its independence.51 From the start, Cubans resented the Platt Amendment. Both candidates in the new state’s first presidential election, Tom´as Estrada Palma and ´ were backed by political parties that advocated renouncBartolom´e Maso, ing it. But after Estrada Palma won the vote, his government felt legally obliged to comply with its conditions and proceeded to do so.52 The fact that Cuba would be providing the United States with territory for naval stations arguably grew into a bigger issue than it might have been because of the manner by which Cuba became obliged to provide it. As a former Cuban diplomat, Luis Machado y Ortega, noted, “larger and stronger nations than ours, like China, have ceded larger portions of their territory to other powers for naval stations and coaling stations. And nations like ours that we conceive as free and sovereign, like Panama and Nicaragua, have a large part of their territory under the jurisdiction of another nation, without their national dignity being discredited by that.”53 But with Cubans feeling coerced, the legitimacy of the Platt Amendment and the limits it imposed on Cuban sovereignty became subject to ongoing debate within Cuban political and legal circles for years. THE LEASE AGREEMENTS Creation of the Lease, 1903 The United States initially advised Cuba that it sought title to four locations for naval bases—Guantanamo Bay, Bah´ıa Honda, Cienfuegos, and Nipe—and suggested in November 1902 that Cuba cede these parts of its territory to the United States by means of a sale.54 The latter two areas were considered by some on the island to be “the best ports in Cuba,”55 and Estrada Palma succeeded in limiting the United States to accepting only the two other sites, Guantanamo Bay in the south and Bah´ıa Honda in the north. Seizing on an option afforded by the Platt Amendment, the Cuban president also won agreement from the United States to lease rather than buy these areas, which avoided the territorial cessions that a sale would

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have entailed.56 As he described it, “Of two formulas of grant, ‘sale’ or ‘lease’ . . . the one that would least wound Cuban sentiment was accepted. Of such stations we granted the least number possible, and the conditions inserted in the convention regulating the lease of the same are so many more limitations of that grant, all favorable to the Republic of Cuba.”57 Had Cuba sold Guantanamo Bay to the United States, sovereignty would have passed unambiguously to the United States and a century of legal issues regarding activities on the territory relative to its status visa` -vis the United States and Cuba would not have occurred. These issues can all be traced directly to the existence of the lease—an arrangement that allowed sovereign rights to be separated from sovereignty and kept Guantanamo Bay physically outside of the area where U.S. sovereignty exists. The division of sovereign authority had to be anticipated and broadly addressed in the lease to the best ability of the U.S. and Cuban negotiators. It was concluded during an active period of territorial leasing, so that elements from other contemporary leases between states could be taken into account, along with the early performance of some of the leases already in effect. But as with all territorial leases, the one covering Guantanamo Bay and Bah´ıa Honda also involved unique factors for which no models existed. Prominent among these was their objective, as it was a new concept for a state to lease territory from another state for use by its naval forces. The lease itself required two agreements between the United States and Cuba in 1903. The first, an executive agreement signed by Cuban President Estrada Palma on February 16 and U.S. President Theodore Roosevelt on February 23, created the lease and set forth its general terms in three articles.58 Article I detailed the geographic limits of the two territories to be leased. Their perimeters were a series of straight-line boundaries; in the case of Guantanamo Bay their lengths were described in nautical miles, based on a starting point 4.37 nautical miles east of a lighthouse at Windward Point, within the leased area, and in the case of Bah´ıa Honda they were based on distances from physical features. This article stipulated that the United States could use these areas of land and water “for the time required for the purposes of coaling and naval stations,” thereby giving the lease an indefinite duration and specifying the intent for the territories’ use. Article II gave the United States the right to “use and occupy” additional water adjacent to the described areas to make any improvements it deemed necessary to accommodate these activities. It employed more restrictive wording with regard to activities on the territories, stipulating that the leased areas were to be fitted “for use as coaling or naval stations only, and for no other purpose.”59 Article III recognized that Cuba retained “ultimate sovereignty” over the leased areas, with Cuba consenting to the

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United States having “complete jurisdiction and control” over them during the period of U.S. occupation. It also gave the United States the right to purchase or exercise eminent domain over “any land or other property” within the leased areas under conditions that were to be decided by the U.S. and Cuban governments. As an executive agreement, this accord did not require legislative ratification in either the United States or Cuba.60 Nonetheless, Cuban President Estrada Palma submitted it to the Cuban Senate for approval “as a matter of precaution against objection to his individual action,”61 and it was ratified on July 16, 1903.62 The second agreement, a treaty signed by diplomats on July 2, 1903, detailed additional terms of the lease in seven articles.63 Article I specified the compensation that the United States would pay to Cuba for the leased territories: an annual rent of $2,000 in gold coin.64 In line with Root’s concept of the transaction being between two sovereign states, it said Cuba would immediately purchase all privately held land and other property within the areas to be leased. This article stipulated that the United States would supply the funds for this, and Cuba would accept them as advance payments of the rent. Article II mandated that the leased areas be surveyed and their boundaries marked by fences or enclosures that would be built and maintained with U.S. funds. Article III prohibited the establishment or operation of commercial, industrial, or other enterprises within the leased territories. Article IV created reciprocal responsibilities for the two states with respect to fugitives charged with crimes—the United States would return fugitives from Cuban law taking refuge in the leased territories, and Cuba would return fugitives from U.S. law taking refuge in Cuba outside the leased areas. Article V provided for goods and weapons imported into the leased territories to be exempt from Cuban customs duties and stipulated that war material imported for use in the leased areas could not be shipped onward to Cuba. Article VI ensured that vessels entering or leaving the territories leased by the United States would be subject to Cuban laws while in Cuban territory and that the United States would not interfere with Cuban authorities in this regard except in case of war. Article VII set a seven-month deadline for the United States and Cuba to ratify the treaty. The first agreement technically became effective on February 23, 1903, upon being signed by the U.S. and Cuban presidents, but it was not implemented until the second agreement was negotiated and received the necessary presidential approvals and legislative ratifications. The United States and Cuba formally exchanged these ratifications on October 6, 1903. Guantanamo Bay was the first of the territories to be handed over to the United States, but the exact date is uncertain. Cuba proposed in early November that the transfer become formal upon receipt of a U.S. telegraph accepting the proposal, with Bah´ıa Honda to be turned over later.65

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On November 12 the New York Times reported that Guantanamo Bay had passed into U.S. hands “without any formality” and was “effected in a quiet manner several days ago.”66 The U.S. flag was raised at Guantanamo Bay on November 17,67 and a low-key ceremony to mark the start of the U.S. tenancy—Cuban officials, mindful of the opposition to the Platt Amendment, wanted an inconspicuous event68 —occurred on December 10.69 Although the United States began using Guantanamo Bay at that point, it took several years to complete the transactions associated with Cuba’s purchases of private property within the leased areas for handover to the United States. The privately owned land involved six ranches at Guantanamo Bay, where the rest of the territory already was in the hands of the state. U.S. payments to Cuba to cover the cost of buying the ranches—El ´ El Cuzco, Punta de Caracoles, and Mata Cuero, El Ocujal, El Boqueron, Abajo—were not completed until 1906.70 Between the February and July 1903 agreements, a joint U.S.-Cuban commission spent several months surveying the territories being leased. It measured the total area of Guantanamo Bay as 28,817 acres (45.0 square miles), which included 19,621 acres of land and 9,196 acres of water.71 The area leased at Bah´ıa Honda was much smaller, at 1,660 acres (2.6 square miles).72 Also between the two agreements, a separate treaty was signed by the United States and Cuba on May 22 that became the basis for overall relations between the two states.73 Incorporating the contents of the Platt Amendment, it fulfilled the Amendment’s own instruction for a treaty with its clauses and thereby reaffirmed Cuba’s commitment to sell or lease lands to the United States for coaling or naval stations. This had no direct impact on the lease itself, as the two states had already agreed on that form of transaction and were already proceeding to define its terms more precisely. The treaty entered into force on July 1, 1904, after the lease of Guantanamo Bay and Bah´ıa Honda had already begun operating. It was not entirely benign vis-`a-vis the leases, however, because it meant Cuba now had an obligation under international law to sell or lease territories to the United States for coaling or naval stations, and not just an obligation at the municipal level through the Platt Amendment’s presence as a constitutional annex. This protected the obligation from domestic political pressures that might build within an independent Cuba to amend its constitution or draft a new one to exclude the widely disliked Platt Amendment, something over which the United States would no longer have control. Treaty to Expand the Territory, 1912 The viability of the U.S. naval facility at Guantanamo Bay was uncertain from the start. Its development was hindered by the absence of local

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sources of drinking water and the prohibitive cost of supplying it to the site—a process that required transporting the water by aqueduct, tanker car, and barge. An attempt to build a distillation plant for seawater at Guantanamo Bay in 1908 failed when the equipment proved insufficient for the task, and for several years late in the decade the future of the station was in doubt.74 At the same time, the strategic value of its location on Cuba’s southern coast was increasing for the United States because of the Panama Canal, which was under construction and would become a vital factor in the U.S. economy as long as shipping routes in the western Caribbean were secure.75 Only in 1910 did the future of Guantanamo Bay seem assured, when the secretary of the Navy, George von L. Meyer, determined that it could also play an important role in defending the coasts of the southeast United States; in recommending an overhaul of U.S. naval facilities, he urged that Guantanamo Bay be expanded, a move that President William Howard Taft quickly backed.76 By contrast, the United States never developed its site at Bah´ıa Honda, where it had initially envisioned installing a coaling station,77 and the impending change in seaborne shipping routes that the Panama Canal would bring about diminished its potential importance.78 The United States thus approached Cuba in 1910 with a proposal to increase the size of the territory it leased at Guantanamo Bay to include the hills and ridges surrounding the existing site—land that could prove valuable in fortifying it. In exchange, the United States would give up its rights at Bah´ıa Honda.79 The added territory at Guantanamo Bay would be “considerably greater” than the amount of territory leased at Bah´ıa Honda.80 Negotiations took place in 1911 and 1912, and the two states had agreed to a text by November 1912. This was noted by President Taft in his annual address to Congress on December 3: There has been under discussion with the Government of Cuba for some time the question of the release by this Government of its leasehold rights at Bah´ıa Honda, on the northern coast of Cuba, and the enlargement, in exchange therefor of the naval station which has been established at Guantanamo Bay, on the south. As the result of the negotiations then carried on an agreement has been reached between the two Governments providing for the suitable enlargement of the Guantanamo Bay station upon terms which are entirely fair and equitable to all parties concerned.81

The treaty was signed on December 27, 1912, and contained five articles.82 Article I described the enlarged perimeter of Guantanamo Bay, this time using a more complex series of lines—not all straight—and latitudinal and longitudinal measurements.

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Article II stipulated that the rights and obligations contained in the 1903 lease would be extended to the additional territory at Guantanamo Bay. It also raised the compensation to be paid by the United States to Cuba, which would now apply only to Guantanamo Bay, to $5,000 in gold coin. This article also called for the United States to supply funds to Cuba for purchasing any and all private lands and property within the extended area, with these sums being accepted by Cuba as advance payments of the rent. Unlike the 1903 lease, however, it made this action contingent on the U.S. government requesting the Cuban government to make these purchases (the reason for this difference is not known, but it raises interesting legal questions about what would occur in the case of property within the territory that was not acquired by Cuba to lease to the United States in a state-to-state transaction). Article III ensured that all of the elements of the original lease that were not altered by the new treaty were reconfirmed. In Article IV, the United States gives up the rights it obtained at Bah´ıa Honda, and Cuba releases the United States from its duties and obligations relating to that territory. Article V set a six-month deadline for the treaty to be ratified by the two states. The treaty failed to win approval from either the U.S. or Cuban senates within that time period, as Cuban senators allowed it to expire without a vote and the United States, aware of that situation, did not take up the matter. As described in a message from the senior U.S. diplomat in Havana, Minister Plenipotentiary Arthur M. Beaupr´e, to Secretary of State Philander Chase Knox in January 1913: Sir: I have the honor to report that rumors for the past week or so have been current in Havana to the effect that there is a disposition in the Cuban Senate to defer action upon the recent agreement for the enlargement of the Guantanamo naval station. Some senators are said to pretend that they object to alienating such a large portion of the national territory. It is also said that one of their grounds for holding up this agreement is the failure of our own Senate to approve the treaty made several years ago recognizing Cuban sovereignty over the Isle of Pines; they will, it is said, claim this as a precedent for their own inaction. I visited the Cuban Secretary of State yesterday morning and discussed these rumors with him. Mr. Sanguily assured me that, while a disposition was indeed apparent upon the part of the Senate to delay action upon the agreement, there was no actual opposition to its terms—the various objections stated being merely pretext for deferring action. He believes that it is the purpose of certain senators to avoid any responsibility in the matter by leaving the approval of the treaty to the next Senate, which will come into office on May 20th, or, in other words, those whose terms now expire (none of whom were re-elected) may be looking forward to an opportunity of

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The Leasing of Guantanamo Bay making political capital among their constituencies out of the fact that they were sufficiently courageous to oppose the approval of a treaty alienating to a foreign power a considerable portion of the national territory. Mr. Sanguily is of the opinion that it is possible that they may succeed.83

In January 1914 Beaupr´e’s successor, William E. Gonzales, advised Knox’s successor as secretary of state, William Jennings Bryan, that he had been told by Cuba’s secretary of state that the Cuban Senate “is now ready to ratify the treaty” but that a new treaty would have to be signed because the ratification period for the initial one had expired. Gonzales signaled that Cuba was prepared to accept an identical treaty as before, but without the time limit for ratification. However, when the Department of State sought the views of the Department of Navy, it was told that a new treaty was no longer needed. As Bryan wrote to Gonzales later that month: Am informally advised that Navy Department has under consideration complete change of plans in regard to enlargement of naval station. Department hopes to communicate to you in the course of a few days the views of the Secretary of the Navy on this subject.84

The change in plans was never publicly explained, but it was relatively quick in comparison to the several years it took for U.S. military leaders to decide that Guantanamo Bay would be “the proper defensive outpost for the Panama Canal on the Atlantic side” and to develop “elaborate plans” to make it impregnable.85 Despite this, the two states appear to have implemented at least some of the key territorial objectives contained in the unratified 1912 treaty, according to accounts that emerged in succeeding years. Neither the United States nor Cuba made any public pronouncements about these actions, and the full extent to which they carried out the commitments in the treaty remains unknown. The evidence that it occurred, while fragmentary, is nonetheless credible in view of its sources. It allows us to conclude that the area leased by the United States at Bah´ıa Honda did revert to Cuba, although this took some time to become publicly accepted as fact. With regard to expanding the territory leased at Guantanamo Bay, the writings of officials with access to information about such a move, plus clues from documentation from the period, indicate that the United States did proceed with the plan. The rent, however, stayed at the same level that was set in 1903. The failure of the 1912 treaty allowed any growth in the size of the Guantanamo Bay naval station to occur without the transparency that would have been ensured by the treaty, which had specified the new boundaries for the territory. An official inventory of U.S. naval facilities in

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1916 showed that the Guantanamo Bay site comprised 29,667 acres, or 3% more than the 28,817 acres measured by the official U.S.-Cuban surveying commission in 1903.86 Given the degree of surveying precision at the start of the twentieth century,87 the easy conditions for measurement taking (the land area had no topographically inaccessible or ambiguous locations, and surveying at sea was already sophisticated) and the small size of the territory being measured relative to much larger surveyed entities such as U.S. states, this augmentation substantially exceeds any margin of error that might have been plausible. No information about any further increases is known to have been published by either the United States or Cuba. Indeed, the data about Guantanamo Bay that have been disseminated publicly by both states in recent years show its area to be smaller than in 1916 and only marginally greater than in 1903.88 The reports that some expansion did occur after 1912 trickled out over a period of years. “Despite that expiration (of the ratification period), the United States abandoned the naval station at Bah´ıa Honda and occupied the areas included in the agreement expanding the Guantanamo Naval Station, and even expropriated some land to that end,” Luis Machado y Ortega, a Cuban government diplomat and lawyer, wrote in 1922; he urged Cuban authorities to initiate efforts to revive the treaty with the objective of legalizing the situation at Guantanamo Bay and the recovery of Bah´ıa Honda89 —suggesting that whatever actions the two states took in that regard were inconsistent with Cuban (and perhaps also U.S. or international) law. In the United States, the Council on Foreign Relations noted in 1929 that although the treaty of 1912 was never ratified, “the United States gave up its rights at Bah´ıa Honda for increased advantages in the bay of Guantanamo, and now has virtually complete control over a tract of land at Caimanera.”90 In 1934 Manuel M´arquez Sterling, who served briefly as Cuba’s president and held positions as foreign minister and ambassador to the United States, referred to the treaty as “not having been ratified but having been executed,” with Guantanamo Bay “having use of the annexed territory.”91 A year later, the international lawyer and Havana government historian Emilio Roig de Leuchsenring wrote that the area of the Guantanamo Bay facility had increased since 1912 but that its actual boundaries were no longer known—a situation he attributed to a further treaty in 1934 that pertained to Guantanamo Bay, described below.92 The matter became more obscure in 1953 when U.S. Rear Admiral M. E. Murphy, a former commander of Guantanamo Bay, made no reference whatsoever to either the 1912 treaty or any expansion of the area of Guantanamo Bay in his history of the facility, which was highly detailed in what it discussed but acknowledged that there were gaps (“security restrictions require that much be left unsaid that would make interesting history”).93

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The failure of the 1912 treaty left open the possibility for the United States to acquire property, or control over property, directly from private owners to extend the area it leased at Guantanamo Bay in 1903.94 If that occurred, Cuban municipal law would have governed the property transactions and any activities the United States carried out on the additional property, other than those activities covered by rights to sovereign immunity that would have applied anywhere on Cuban territory. Naturally, this would have raised a plethora of legal, political, and administrative questions pertaining to any areas of the Guantanamo Bay naval station that resulted from such acquisitions: what were the nature and scope of U.S. rights on such properties? How would Cuba exercise jurisdiction there? Were U.S. legal obligations on territory covered by the original 1903 lease from Cuba also applicable to land the United States obtained from private owners? Could U.S. naval activities in the original leased area extend into this land, and, if so, would it have been considered occupied in a legal sense? The legal validity of unratified treaties and of the acts that occur in compliance with their terms have long been problematic at the levels of both international and municipal law. There is no information to suggest that such questions were raised with respect to the 1912 treaty at the time such actions were taken, although Machado y Ortega’s plea to legalize the situation later shows that he viewed the actions to be at variance with the law, a sentiment echoed by Roig de Leuchsenring after the new treaty in 1934 (see below). The International Court of Justice, in its 2001 ruling in Qatar v Bahrain, judged an unratified treaty signed in 1913 between Great Britain and the Ottoman Empire95 to be legally binding and stated: “The Court observes that signed but unratified treaties may constitute an accurate expression of the understanding of the parties at the time of signature.”96 Although the parties disputed the reason why the treaty was not ratified (Qatar said the process was disrupted by World War I; Bahrain claimed the content of the treaty was to blame), the court established the “time of signature” as a critical moment, with the intent of the states at that point being sufficiently clear to make the treaty binding in relation to that intent. A similar argument could be made in regard to the 1912 Guantanamo Bay treaty if the diplomatic accounts accurately describe the Cuban Senate’s ultimate readiness to approve it; by contrast, had the Senate opposed the treaty’s content outright, the matter could have raised questions about who speaks for the state in expressing its intent. Meanwhile, Curtis A. Bradley writes that many international law scholars and lawyers consider that signing a treaty imposes certain obligations on a signatory state, and that Article 18 of the Vienna Convention obliges a state that signs a treaty to refrain from acts that would defeat its object

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and purpose unless the state makes clear its intention not to become a party to it. He notes that officials of the U.S. Department of State have, for several decades, expressed the view that this is part of customary international law; such a view, if held institutionally over an extended period, could explain the implementation of key elements of the 1912 treaty. “If the United States is bound by international law not to defeat the object and purpose of treaties that it has signed but not ratified, then the unilateral signature of the president or his agent can bind the United States to certain international legal obligations,” Bradley says.97 Adjustments to the Lease, 1934 With the United States pursuing a “good neighbor” foreign policy with other states in the Western Hemisphere in the 1930s and with criticism of the Platt Amendment still strong in Cuba at the time, the United States proposed in April 1934 to abrogate the treaty signed in May 1903 that governed bilateral relations on the basis of the Platt Amendment and to replace it with a new treaty. Cuba welcomed the idea, and negotiations proceeded quickly; the new treaty was signed on May 29, and after rapid ratifications by both states it entered into force on June 9, 1934.98 Although the abrogation of the 1903 treaty eliminated the United States’ right to intervene militarily in Cuba to preserve the island state’s independence and also eliminated most other elements of the Platt Amendment, the United States retained its lease of Guantanamo Bay. Article III of the 1934 treaty reconfirmed the lease, stating that it would continue in effect with the same terms as those contained in the February and July 1903 agreements until the United States and Cuba either modify or abrogate them. In doing so, it established more clearly the circumstances by which the lease could be terminated: either a U.S. abandonment of the base or a mutual agreement between the United States and Cuba. There was no provision for Cuba to unilaterally end the lease. The 1934 treaty also used terminology that left it unclear how much physical space Guantanamo Bay then occupied, saying that the naval station “shall continue to have the territorial area that it now has, with the limits that it has on the date of the signature of the present Treaty.” Roig de Leuchsenring considered this wording significant insofar as it suggested that the boundaries of the territory may not be the same as those in 1903. He argued that it would have brought any post-1912 expansion of Guantanamo Bay within the legal regime that already applied to the rest of the naval station through the 1903 lease. “If this expansion has in fact been realized, through successive occupations via the purchase of Cuban territory from individuals, these acquisitions now remain legalized in favor of the United States by Article III of the new Treaty of Relations,” he

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wrote.99 His reference to the actual boundaries of Guantanamo Bay being unknown reflects the fact that the 1934 treaty did not detail the dimensions or boundaries of “the territorial area that it now has.” The legal questions raised by any additions of property to Guantanamo Bay after 1912 would have been rendered moot with this clause, but whether eliminating them may have been among the motivations for the 1934 treaty is unknown. Little documentation exists about the treaty’s development or negotiation, as both states were broadly in agreement on its overall content and specific provisions from an early stage and moved very rapidly to complete it.100 In discussing the size of the area under U.S. control, it should be mentioned that an aqueduct to bring water several miles101 from the Yateras River in Cuba to Guantanamo Bay was authorized by both states nearly simultaneously with the 1934 treaty. The aqueduct and water treatment facilities entered into service in 1939 and were expanded in 1941 and 1942. The U.S. Navy bought the water under a long-term contract from Henri Schueg Chassin Company but owned some of the infrastructure outside the leased territory before selling it to Chassin in 1947.102 Olga Miranda Bravo notes that the part of the aqueduct outside Guantanamo Bay was guarded by U.S. military personnel until the Cuban revolution in 1959, constituting U.S. control “such as it could exercise on territory included within the boundaries of the Base,” although the United States had told Cuba that it did not consider this to be an expansion of the area under its control.103 Meanwhile, the 1934 treaty brought somewhat more clarity to the status of Bah´ıa Honda for the first time since the United States agreed to give up its rights there in 1912 as the trade-off for expanding Guantanamo Bay— it indicated that this part of the 1912 accord had been implemented, although without explicitly stating it. The 1934 treaty omitted any reference to Bah´ıa Honda while affirming that the February and July 1903 agreements were to continue in effect for Guantanamo Bay and that the circumstances being introduced for terminating the lease would also apply to Guantanamo Bay. Between 1912 and 1934, Bah´ıa Honda had simply disappeared from U.S. government documents, and its disposition was left to be inferred. When the 1934 treaty also gave it no mention, legal scholars initially seemed less than entirely certain about its status. According to an assessment of the treaty in the American Journal of International Law later that year: “It would appear that the right to this naval station has been abandoned.”104 The abandonment of Bah´ıa Honda eventually became accepted as fact,105 although publicly available documentation on its return to Cuba remains lacking to this day, and it must be deduced on the basis of two factors— the disappearance of Bah´ıa Honda from official lists of U.S. Navy facilities,

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such as the 1916 inventory and subsequent ones,106 and the lack of positive evidence that the United States has retained any rights there as Cuba has developed the area. In narrowing the territorial scope of the lease to Guantanamo Bay, it could be argued that the 1934 treaty also might have sought to narrow U.S. rights there to exclude its use as a coaling station. It referred to the dual 1903 agreements as existing for the purposes of both coaling stations and naval stations, but now it described Guantanamo Bay only as a naval station in reconfirming the lease. In this sense, omitting the reference to a “coaling station” could be viewed as equivalent to omitting the reference to Bah´ıa Honda. However, the behavior of the United States and Cuba after the 1934 treaty entered into force showed that a narrowing of U.S. rights was not intended and that the coaling station’s continuation was simply assumed by the treaty. The U.S. coaling station remained in place, and Cuba exhibited no sign of being displeased with its presence or operation.

CHAPTER 4 OBJECTIVES OF THE LEASE THE COALING STATION A Disappearing Naval Fuel When the Guantanamo Bay lease was created in 1903, the restriction that the United States must use the territory only as a coaling station and naval station reflected a context in which coal was vital for warships and other vessels of the world’s most powerful navies. It became the main fuel for propulsion at sea in the second half of the nineteenth century, having been found more efficient than wood and giving ships more tactical mobility than their predecessors that relied on wind for power. It also gave naval vessels more strategic mobility; no longer dependent on vagaries of the weather, they could travel anywhere as long as coal supplies were available for refueling.1 But coal was not an ideal fuel. It was heavy and dirty, and its dust could explode if ignited. It also posed major logistical challenges because refueling ships at sea was difficult.2 According to Karl Lautenschlager, “A fleet’s endurance now depended on its fuel supply. Its area of operations depended on the proximity of bases. Complex munitions, diverse provisions, and spare parts have since added to the logistics problem, but fuel first made it significant.”3 This challenge was addressed by maintaining stockpiles of coal at various locations around the world so ships could take it on as fuel. As early as 1860, the U.S. Navy had leased a site in the kingdom of Hawaii for this use,4 and in the decades that followed it sought to make a number of other arrangements elsewhere, including territorial acquisitions, but the process was slow. As the New York Times reported in 1891: The importance of securing coaling stations for vessels of the United States was never so urgent as at the present moment. The majority of the new war ships have little or no sail power. They depend almost entirely for motive power on their machinery. Let one of these new cruisers run short of coal and have no means of obtaining a fresh supply and her condition is at once little short of helpless. . . .

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No nation is so well supplied with coaling stations as Great Britain. They cover the entire globe. Every cruising war ship Great Britain builds carries sufficient coal to admit of her running the greatest distance between stations. . . . One thing is certain, Great Britain is determined that when one of her war ships leaves home she shall be independent of foreign ports. In the face of England’s policy, the spectacle is presented of the new American war ships being compelled to barter for fuel from port to port, paying exorbitant sums of money to foreigners, and obtaining, usually, a quality so inferior as to seriously cripple the fighting efficiency of the vessels.5

In the early 1890s efforts were being made to acquire rights to use one of several sites in the Caribbean for a coaling station, ideally “a small and ‘handy’ island, with a good harbor, which can be easily fortified and defended.” Among locations being considered were the island of St. Thomas and Mole St. Nicolas, at the western edge of Haiti and directly across the Windward Passage from Cuba, but Guantanamo Bay was not named.6 Nonetheless, the Spanish-American War prompted the United States to hurriedly install a coaling station at Guantanamo Bay in 1898 after a group of U.S. ships in Cuba ran low on coal and nearly had to return to the United States for more.7 This experience established that Guantanamo Bay was a suitable site for a coaling operation. The coaling station was initially located about two miles into the bay from its mouth, at a site called Fisherman’s Point, but by 1906 it was replaced by a larger coaling station at Hospital Cay, about four miles from the bay’s mouth. It had storage facilities capable of holding 25,000 tons of coal, a 300-foot-long dock where ships with a draft of up to twentyfive feet could be moored, and a gantry crane that could load 500 tons of coal onto these ships every eight hours. Vessels with a deeper draft would stay anchored in bay and the coal would be brought to them on 250- and 500-ton lighters.8 At the time Guantanamo Bay was leased, there was every reason to believe that coal would remain the principal fuel for naval ships far into the future. Oil was already known to have significant advantages—it let ships use smaller boilers and travel further, and they could be refueled at sea—but it was scarce, and in 1904 the U.S. Navy rejected a proposed shift toward oil for its vessels because of the uncertainty of future supplies.9 Yet further oil discoveries and rising production in the United States swayed the Navy toward favoring the fuel, and between 1910 and 1912 it called for all newly built battleships, submarines, and destroyers to run only on oil.10 In 1913 Navy Secretary Josephus Daniels decided that all future naval vessels should burn oil instead of coal,11 and the Navy commissioned new oil-burning ships as it proceeded to convert coal-fired vessels to use oil. By 1916 the Guantanamo Bay coaling station had been joined by a substantial oil supply station, with storage tanks that held 8.9 million

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gallons.12 Another 6 million gallons of oil storage capacity were added by 1918.13 It did not take long for oil to displace coal as the Navy’s main fuel.14 Periodic oil supply crises through the 1920s provided opportunities to return to coal or to retain it as a secondary fuel option, but the U.S. government stayed committed to oil and responded with actions to improve the reliability of the Navy’s oil supplies.15 By the early 1930s the number of naval ships using coal had dwindled to relatively few, and the Navy was shutting down its coaling stations.16 Interpretation of “Coaling Station” The shift away from coal had rendered coaling stations obsolete by the time the United States and Cuba negotiated the 1934 treaty that reconfirmed the Guantanamo Bay lease. Yet the treaty ignored this technological development and reiterated the U.S. right to maintain a coaling station on the territory, without any mention of a facility for oil despite the fact that oil had clearly replaced coal in most U.S. Navy ships by that time. By 1938, only four years after the treaty, the Navy closed the coaling station at Guantanamo Bay after it fell into disuse.17 Why the treaty did not broaden the U.S. right to supply ships at Guantanamo Bay with oil or other fuels remains a mystery, particularly as the United States could have risked losing the right to use the territory as a location for fueling ships as the use of coal ended. The treaty’s nature— a new agreement governing bilateral relations—gave Cuba an opening to withdraw its acquiescence to the oil station that was established there years earlier if it so wished. Although both coal and oil are hydrocarbons, their different physical characteristics require entirely different types of infrastructure and procedures for their handling. This made coaling and oil stations structurally and operationally distinct from each other, so Cuba had a substantive argument it could use if it wanted to oppose the continuation of the oil facility. In fact, the risk of an attack on the oil supply station lent a practical reason for such a challenge: it would have had far more devastating consequences than an attack on a coaling station because oil explodes and pollutes while coal stored in the open simply burns. As George Grafton Wilson wrote in 1912, when coal was still the only fuel supplied to ships at Guantanamo Bay,18 “the use of the station would be an act in the ordinary course of war, and the station would be liable to attack or to other treatment to which enemy territory might be liable. It is also evident that such treatment will be logical, as the agreements by which stations are granted look specially to a condition of war. The territory which is leased for a coaling or naval station gains no immunity from the consequences of war in which the lessee is engaged from the fact

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that the terms of the lease may specify that the sovereignty over the leased territory remains in the lessor.”19 Yet no conflict over this issue arose, for which there are two likely explanations. One is that the unchallenged existence for years of a major oil supply station at Guantanamo Bay showed that both states interpreted this U.S. right expansively, with “coal” seen as representative of other fuels—at least other related hydrocarbon fuels—that might also be used in powering ships.20 This explanation relies on the goal of the fuel supply facility, not its character, being the vital factor. In 2004 the United States confirmed this interpretation on its part, in an article in a Department of Defense publication that noted that “the base was established in 1903 as a coaling station and to this day abides by the original treaty as a support point for refueling ships.”21 Likewise, Sweeney notes that “the transformation of vessel propulsion systems from coal to oil was surely not an essential basis of the agreement,” and that “Cuba’s obligation to provide the land and water areas, and the United States’ obligation to pay rent are not impeded by the change of fuel.”22 The other explanation is that the lease also granted the United States the right to use Guantanamo Bay as a naval station. The scope of activities that routinely occurred at naval stations had grown to encompass fueling operations as coal displaced wind power and wood as the dominant means of ship propulsion. By the time oil was replacing coal as the main fuel in U.S. naval vessels, it was typical for U.S. naval stations, both on U.S. territory and outside it, to include fuel supply operations among their activities.23 THE NAVAL STATION From Station to Base—and Back The terms “naval station” and “naval base” tend to be interchangeable when used informally,24 but there is a difference that is relevant to the Guantanamo Bay lease because the treaty creating it restricted the United States to maintaining a naval station—something defined with clear parameters in U.S. military terminology. At the time the lease was created, a U.S. naval station had a narrower range of activities than a naval base. The Department of the Navy’s General Order No. 135, issued in 1911 as a formal guide to naval terms that were already well-known at the time, described a naval station as “any establishment for building, manufacturing, docking, repair, supply, or training under the control of the Navy. It may include several such establishments.” A naval base, by contrast, was “a point from which naval operations may be conducted and that is selected for that purpose. Its essential feature is an adequate anchorage for a fleet with its auxiliaries, preferably sheltered from the sea and fortified

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against attack.” A permanent naval base, as opposed to a temporary one near a theater of war, “would have docking and repair facilities,” thereby including a naval station among its activities.25 In the 1920s the Navy began using the term “naval operating base” to refer to an installation that had more facilities than a naval station but fell short of being a full naval base. A naval operating base was characterized by “extensive protected anchorage with ready access to open waters and a considerable degree of logistic support.”26 In 1941 the United States formally gave Guantanamo Bay the designation of naval operating base after an expansion that coincided with the outbreak of World War II. A number of facilities had been added, including a large base for the Marine Corps, a separate branch of the Department of the Navy, that was capable of housing two thousand Marines. By 1942 the naval operating base was organized into five components—a naval station, which was its largest activity; a naval air station; a naval net depot 27 ; the Marine Corps base; and an anti-aircraft training center.28 Thus, within a decade after the United States and Cuba reconfirmed the lease of Guantanamo Bay and repeated the restrictions that limited its use to a coaling and naval station, the United States was using the base for activities that (by its own definition of the latter) no longer met either restriction: the coaling station had been completely replaced by an oil supply facility, and the naval station was simply a part of a broader military operation that included four other activities. The lack of Cuban opposition to these developments when they occurred must be seen in the context of bilateral relations. U.S.-Cuban ties rose to a sustained high point after the 1934 treaty eliminated most of the provisions of the Platt Amendment that Cuba had found odious, and as the onset of World War II strengthened Cuba’s economic reliance on the United States by creating uncertainties in other markets for Cuban exports. In this friendly political climate, which allowed basic provisions of the lease to be breached without any record of being challenged, a further expansion of activities at Guantanamo Bay occurred during the Korean War. In 1952 the United States formally designated the site as a full-fledged base, Naval Base Guantanamo Bay, with the naval station as one of seven components.29 When the Department of the Navy reorganized its facilities into sixteen regional commands on October 1, 2003, Guantanamo Bay was one of twenty-one installations placed into the Navy Region Southeast. As part of this process, the base reverted to its designation as a naval station,30 a step that reflected the diminished importance it had assumed for the U.S. Navy in the years preceding the reorganization.31 The downgrade in Guantanamo Bay’s classification was not widely publicized, however,

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which has led to confusion regarding how the installation has been described since then. As late as 2008 the U.S. Navy itself was continuing to refer to Naval Base Guantanamo Bay in some of its documentation. Although the activities of a naval station have evolved over time, the definition remains narrower than that of a naval base in relative terms. One visible change that has occurred in how naval stations (and other naval facilities that are mostly classified as naval air stations, naval support activities, naval activities, and naval bases) are conceived is that they now may house what the U.S. Navy refers to as “tenants”—military entities whose activities are completely separate from those of the naval facilities where they are located.32 These operations may involve other branches of the U.S. armed forces and have little or no naval component. The naval installations support the tenants by providing buildings, electric power, and other necessities but are not involved in the tenants’ operations.33 Military Activities The sum of the activities that occur at a naval facility are meant to foster an ability to participate in military conflicts in addition to providing ongoing support for a state’s strategic goals.34 Because naval operations may be integrated with those of other armed forces of a state, it is not uncommon for a facility to be used for broader military purposes than those it was originally designed to house. Guantanamo Bay exemplifies this, having been the site of a wide range of military activities, not all of them strictly naval, during its evolution from a coaling and naval station into a mature base, with some variation according to the technology of the day and changing strategic needs. Naval activities have included the coaling station and the oil supply depot, ship repair and dry dock facilities, a radio transmission site, an antisubmarine netting center, naval aviation operations, and training facilities. Navy-operated supporting activities have included a water desalination plant and power generating facilities, a bakery, a dairy, a medical installation, and facilities for recreation and education,35 as well as print and broadcast communications media. The non-naval military activities on the territory of Guantanamo Bay have involved various branches of the U.S. armed forces, and for many years the largest activity was the U.S. Marine Corps base. Although the Marine Corps has historical ties to the Navy (it traces its origins to naval landing forces during the Revolutionary War; the corps was formally established in 1798 and was made part of the Department of the Navy in 1834), it has its own command structure within the U.S. armed forces. The Marine Corps base at Guantanamo Bay has been used for training,

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and during the time that the Platt Amendment was in force, the territory was also the site from which U.S. Marines intervened militarily in Cuba.36 The U.S. Army was allocated three areas of Guantanamo Bay in 1904 for purposes of defending the territory and it built two forts, although these were never used. The Army’s tracts were progressively returned to the Navy in 1912, 1928, and 1940.37 Also in 1904 the Department of Commerce was allotted a small area of Guantanamo Bay to operate a lighthouse as well as other facilities for navigation. In 1939 this area was transferred to the U.S. Coast Guard, which was then part of the Department of the Treasury38 ; the Coast Guard subsequently became part of the Department of Transportation in 1967 and was shifted to the Department of Homeland Security in 2003.39 Several longer-term strategic goals, driven by geopolitical issues, have been carried out by the U.S. military forces stationed at Guantanamo Bay. Most notably, these have included controlling Caribbean sea lanes and deterring the Soviet Union’s presence in the region during the Cold War.40 The value of Guantanamo Bay from a military perspective was described by the U.S. Navy in 1963: A glance at the map reveals the strategic importance of the Naval Base at Guantanamo and explains the need for its continued use. It lies at one corner of a strategic rectangle of bases in the Caribbean from which ships and aircraft can be deployed quickly to any trouble spot to assist member nations of the Organization of American States in resisting alien penetration. Naval units based at Guantanamo and at Roosevelt Roads, Puerto Rico, can maintain surveillance over the principal passages to the Caribbean: Windward Passage at the eastern tip of Cuba, Mona Passage between the Dominican Republic and Puerto Rico, and Anegada Passage between Puerto Rico and the Virgin Islands. Guantanamo also protects the eastern approaches to the Panama Canal, one of the most important waterways in the Western Hemisphere. In terms of merchant ship speeds, the Canal saves 21 days steaming time in a voyage from Norfolk to San Diego. Teamed with units from Key West, Guantanamo-based ships and aircraft can effectively patrol the Yucatan Straits connecting the Caribbean and the Gulf. Its key location in the Caribbean and its proximity to the United States mainland, only 500 miles from Miami, make Guantanamo our most important base in the vital Caribbean area. In addition to these strategic considerations, Guantanamo is important for its peacetime role as a major training base for the U.S. Atlantic Fleet. Ships of all types “shakedown” in the Guantanamo area and its large deep-draft harbor provides near-perfect shelter for the largest ships in the Navy as well as a wide variety of smaller ships. As many as forty destroyers can anchor in the bay at one time, while six piers and one wharf can accommodate a large number of additional units.41

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Guantanamo Bay also was valued by the United States for its potential military role in overthrowing the Castro government in Cuba. One project that was proposed within the U.S. Department of Defense (but was not carried out) was called Operation Bingo: a. Objective: The objective is to create an incident which has the appearance of an attack on U.S. facilities (GMO) in Cuba, thus providing the excuse for use of U.S. military might to overthrow the current government of Cuba. b. Concept: This to be accomplished by the use of SNAKES outside the confines of the Guantanamo Base. SNAKES simulate an actual firefight and upon hearing such a sound it is entirely feasible that the immediate reaction on G’Mo would be that the base is being attacked. This would, with proper preparation, be followed by a counterattack and with adequate planning the base at G’Mo could disgorge military force in sufficient number to sustain itself until other forces, which had been previously alerted, could attack in other areas. It is envisaged that a schedule of operations similar to the following would overwhelm the Cuban military and cause its defeat: (1) Simulated attack on Guantanamo. (2) Word flashed to the President. (3) President orders counterattack to include: (a) Immediate launch of alerted aircraft whose targets are Cuban airfields. (b) Immediate launch of counterattack down strategic lines of communication in Cuba. (c) Fleet force standing by on alert would make way toward pre-selected targets/landing areas. (d) Immediate embarkation of airborne troops previously alerted to preselected targets. (e) Launch of additional combat aircraft to clear drop areas and further interdict lines of communication. (f) Ships and aircraft would land/airdrop troops and secure airfields, road/rail terminals, etc. (g) Resupply and replacement activities. Properly executed, the above could overthrow the Cuban Government in a matter of hours, providing the plan is implemented within the next six months.42

The absence of military conflicts in the region has sometimes allowed non-naval military activities to become the principal ones at the base. Guantanamo Bay’s role as a post-9/11 detention center, for example, ended a period in which the base was nearly idle as a naval facility, leading to its subsequent reclassification as a naval station. The detention center, operated by a joint force involving all branches of the U.S. armed forces, required enough personnel that the population of the territory nearly quadrupled, to 9,500.43 “The positioning of a prison for enemy

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combatants from the war on terrorism has focused attention on, and led to the revitalization of, a base that had been in a period of decline,” according to the U.S. government.44 For many decades the military operations at Guantanamo Bay, along with their supporting activities and subsequently other operations at the facility, have relied on civilian as well as military personnel. Many are employed directly by the U.S. Navy, while others are employed by privatesector companies that have won contracts to perform work there. Several thousand Cuban nationals worked at Guantanamo Bay as civilian employees before Cuba’s revolution in 1959; this initially continued on a large scale despite the onset of hostile relations between the United States and Cuba and involved both Cubans who took up residence on the territory and those who “commuted” from Cuba.45 The practice waned over the years and has virtually disappeared.46 Non-Military Activities A naval station or base exists for purposes that are military by nature, but the United States has also used military forces at Guantanamo Bay to conduct state activities that are normally associated with those carried out by civilian authorities. Since the 1960s the base has been used to support antidrug operations by the United States in the Caribbean47 ; during the 1990s it was used as a location for holding and processing large numbers of asylum seekers; and since January 2002 it has been the site of a detention center for alleged Al Qaeda and Taliban fighters who were captured in U.S. military operations against terrorism.48 The activity involving asylum seekers became so intense that at times it was the overwhelmingly dominant one on the territory, despite its bearing no relation to the limited range of naval activities sanctioned by the lease or the broader range of naval activities that Cuba subsequently tolerated. Although Cuba’s government protested this use of Guantanamo Bay in public rhetoric,49 it did not initiate any formal diplomatic or legal challenges. The creation of camps for asylum seekers began in 1991 when the overthrow of the president of Haiti, Jean-Bertrand Aristide, led to violence that prompted thousands of Haitians to flee by sea. The United States adopted a policy of making Guantanamo Bay “a humanitarian sanctuary and a location for interviewing Haitian boat people to allow those with credible claims to be identified and brought to the United States to apply for asylum status,”50 and more than 13,000 were housed at the base51 before they were either sent to the United States or repatriated to Haiti in 1992.52 In May 1994 the United States opened Guantanamo Bay to another wave of Haitians fleeing renewed unrest in Haiti.53 Their numbers grew to more than 21,000 by August, but after Aristide was restored to power in

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October, new repatriations began, and these asylum seekers were returned to Haiti by early 1995.54 While the second group of Haitians were at Guantanamo Bay in 1994, thousands of Cubans who seized a brief opportunity to leave the island by sea were also brought there and housed in separate refugee camps from those housing the Haitians.55 In 1995 most of the Cuban asylum seekers were allowed into the United States, and the following year the camps were closed. At its peak, Guantanamo Bay held as many as 51,000 Haitian and Cuban asylum seekers.56 In 1996 and 1997 Guantanamo Bay was used as a site for the temporary protection of Chinese migrants,57 and in April 1999 the U.S. government decided to use Guantanamo Bay once more as a center for housing 20,000 people to be evacuated from Kosovo amid the ethnic cleansing that Serbia was carrying out in the province.58 The plan for housing Kosovars was dropped without being implemented as the situation in Kosovo began to stabilize and the people resisted the idea of being sent so far away.59 Since then the naval station has continued to house migrants seeking entry into the United States who have been interdicted by the U.S. Coast Guard and brought to shore there. As of late 2007, Guantanamo Bay was housing about thirty migrants at any given time, but facilities were being installed or upgraded to accommodate a much larger number in the event of a new influx of migrants from the Caribbean region. With the exception of the involvement of personnel from the Joint Task Force, a tenant command composed of several thousand troops at Guantanamo Bay drawn from all branches of the U.S. armed forces—the Army, Air Force, Navy, Marine Corps, and Coast Guard—and from the naval station in handling such an influx, a description by the Joint Task Force gave it a decidedly non-military character: This project . . . will actually serve as a regional asset to temporarily house not only political and economic asylum seekers, but victims of natural disasters and other unforeseen events. With the naval station’s advantageous placement inside the Caribbean— though not on U.S. soil—the migrant facility will be well-suited to house refugees who have been displaced long-term by hurricanes or floods that have caused major damage to the infrastructure of their home countries.60

Although it has the appearance and character of a non-military activity, it has been argued that the housing and processing of asylum seekers at Guantanamo Bay in the 1990s—an effort that involved the Joint Task Force—was “a naval operation, and therefore a legitimate mission for the base. More precisely, Thomas Gerth, U.S. State Department representative to GTMO since October 1995, explains, ‘[T]he U.S. Government did not consider it necessary to seek the agreement of Cuba, since the USG

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considered the provision of temporary shelter to Haitians and Cubans rescued at sea a logical function of a naval base.’” This was, however, considered an “extreme interpretation.”61 Maria E. Sartori notes that “temporary protection safe havens on bases in Guantanamo Bay and Panama marked a new type of mission for the American military” in which it addressed security needs “while simultaneously placing military personnel in the novel role of caretaker, supervisor and evaluator of migrant groups.” 62 Once this occurred, however, the U.S. armed forces engaged in other, similar large-scale missions: The participation of the U.S. military was crucial for getting the safe havens ready on short notice, in a matter of weeks rather than months. Marine personnel learned to build camps out of nothing to accommodate 2,500 Cubans within 24 hours. At the time, JTF-16063 was the largest humanitarian mission undertaken in the history of the U.S. military. Since that time, American armed forces have participated in multiple humanitarian interventions including the large-scale humanitarian operations in the Adriatic.64

The U.S. Court of Appeals for the Eleventh Circuit, in its 1992 ruling in Haitian Refugee Center, Inc. v Baker,65 nonetheless referred to “the nonmilitary purpose of detaining refugees” in reviewing a decision by the U.S. District Court for the Southern District of Florida—a sign that it was not entirely accepted in legal circles that an operation heretofore considered to not have a military character assumes that character simply by being undertaken by military forces. The use of Guantanamo Bay since January 2002 as a detention center for alleged Taliban and Al Qaeda terrorists captured in U.S. military operations is another activity that previously had a non-military character, insofar as terrorist acts had traditionally been judged and handled within the U.S. civilian penal system before the events of September 11, 2001. Sweeney writes that although all naval stations have brigs for short-term punishment, a military prison like the one established at Guantanamo Bay is arguably “not a necessary function of a naval station.”66 Nonetheless, per the U.S. Navy’s current concept of a naval station, a tenant activity that is not necessary for a station’s basic naval operations may function there with the Navy’s support and approval. This transforms the issue into whether a given activity at a naval station is valid from a legal perspective—whether the Guantanamo Bay lease obliges the United States to allow only activities that are aligned with a broader international view (or Cuba’s view) of a naval station’s activities; whether the United States, as a sovereign state, may determine what can occur on an entity that it designates as a naval station; and whether such an entity can retain the “shell” designation of “naval station” if the preponderance

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of activities it accommodates are not naval, and perhaps not even military, in character. Whether the detention center at Guantanamo Bay is deemed a valid activity may be influenced by the evolving U.S. notion of the nature of terrorism. Since the 9/11 attacks, the U.S. government has shifted from considering terrorism as a civilian crime toward viewing it as a military enemy. The nature of the phenomenon as viewed by the U.S. legal system may take years to resolve and may ultimately encompass both civilian and military aspects. Like the camps for asylum seekers, the detention center at Guantanamo Bay is operated by the Joint Task Force and its contractors and by other non-naval employees of the U.S. government.67 It became the largest activity on the leased territory in terms of personnel associated with it, considerably overshadowing the naval station’s traditional operations in this measure, and grew to include a series of camps known collectively as Camp Delta, which replaced an original temporary detention camp known as Camp X-Ray.68 Private-Sector Activities Although private-sector businesses were prohibited by the lease from operating at Guantanamo Bay, a limited amount of this activity occurred on the territory from its earliest years. In most cases these businesses provided goods and services that supported the functioning of Guantanamo Bay as a coaling or naval station or helped the U.S. forces stationed there pursue strategic objectives in the region. These businesses were viewed as private-sector extensions of the U.S. military structure, and Cuba was mostly passive about their presence. Examples include the Central and South American Cable Co., which was authorized in 1907 and formally licensed in 1908 to lay and maintain telegraph cables between New York and Guantanamo Bay. It did not derive a profit from the relay station it established at Guantanamo Bay but from the broader cable network of which the station was a vital link. In a legal opinion approved by the secretary of the Navy in 1915, the solicitor of the Navy Department wrote that “where a private cable company had established a Station on the government reservation at Guantanamo under license from the Government and was operating not only for the profit of the Company, but also for the convenience and benefit of the Government, its position was analogous to that of an instrumentality of the Government.”69 In 1908 a general merchandise store owned by a U.S. businessman in the nearby Cuban town of Caimanera, E.P. Pawley and Co., was allowed to open a branch in Guantanamo Bay, “although it was probably

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contrary to the lease agreement which forbade private enterprise on the Reservation.”70 In this case, the permit for the store branch was cancelled in 1910 at the behest of the U.S. secretary of state after Cuban merchants complained that it was violating the treaty and competing unfairly with them.71 In a similar vein, permission was first granted and then rescinded for farmers to let their livestock graze on parts of the leased territory, and the sale of insurance to personnel at Guantanamo Bay was prohibited.72 Prior to World War II, “various Cuban nationals were allowed to live on base, operating private businesses of questionable legality that provided otherwise unavailable fresh milk and meat to military galleys and civilians.”73 An insight into the legal questions that such matters generated can be seen from a series of diplomatic communications in 1920 and 1921 regarding another case involving private-sector communications cables at Guantanamo Bay. The U.S. minister plenipotentiary in Havana, Boaz W. Long, wrote to the acting U.S. secretary of state (the secretary was out of the country) on December 21, 1920: Sir: I have the honor to report that during the past two weeks Mr. Thomas R. Strahan, representing the All America Cables Company, and Doctor de Bustamante, who is the attorney for the above mentioned Company in Cuba, have been attempting to arrange the difficulty which appeared to lie in the landing of the Santiago-Guantanamo Cable at Guantanamo. They informed the Legation that the United States Government did not feel that it was within its powers to grant a permit for the landing of the Cable over Article 3 of the agreement entitled “Lease to the United States by the Government of Cuba of Certain Areas of Land and Water for Naval and Coaling Stations in Guantanamo and Bah´ıa Honda,” signed at Havana on July 2nd, 1903. On the other hand the Cuban Government was of the opinion that the lease granted to the United States, under Article 3 of the treaty between the United States and Cuba, the 20th of February, 1903,74 was such as to preclude the possibility of the Cuban Government granting a permit to land a Cable on what is essentially American soil, due to the above mentioned concession.75

In a reply dated January 21, 1921, U.S. Secretary of State Bainbridge Colby instructed Long to transmit the following message to the Cuban Foreign Ministry: The Government of the United States is informed that All America Cables, Incorporated, desires permission to lay, land, maintain, and operate the following cables at Guantanamo: 1. One or more cables which the Cuban Government, by decree dated July 20, 1920, and numbered 1201, authorized All America Cables, Incorporated, to lay between the city of Santiago de Cuba or any other place in

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the immediate neighborhood designated by the company, and the Bay of Guantanamo. 2. One or more cables which the Government of Cuba, by decree dated July 20, 1920, and numbered 1202, authorized said company to lay between Habana or Cojimar or any other place in the immediate neighborhood selected by the company and the Bay of Guantanamo. 3. A cable from Guantanamo which shall have its other terminal in the Island of Porto Rico, and which may be connected with Santo Domingo and Haiti if the company so elects. It is understood that an application for this concession has been filed with the Cuban Government. All America Cables, Incorporated, also desires permission to maintain and operate its cables now landed at Guantanamo which connect with New York City and Colon. It also desires permission to maintain and operate its relay station at Guantanamo and to receive and transmit all messages which come there over any of the cables of the company wherever situated. Article 3 of the lease signed on July 2, 1903, granting the United States the use of certain areas at Guantanamo as a Naval Station, requires that the United States shall not permit any person, partnership or corporation to establish or maintain within the said areas a commercial, industrial or other enterprise. As it is important that my Government shall have facilities for rapid communication between its Naval Station at Guantanamo and points in the United States and elsewhere, I have the honor to state that my Government will be grateful if the Cuban Government will consent to such a modification of Article 3 of the lease of July 2, 1903, as will permit All America Cables, Incorporated, to lay, land, maintain, and operate the aforesaid cables at Guantanamo; to maintain and operate its cables now landed at Guantanamo which connect with New York City and Colon; to maintain and operate its relay station at Guantanamo, and to receive and transmit all messages forward[ed] over its lines. This request is not intended to cover any further modification of the Article in question than that which would enable All America Cables, Incorporated, to land and operate the cables just mentioned. My Government is of the opinion that if the Government of Cuba is disposed to approve the proposed modification of Article 3 of the lease of July 2, 1903, in the manner above indicated such modification can be regarded as consummated by the delivery to me of a note from the Cuban Government acquiescing in my Government’s request.76

This resulted in the following response from Cuban Secretary of State Pablo Desvernine in a letter to Long on April 5, 1921. It reads in part: In reply, it affords me pleasure to inform Your Excellency that the President of the Republic accepts the aforesaid proposal transmitted by Your Excellency on behalf of the Government of the United States in your Legation’s note No. 279 of March 31 last.77

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The “modification” of Article 3 of the lease thus occurred in a manner that entailed no actual change in its wording. It was, in effect, nothing more than a mutually agreed derogation with a narrow application to this particular case, and it did not settle any broader questions about whether the lease could be interpreted to allow certain private-sector enterprises to operate at Guantanamo Bay, and, if so, which ones and under what circumstances. In a general sense, the United States tended to deny businesses the right to operate at Guantanamo Bay if the Cuban government raised objections, but this was not always the case, as the United States did reject Cuban requests to shut down some private-sector business activity that helped the base function. With Cuba once again limiting its challenges to the diplomatic realm and not pursuing them legally, parameters emerged by the late 1920s according to which businesses were deemed acceptable if they provided direct support for the base’s operations or were “conducted under the direct supervision of the Commandant for the health and comfort of base personnel.”78 This general rule has prevailed to the present day, and private-sector businesses operating at the naval station in recent years have included retail outlets of the fast-food chains McDonald’s and KFC. Another fastfood outlet, Taco Bell, began operating there in 2008.79 Nonetheless, the market for commercial enterprises at Guantanamo Bay is not always straightforward. As the Navy allows non-naval tenants to operate on the territory, and as the U.S. government has increasingly turned to private-sector contractors to perform activities previously handled by the armed forces themselves, a significant proportion of the personnel at Guantanamo Bay are non-naval military personnel or civilians working for companies under contract to the armed forces for various projects. One result is that private-sector entities that directly support the Navy’s own operations also support non-naval military tenants such as the Joint Task Force. They may also support the operations of other private-sector entities that are on the territory under contract.80 In addition, non-naval military tenants at Guantanamo Bay may engage commercial businesses through their own contracting processes, which are separate from that of the U.S. Navy, with the outcome that these private-sector companies may be active on the territory without having any relationship with the naval station. Typical of this was a one-year contract awarded by the U.S. Department of the Army in September 2007 to Alarm Tech Services Inc. for managing and maintaining surveillance and automated security systems used by the Joint Task Force at Guantanamo Bay.81 The acceptance by Cuba of a certain degree of private-sector activity at Guantanamo Bay has not been without reciprocity, and this has

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allowed Cuba to derive some benefit from it. Cuban commercial fishermen, for example, have been allowed to fish in the waters of the leased territory and sell their catches to Cubans after they were back outside it.82

CHAPTER 5 JURISDICTION AT GUANTANAMO BAY JURISDICTION Levels of Jurisdiction in Leased Territories As we have seen, the determination of jurisdiction in leased territories can vary widely, because leases create deviations from the concept of states exercising exclusive jurisdictional rights over their territory as an element of their sovereignty. To accommodate the handling and administration of legal issues that arise on a leased territory, the allocation of jurisdiction is normally addressed in the lease itself, but in the history of territorial leasing, no dominant models for this allocation have emerged in the practice of states. Consequently, a decision or ruling about jurisdiction on a leased territory may not be directly relevant to a similar circumstance in another leased territory—a situation that can exist not only at the international level but also at the municipal level, because the same state may be the lessee or lessor of more than one territory, and the terms of its individual leases can vary.1 Gaps in jurisdictional coverage are frequent and are typically addressed through political or judicial decisions that are made about circumstances only as they occur. Even when states establish clear jurisdictional responsibility for a leased territory between themselves, this is not always sufficient to prevent questions about jurisdiction from arising many years after the leasing arrangement enters into force, and the proliferation of jurisdictional questions arising from the Guantanamo Bay lease illustrates this. The reason is that allocating jurisdiction is a complex and imperfect art that occurs at more than one level, even in the simplest of cases. On the international plane, states must consider the lessee’s desire for rights on the territory, the lessor’s interest in protecting its sovereignty over it, and the nature of occurrences that may require jurisdiction to be exercised by one or the other state. The second level where questions of jurisdiction can

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arise is within each state itself, and it is here where the jurisdictional issues pertaining to Guantanamo Bay have occurred. At the first level, between the lessee and lessor states, the division of jurisdictional rights is fundamental to the operation of the lease as a bilateral instrument, as it determines which state has the authority to adjudicate the various types of situations that occur on the territory.2 The terms of territorial leases normally address jurisdiction with only this level in mind, however, as the agreements are meant to govern relations between the states as they pertain to the leased territory. At the second level, within each state, the question of jurisdiction over a leased area involves determining how the state’s legal system addresses jurisdiction on territory that is geographically separate and legally distinct from the territory where the state exercises exclusive and comprehensive jurisdiction as part of its sovereign authority, and reconciling the differences that exist. For purposes of applying its legal system, either a lessee or lessor state may consider a leased territory as tantamount to its own sovereign territory, as foreign territory, or as something in-between. Thus, a lessee state with jurisdictional rights at the bilateral level may, at the state level, deem that its legal relationship with the leased territory precludes it from exercising that jurisdiction in all respects. This is something for the state itself to resolve through whatever constitution and legal system it has developed on its own as a function of its status as a sovereign state; it cannot be imposed from the outside. In cases where a territory is leased for military purposes, jurisdictional questions may involve still another level if the state maintains separate civilian and military legal systems. These questions tend to involve which system and laws apply to civilian nationals of the lessee or lessor state who are on the leased territory, and whether or not their presence or activity is directly related to the military operations that occur there. Issues in this realm may also involve determining which system has jurisdiction over third-state nationals who are present on the leased territory and in what circumstances. At all of these levels, the jurisdictional questions stem from the territory’s status as an area where neither the lessee nor lessor state exercises sovereignty in the same way it does on its core territory. Because the terms of territorial leases fail to address jurisdictional questions that are entirely at the state or sub-state level, municipal case law typically emerges as the determinant. The variations that exist among territorial leases and national legal systems can make this a piecemeal approach, however, and it is complicated further by the fact that questions about jurisdiction can span more than a single level. As Margalida Capell`a i Roig observes, “It is precisely in the matter of jurisdiction that the cession of Guantanamo appears most complex.”3

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U.S. Jurisdiction at Guantanamo Bay The Guantanamo Bay lease left no uncertainty about the framework of jurisdiction at the bilateral level. It gave the United States “complete jurisdiction and control” over the territory, creating a simple and unambiguous division when viewed in relative terms: U.S. jurisdiction was 100%, and Cuba’s was zero. Yet the term “complete jurisdiction” was not applied at the level of the U.S. municipal legal system. Indeed, when the lease was still new, the United States had already determined that its jurisdiction at Guantanamo Bay did not match the scope of its jurisdiction on U.S. sovereign territory. Writing at the time, Wilson said that “the United States . . . has only a qualified jurisdiction over these regions (Guantanamo Bay and Bah´ıa Honda) and not sovereignty . . . and the conditions of exercise of jurisdiction in these leased areas are accordingly unlike the conditions within the areas over which the United States exercises sovereignty.”4 This reflected the reality of the years preceding the Guantanamo Bay lease. U.S. jurisdiction in territories that were not U.S. states but were under U.S. control was a matter that had never been treated consistently either by legislation, which sometimes would cover these territories and sometimes would exclude them, or by judicial rulings on whether the Constitution automatically extended to them. The situation was described by the U.S. Supreme Court in its 1901 ruling in Downes v Bidwell: The researches of counsel have collated a large number of . . . instances in which Congress has in its enactments recognized the fact that provisions intended for the states did not embrace the territories, unless specially mentioned. These are found in the laws prohibiting the slave trade with “the United States or territories thereof”; or equipping ships “in any port or place within the jurisdiction of the United States”; in the internal revenue laws, in the early ones of which no provision was made for the collection of taxes in the territory not included within the boundaries of the existing states, and others of which extended them expressly to the territories, or “within the exterior boundaries of the United States”; and in the acts extending the internal revenue laws to the territories of Alaska and Oklahoma. . . . It is sufficient to say that Congress has or has not applied the revenue laws to the territories, as the circumstances of each case seemed to require, and has specifically legislated for the territories whenever it was its intention to execute laws beyond the limits of the states. Indeed, whatever may have been the fluctuations of opinion in other bodies (and even this court has not been exempt from them), Congress has been consistent in recognizing the difference between the states and territories under the Constitution. The decisions of this court upon this subject have not been altogether harmonious. Some of them are based upon the theory that the Constitution does not apply to the territories without legislation. Other cases, arising from territories where such legislation has been had, contain language which would

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justify the inference that such legislation was unnecessary, and that the Constitution took effect immediately upon the cession of the territory to the United States. It may be remarked, upon the threshold of an analysis of these cases, that too much weight must not be given to general expressions found in several opinions that the power of Congress over territories is complete and supreme, because these words may be interpreted as meaning only supreme under the Constitution; nor, upon the other hand, to general statements that the Constitution covers the territories as well as the states, since in such cases it will be found that acts of Congress had already extended the Constitution to such territories, and that thereby it subordinated, not only its own acts, but those of the territorial legislatures, to what had become the supreme law of the land. “It is a maxim not to be disregarded that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.” Cohens v Virginia, 6 Wheat 264, 399, 5 L ed 257, 290.5

Six decades into the Guantanamo Bay lease, Gary L. Maris commented that “it is sometimes difficult to determine just which United States laws apply to Guantanamo” based on court rulings and legal opinions up to that point. “The failure of Congress to refer explicitly to leased areas such as Guantanamo will probably continue to result in a case-by-case approach by United States authorities when questions arise as to which legislation is to apply to Guantanamo. The guidelines seem to be either Congressional intent or simply what seems reasonable to the interpreting authority.”6 The Downes v Bidwell ruling established that a territory where the United States had jurisdiction was to be considered incorporated into the United States, yet a 1932 determination by the U.S. secretary of state held that the Fourteenth Amendment right to U.S. citizenship through birth in the United States did not apply to Guantanamo Bay because it “has never been incorporated into or become a part of the ‘United States.’”7 Opposite interpretations like these have occurred throughout Guantanamo Bay’s history as a leased territory, effectively prolonging the situation the U.S. Supreme Court described in Downes v Bidwell. With both sides of jurisdictional questions being readily supportable by sound arguments based on well-established rulings and opinions, legal decisions about jurisdiction at Guantanamo Bay have remained inconsistent to this day. Nonetheless, trends toward greater or lesser completeness in U.S. jurisdiction emerged from time to time. The U.S. Defense Base Act of 19418

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ensured that the Longshoremen’s and Harbor Workers’ Compensation Act of 1927,9 which provided compensation for the injury or death of any employee, applied to “any lands occupied or used by the United States for military or naval purposes in any Territory or possession outside the continental United States” and named Guantanamo Bay as one of them. As time passed, the application of U.S. labor laws in a general sense came to be extended to U.S. civilian employees at Guantanamo Bay,10 as were criminal laws and some constitutional rights.11 However, due to the case-by-case nature of this process and the potential under international law for sovereignty over a leased territory to shift between states when the right conditions exist, legislators and courts found themselves repeatedly faced with deciding whether U.S. “complete jurisdiction and control” meant it had de jure or de facto sovereignty over the territory or gave the United States a relationship with the territory that was so similar to either idea of sovereignty that a given law warranted application there. Among cases that refined this relationship was the 1948 Supreme Court ruling in Vermilya-Brown Co., Inc. v Connell,12 which held that the Fair Labor Standards Act was applicable on another military base that the United States leased from Great Britain in Bermuda under an arrangement that was conceptually similar to the Guantanamo Bay lease. The court rejected the argument that having “all rights, power, and authority” over the base was equal to sovereignty, but it did find the base to be a “possession” of the United States, and because the geographic scope of the Act’s application included U.S. possessions, the Act was held to apply there. In doing so, the court had to define the term “possession,” as it was not previously “descriptive of a recognized geographical or governmental entity.” This case illustrated that whereas a territory leased by the United States was not sovereign U.S. territory, its legal status relative to sovereignty could influence the presence of U.S. jurisdiction. The matter came up again in the 1951 case of Cobb v United States,13 in which the Court of Appeals for the Ninth Circuit found Okinawa to be a “foreign country” and thus outside the jurisdiction of the Federal Tort Claims Act14 despite the United States having the “exclusive power to control and govern the island”—a situation analogous to the “complete jurisdiction and control” at Guantanamo Bay: The United States Military Government now governs, and will continue indefinitely to govern, the island of Okinawa, free from interference by other powers. The will of the United States is in fact the “supreme will” on Okinawa. The United States has therefore acquired, and still retains, what may be termed a “de facto sovereignty.” However, the traditional “de jure sovereignty” has not passed to the United States. The conqueror does not acquire the full rights of sovereignty merely

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by occupying and governing the conquered territory without a formal act of annexation or at least an expression of intention to retain the conquered territory permanently. It does not necessarily follow, therefore, that Okinawa is not a “foreign country” within the meaning of the Tort Claims Act.

A half century later, in 2000, in United States v Corey,15 the Ninth Circuit Court held that the United States did have jurisdiction over an Air Force base in Japan and a private apartment in the Philippines that was leased by the U.S. government for embassy employees, as both were “acquired for the use of the United States.” Seth J. Hawkins notes that the court used a “practical usage and dominion” standard in this case, acknowledging that the United States had more power than the host state, although this, too, did not equal U.S. sovereignty. “Here is another instance where U.S. courts have exercised jurisdiction in areas realistically under the exclusive control of the United States, while refusing to accept complete ‘sovereignty,’” he writes.16 Meanwhile, an unpublished opinion by the judge advocate general of the Navy17 had placed Guantanamo Bay under the “special maritime and territorial jurisdiction of the United States,” which covers, inter alia, “the high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State” plus “any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof.”18 With respect to this jurisdictional coverage vis-`a-vis international law, Jordan J. Paust writes: The phrase “territorial jurisdiction of the United States” necessarily conditions the rest of the meaning of § 7(3), especially related words like “lands . . . under the jurisdiction.” Moreover, because courts must construe federal statutes consistently with international law if at all possible, and under international law it would not be lawful for the United States to assert “territorial jurisdiction of the United States” over a U.S. embassy, military installation, or apartment unit in foreign state territory, § 7(3) must be construed accordingly. To stress the point, whatever rights or controls might have been consented to under the Vienna Convention on Diplomatic Relations, concerning embassy property, or a Status of Forces Agreement (SOFA), concerning a military installation, simply cannot be labeled “territorial jurisdiction of the United States,” and no such international agreement confers or recognizes “territorial jurisdiction” in the sending state. Indeed, to do so would have dire policy consequences and constitute a serious affront to territorial states. They would be rightly outraged by a claim that any grain of their soil is either territory of the United States or land subject to the “territorial jurisdiction of the United States.”19

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In this context, he points out, Guantanamo Bay, particularly with its history since the Cuban Revolution of 1959, is an anomaly, specially occupied during the Cold War with Cuba, in a context where the U.S. government has refused to recognize the Cuban regime, has engaged in acts of war with Cuba since the Bay of Pigs invasion, and has retained the territory as a military occupier. Moreover, the federal district court in Haitian Centers Council, Inc. v McNary20 recognized an additional reason why Guantanamo Bay has a unique status. Under a 1903 agreement, modified and continued in 1934, between Cuba and the United States, “Guantanamo Bay is a military installation that is subject to the exclusive control and jurisdiction of the United States.” To emphasize the territory’s unique status, the court quoted from the agreement and italicized the following language: “the United States shall exercise complete jurisdiction and control within the said areas.”21

Paust notes that the lease agreement had, as a stated objective, “to allow U.S. control for ‘coaling and naval stations only, and for no other purpose.’” He adds that “to the extent that the use of Guantanamo Bay by the United States over the last 40 years has exceeded such purposes, U.S. control backed by the exercise of military power has been functionally equivalent to territorial occupation, creating related territorial competencies and responsibilities.” Events at Guantanamo Bay since 1991 have resulted in a series of court decisions that refined U.S. jurisdiction at Guantanamo Bay, notably as it pertained to the constitutional rights of non-U.S. nationals being held on the island as asylum seekers or prisoners in the U.S. fight against terrorism. This sequence of cases, described later in this book, ultimately led to the Supreme Court’s 2008 landmark ruling in Boumediene v Bush that the Constitution indeed applies on the territory. Cuban Jurisdiction at Guantanamo Bay In contrast to the ongoing questions in the United States about the scope of its jurisdiction at Guantanamo Bay, Cuba has consistently viewed its own jurisdiction to be nil, in line with the 1903 lease, and as a consequence it has not sought to exercise legal jurisdiction on the territory. This has remained the case despite public assertions by Cuba since the 1959 revolution that the lease is not legally valid. Likewise, the United States has behaved in line with the jurisdictional circumstances created by the lease. As noted by Baher Azmy, “Cuban laws have no force or effect on Guantanamo; in its isolated physical space, the only legal authority is American.”22 According to Hawkins, “No court has ever applied, or even recognized, any sort of Cuban law to an act occurring at the Guantanamo base.”23

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A Cuban Supreme Court decision in 1934 affirmed that Cuba had no authority to exercise its municipal legal system on the base. The ruling, in the case of In re Guzman & Latamble, involved the question of whether Cuban import duties must be paid on goods transported across the boundary from the leased territory into the territory where Cuba exercised full sovereign rights: The defendants had been found guilty of importing three hogs from the United States naval station at Caimanera, on Guantanamo Bay, into a neighboring place in Cuba, without payment of customs duties. The defendants claimed that the hogs had already been in Cuba when they were at the naval station, and therefore that they had not brought them in without payment of duties. Upon appeal by the defendants, Held: that the conviction must be affirmed, for “the territory of that Naval Station is for all legal effects regarded as foreign.”24

This ruling occurred in February 1934, two months before the United States and Cuba began negotiations that led to the treaty that reconfirmed the Guantanamo Bay lease later that same year.25 Recent U.S. Jurisdictional Issues Questions that have arisen in recent years about U.S. jurisdiction at Guantanamo Bay can be traced back to the shift in activities on the base in 1991, when it was first used for holding and processing Haitian asylum seekers under a program that involved repatriating to Haiti those whose asylum claims were unsuccessful. The U.S. government determined that it could speed the processing of asylum seekers brought to the base because the Immigration and Nationality Act of 195226 did not oblige it to follow the same legal procedures with asylum seekers at Guantanamo Bay that it did with asylum seekers on sovereign U.S. territory.27 This, it reasoned, was because the Act did not include Guantanamo Bay in its definition of U.S. territory: The term “United States,” except as otherwise specifically herein provided, when used in a geographical sense, means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands of the United States.28

The U.S. government also determined (again on the basis of the Immigration and Nationality Act’s definition of the United States) that an entity formed to aid and advise the asylum seekers, Haitian Refugee Center, Inc., did not have rights under the First Amendment to the Constitution to have access to those held at Guantanamo Bay. When this was challenged

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by Haitian Refugee Center, the U.S. District Court for the Southern District of Florida supported the group, citing the jurisdictional aspect of the lease’s terms: The United States’ lease of the land for the Guantanamo Naval Base provides that “during the period of 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 . . . .” . . . We find a substantial likelihood that a United States citizen can invoke the first amendment in an area over which the United States exercises complete jurisdiction.29

In 1992 the U.S. Court of Appeals for the Eleventh Circuit rejected this view, ruling that asylum seekers who were interdicted on the high seas by U.S. authorities to prevent them from reaching U.S. sovereign territory did not, in being brought to Guantanamo Bay, reach U.S. sovereign territory. Consequently, the United States did not have the jurisdictional obligation at Guantanamo Bay to apply the due process rights that the Immigration and Naturalization Act grants to asylum seekers on U.S. sovereign territory: The plain language of the statute is unambiguous and limits the application of the provision to aliens within the United States or at United States’ borders or ports of entry. . . . The plaintiffs in this case have been interdicted on the high seas and have not yet reached “a land border” or a “port of entry.” Therefore, their claims under the INA must fail.30

The Eleventh Circuit Court likewise judged that the United States was not obliged to apply the First Amendment right claimed by Haitian Refugee Center. That same year, however, the U.S. Court of Appeals for the Second Circuit judged that the Fifth Amendment to the Constitution did apply at Guantanamo Bay. In Haitian Centers Council, Inc. v McNary, which considered this question vis-`a-vis “screened in” Haitian asylum seekers at Guantanamo Bay (those found to have a credible fear of persecution if they returned to Haiti), the court noted that “both United States citizens and aliens alike, charged with the commission of crimes on Guantanamo Bay, are prosecuted under United States laws,” and stated: Guantanamo Bay is a military installation that is subject to the exclusive control and jurisdiction of the United States. The Supreme Court has recently reaffirmed that fundamental constitutional rights are guaranteed to inhabitants of territory where the United States has sovereign power. See United States v Verdugo-Urquidez, 494 US 259, 268, 110 S Ct 1056, 1062, 108 LEd2d 222 (1990) (“Only ‘fundamental’ constitutional rights are guaranteed to inhabitants of [unincorporated] territories [not clearly destined for statehood].”). In its later discussion of Johnson v Eisentrager, 339 US 763, 70 S Ct 936, 94 LEd

Jurisdiction at Guantanamo Bay 1255 (1950), which involved convicted, enemy aliens in occupied territories outside the United States, the Court stated that it “had rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.” Verdugo-Urquidez, 494 US 269, 110 S Ct 1063. We believe the question remains unanswered and raises serious questions going to the merits of appellees’ claim that the fifth amendment applies to non-accused, non-hostile aliens held incommunicado on a military base within the exclusive control of the United States, namely Guantanamo Bay. It also raises questions such as whether the treatment of civilians and aliens alike, by the authorities on that military base implies that these persons enjoy due process in terms of civil and criminal laws applied there, and, if so, suggests that the “screened in” plaintiffs also must be accorded due process of law, including access to attorneys who in this case appear ready, willing and able to counsel and assist the Haitian plaintiffs at no expense to the government for their services. Justice Kennedy observed in his concurrence in Verdugo-Urquidez, “the Constitution does not create, nor do general principles of law create, any juridical relation between our country and some undefined, limitless class of noncitizens who are beyond our territory.” Ibid., 275, 110 S Ct 1066 (Kennedy, J., concurring). However, the interdicted Haitians are not “some undefined, limitless class of noncitizens who are beyond our territory,” they are instead an identifiable group of people who were interdicted by Americans in international waters pursuant to the binding Agreement Between the United States of America and Haiti, and who have been detained on territory that is subject to the exclusive control of the United States. In short, in this case the United States has exercised its “undoubted power . . . to take actions to assert its legitimate power and authority abroad,” Ibid., 277, 110 S Ct 1067, in both interdicting and bringing these Haitians to territory controlled by the United States. It does not appear to us to be incongruous or overreaching to conclude that the United States Constitution limits the conduct of United States personnel with respect to officially authorized interactions with aliens brought to and detained by such personnel on a land mass exclusively controlled by the United States. See United States v Tiede, 86 FRD 227 (US Ct Berlin 1979). . . . It appears from our brief references discussed above that arrested and accused aliens at Guantanamo Bay, Cuba, are subject to United States criminal laws—and it may be shown upon a fuller record that United States civil laws apply to the conduct of all aliens on the base as well—thus, by implication, the due process clause of the fifth amendment applies to them. We believe there is no principled basis for concluding that the “screened in” plaintiffs detained at the base would have fewer substantive rights than these other aliens. Courts have determined that the due process clause applies to both the statutory asylum procedure employed by the INS,31 see Augustin v Sava, 735 F2d 32, 37 (2d Cir 1984), and the treatment of excludable aliens detained within the United States. See Lynch v Cannatella, 810 F2d 1363, 1374 (5th Cir 1987); Rodriguez-Fernandez v Wilkinson, 654 F2d 1382, 1387 (10th Cir 1981). Although the INA32 does not extend to Guantanamo Bay, there is a serious question whether the reach of the Constitution does, and we believe there

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The Leasing of Guantanamo Bay exist serious questions going to the merits of the appellees’ claim that since Guantanamo Bay is under the “complete jurisdiction and control” of the United States, the “screened in” plaintiffs may avail themselves of the protections of the due process clause of the fifth amendment to ensure that United States officials afford them due process.33

The Second Circuit Court’s ruling was later vacated, and in 1995 the Eleventh Circuit Court reaffirmed its own earlier judgment, this time with respect to Cuban asylum seekers who were interdicted and brought to Guantanamo Bay. In Cuban American Bar Association, Inc. v Christopher,34 it overturned a district court decision that judged the Cubans to have constitutional rights at Guantanamo Bay by virtue of the “complete jurisdiction and control” that the United States had over the leased territory. Saying that the district court “erred in concluding that Guantanamo Bay was a ‘United States territory,’” the Eleventh Circuit Court declared the Cuban asylum seekers to be outside the United States. “We disagree that ‘control and jurisdiction’ is equivalent to sovereignty,” it said. The following year, the issue of sovereignty over Guantanamo Bay arose again with respect to the Federal Tort Claims Act, which Cobb v United States determined the United States had no jurisdiction to apply on Okinawa because it was not sovereign U.S. territory. In this case, Bird v United States, which alleged malpractice by a physician at Guantanamo Bay’s military hospital, the U.S. District Court for the District of Connecticut rejected the argument that Guantanamo Bay was sovereign U.S. territory regardless of whether it had de facto sovereignty through its historic and ongoing exercise of exclusive control and administration: In contrast to the then-ambiguous legal status of post-war Okinawa, there is a valid treaty delineating the sovereignty rights over Guantanamo Bay. . . . Because the 1903 Lease of Lands Agreement clearly establishes Cuba as the de jure sovereign over Guantanamo Bay, this Court need not speculate whether the United States is the de facto sovereign over the area. . . . Since sovereignty over the Guantanamo Bay does not rest with the United States, the plaintiff’s claim is barred under the “foreign country” exception of the FTCA.35

However, the court noted that the lack of U.S. jurisdiction at Guantanamo Bay was specifically in reference to the Federal Tort Claims Act and was not a general condition despite Cuba’s de jure sovereignty over the territory: Although not asserted in this action, the defendant notes that Ms. Bird may have remedies under the Military Claims Act, 10 U.S.C. § 2733 (1993), subject

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to a $100,000 limit, for personal injuries or death “caused by a civilian officer or employee of the Department of Defense acting within the scope of his employment or otherwise incident to noncombat activities. . . . ”36

The rulings by the Eleventh Circuit Court in the cases involving the Haitian and Cuban asylum seekers became the basis for the U.S. use of Guantanamo Bay as a detention center for alleged terrorists captured abroad in military operations after September 11, 2001. Various considerations were weighed in selecting a site for the prison, but it was the extrajurisdictional aspect of the base that the rulings imparted that made Guantanamo Bay particularly attractive for the U.S. authorities who determined where and how these prisoners should be handled. “The one thing we all agreed on was that any detention facility should be located outside the United States,” notes John Yoo, a former deputy assistant U.S. attorney general who participated in formulating the detention policy.37 The question of whether the prisoners held at Guantanamo Bay have a constitutional right to habeas corpus, allowing them to challenge the legality of their detention, was the key jurisdictional issue arising from the detentions. Yoo, referring to the Eleventh Circuit Court decisions, noted that the fate of the Haitian refugees at Guantanamo Bay “suggested that the federal courts probably wouldn’t consider Gitmo as falling within their habeas jurisdiction, which had in any event been understood to run only within the territorial United States or to American citizens abroad.”38 To a greater or lesser extent, the issue of Guantanamo Bay’s status as a leased territory has entered into all of the significant cases brought in U.S. courts about the rights of the post-9/11 detainees held there, but one case that was decided in 2004 focused on the territorial issue in particular— Rasul v Bush, in which the U.S. Supreme Court weighed the question of “whether United States courts lack jurisdiction to consider challenges to the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at the Guantanamo Bay Naval Base, Cuba.”39 The District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit had both determined that the Guantanamo Bay prisoners lacked habeas corpus rights because of a 1950 Supreme Court ruling in the case of Johnson v Eisentrager,40 which held that U.S. civilian courts had no jurisdiction to hear challenges to the detention of German citizens who were captured, tried, and convicted of war crimes by U.S. military authorities in China and transferred to a U.S. military prison (Landsberg Prison) in Germany. The District Court had said the absence of jurisdiction was based on the fact that the case involved “aliens detained outside the sovereign territory of the United States.”41 In 2003 the Court of Appeals ruled that the right

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to challenge the detention “does not extend to aliens in military custody who have no presence in ‘any territory over which the United States is sovereign.’”42 In ruling on this case, Al Odah v United States, the appeals court noted that Sovereignty . . . meant then—and means now—supreme dominion exercised by a nation. The United States has sovereignty over the geographic area of the States and, as the Eisentrager Court recognized, over insular possessions . . . . Guantanamo Bay fits within neither category.43

In the case, later consolidated with Rasul v Bush, the appeals court elaborated the parallels between the prisoners at Guantanamo Bay and those in Johnson v Eisentrager: “[They] were captured during military operations, they were in a foreign country when captured, they are now abroad, they are in custody of the American military, and they have never had any presence in the United States.”44 In reversing these decisions in Rasul v Bush, the Supreme Court seized upon the differences in the circumstances involving the German prisoners in Johnson v Eisentrager and the prisoners at Guantanamo Bay. These included the fact that the detainees at Guantanamo Bay were not citizens of states that were at war with the United States; they had never been charged or convicted of crimes; and they were being held on territory over which the United States has jurisdiction and control.45 The division among jurists about whether the similarities or differences took precedence may have been settled in Rasul v Bush, but the fact that arguments about the applicability of Johnson v Eisentrager were so evenly weighted was evident from a separate set of lower court rulings in the case of Gherebi v Bush. In that case, a petition for habeas corpus failed at the district court level in May 2003 on the basis of the Johnson v Eisentrager ruling, but the Court of Appeals for the Ninth Circuit reversed the decision later that year. After determining that sovereignty is not a prerequisite for jurisdiction, it continued: With respect to the Guantanamo detainees, the government contends that, under Johnson, the touchstone of the jurisdictional inquiry is sovereignty— not mere territorial jurisdiction—and that the United States does not maintain sovereignty over the territory at issue. Jurisdiction is foreclosed, the government argues, because although the 1903 Lease agreement (and the 1934 Treaty continuing the agreement [the Lease and continuing Treaty]) which governs the terms of Guantanamo’s territorial relationship to the United States cedes to the U.S. “complete jurisdiction and control” over the Base, it recognizes the “continuance of ultimate sovereignty” in Cuba. In other words, in the government’s view, whatever the Lease and continuing Treaty say about the United States’ complete territorial jurisdiction, Guantanamo falls outside U.S. sovereign territory—a distinction it asserts is controlling under Johnson.

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Although we agree with the government that the outcome of the jurisdictional question in this case hinges on the legal status of the situs of Gherebi’s detention, we do not read Johnson as holding that the prerequisite for the exercise of jurisdiction is sovereignty rather than territorial jurisdiction. Nor do we believe that the jurisdiction the United States exercised over Landsberg Prison in Germany is in any way analogous to the jurisdiction that this nation exercises over Guantanamo. When the Johnson petitioners were detained in Landsberg, the limited and shared authority the U.S. exercised over the Prison on a temporary basis nowhere approached the United States’ potentially permanent exercise of complete jurisdiction and control over Guantanamo, including the right of eminent domain. The United States has exercised “complete jurisdiction and control” over the Base for more than one century now, “with the right to acquire . . . any land or other property therein by purchase or by exercise of eminent domain with full compensation to the owners thereof.” We have also treated Guantanamo as if it were subject to American sovereignty: we have acted as if we intend to retain the Base permanently, and have exercised the exclusive, unlimited right to use it as we wish, regardless of any restrictions contained in the Lease or continuing Treaty. . . . In short, we do not believe that Johnson may properly be read to require “sovereignty” as an essential prerequisite of habeas jurisdiction. Rather territorial jurisdiction is enough. It is evident that the United States exercises sole territorial jurisdiction over Guantanamo. “Territorial jurisdiction” exists as to “territory over which a government or a subdivision thereof, or court, has jurisdiction.” . . . The U.S. government exercises the “power to proscribe, prescribe, adjudicate, and enforce the law” in Guantanamo, . . . and further, the government’s jurisdiction is both “complete” . . . and exclusive. . . . Where a nation exercises “exclusive jurisdiction” over a territory, territorial jurisdiction lies. . . . Here, the relationship between territorial jurisdiction and the right to file habeas petitions is particularly clear. The United States exercises exclusive criminal jurisdiction over all persons, citizens and aliens alike, who commit criminal offenses at the Base, pursuant to Article IV of the Supplemental Agreement. . . . We subject persons who commit crimes at Guantanamo to trial in United States courts. Surely, such persons enjoy the right to habeas corpus in at least some respects. Under these circumstances, for purposes of our jurisdictional inquiry, it is apparent that the United States exercises exclusive territorial jurisdiction over Guantanamo and that by virtue of its exercise of such jurisdiction, habeas rights exist for persons located at the Base. . . . In sum, we conclude that by virtue of the United States’ exercise of territorial jurisdiction over Guantanamo, habeas jurisdiction lies in the present case. Although our conclusion is dispositive of the principal issue before us, we also consider an alternative ground for our holding: whether the U.S. exercises sovereignty over Guantanamo.46

In revisiting this question, the court took a fresh look at the relationship between the United States and Guantanamo Bay and judged the United

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States to have sovereignty over the territory—a dramatic conclusion with enormous geopolitical ramifications as well as the obvious legal one of causing the entire U.S. Constitution and legal system to be applicable there. The consequences of putting this ruling into practice were never felt, however—it was stayed so the U.S. Supreme Court could consider Rasul v Bush, in which similar issues arose. Nonetheless, its examination of sovereignty as a determinant of jurisdiction at Guantanamo Bay provides a striking illustration of why leased territories are so problematic in this regard: Even if we assume that Johnson requires sovereignty, our decision that habeas jurisdiction lies is the same. In this regard, we conclude that, at least for habeas purposes, Guantanamo is a part of the sovereign territory of the United States. Both the language of the Lease and continuing Treaty and the practical reality of U.S. authority and control over the Base support that answer. . . . [T]he United States exercises total dominion and control over the territory in question and possesses rights of eminent domain, powers inherent in the exercise of sovereignty, while Cuba retains simply a contingent reversionary interest that will become effective only if and when the United States decides to relinquish its exclusive jurisdiction and control, i.e. sovereign dominion, over the territory. Thus, we hold that the prerequisite to the exercise of habeas jurisdiction is met in the case of Guantanamo, whether that prerequisite be “territorial jurisdiction” or “sovereignty.” We now turn to an analysis of the term “sovereignty” and its application, for purposes of habeas, to the United States’ role at Guantanamo. The government argues that, under the plain terms of the Lease, the “continuance” of Cuba’s “ultimate” sovereignty means that Cuba retains “maximum” or “definitive” sovereignty over the Base during the indefinite period of U.S. reign, and consequently, that Guantanamo cannot be classified as U.S. sovereign territory for the purposes of our jurisdictional inquiry. The government’s assertion requires us to consider whether “ultimate” is to be construed as a “temporal” or a “qualitative” modifier. In other words, does the Lease (and the 1934 continuing Treaty) vest sovereignty in Cuba “ultimately” in the sense that Cuba’s sovereignty becomes substantively effective if and when the United States decides to abandon its physical and absolute control of the territory (or to put it differently, is Cuba’s sovereignty residual in a temporal sense); or does the lease (and the continuing Treaty) vest “basic, fundamental” or “maximum” (the alternative qualitative meaning of “ultimate” discussed infra) sovereignty in Cuba at all times, and specifically during the indefinite period in which the United States maintains complete jurisdiction and control over the Base? We conclude that, as used in the Lease, “ultimate sovereignty” can only mean temporal and not qualitative sovereignty. We also conclude that, during the unlimited and potentially permanent period of U.S. possession and control over Guantanamo, the United States possesses and exercises all of the attributes of sovereignty,47 while Cuba retains only a residual or reversionary sovereignty interest, contingent on a possible future United States’ decision to surrender its complete jurisdiction and control.

Jurisdiction at Guantanamo Bay The primary definition (including Webster’s48 first and second meanings) dictates a construction of the Lease under which sovereignty reverts to Cuba if and when the United States decides to relinquish control. Therefore, under that definition, the United States enjoys sovereignty during the period it occupies the territory. Adopting the alternative qualitative construction (Webster’s third and fourth meanings, and the government’s proffered definition) would render the word “ultimate” wholly superfluous. If the Lease vests sovereignty in Cuba during the indefinite period as to which it has ceded to the U.S. “complete jurisdiction and control,” nothing would be added to the use of the term “sovereignty” by employing a modifier describing sovereignty as “basic, fundamental” or “maximum.” If the government’s understanding of ultimate were correct, no sovereignty would vest in the United States at any time and all sovereignty would vest in Cuba at all times without the use of the word “ultimate.” In such circumstance, a simple statement that Cuba retains sovereignty would suffice. In contrast, construing “ultimate” to mean “last, final” or “arrived at as the last result,” or in practical terms a reversionary right if and when the lease is terminated by the United States, serves to define the nature of Cuban sovereignty provided for under the Lease and gives meaning and substantive effect to the term “ultimate.” Under the preferred construction of “ultimate,” the use of that term in the Lease establishes the temporal and contingent nature of Cuba’s sovereignty, specifying that it comes into being only in the event that the United States abandons Guantanamo: in such case, Guantanamo reverts to Cuba and to Cuban sovereignty rather than being subject to some other actual or attempted disposition. Most important, under the preferred temporal construction, Cuba does not retain any substantive sovereignty during the term of the U.S. occupation, with the result that, during such period, sovereignty vests in the United States. This Court’s duty to give effect, where possible, to every word of a treaty . . . should make us reluctant to deem treaty terms, or terms used in other important international agreements, as surplusage. . . . This is especially the case when a term occupies a pivotal place in a legal scheme, id., as does the word “ultimate” in Article III of the 1903 Lease. In construing the Lease and continuing Treaty, we adopt the primary, temporal definition of the term, as used in the English language—a term that gives its use as a modifier substantive meaning. That the Lease uses the word “continuance” to describe Cuba’s “ultimate sovereignty” does nothing to undercut the temporal construction of “ultimate.” As we have explained, during the period the United States exercises dominion and control, i.e. sovereignty, over Guantanamo, Cuba retains a contingent sovereign interest—a reversionary right that springs into being upon a lawful termination of the U.S. reign. It is this reversionary interest that is “continued” even as substantive (or qualitative) sovereignty is ceded to the United States. In effect, the lease functions not unlike a standard land disposition contract familiar in the area of property law, in which the partitioning of a bundle of rights into present and future interests is commonplace. Finally, the term “ultimate” sovereignty must be construed in context. It is clearly the temporal definition of “ultimate,” not its qualitative counterpart, that most naturally and accurately describes the nature of Cuban sovereignty

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The Leasing of Guantanamo Bay in Guantanamo. By the plain terms of the agreement, the U.S. acquires full dominion and control over Guantanamo, as well as the right to purchase land and the power of eminent domain. Until such time as the United States determines to surrender its rights, it exercises full and exclusive executive, legislative and judicial control over the territory, and Cuba retains no rights of any kind to do anything with respect to the Base. If “ultimate” can mean either “final” (temporal) or “basic, fundamental, and maximum” (qualitative), given that Cuba does not under the agreement retain any degree of control or jurisdiction over Guantanamo during the period of United States occupation, the use of the term “ultimate” as a modifier of “sovereignty” in that agreement can only mean “final” (temporal) and not “basic, fundamental, and maximum” (qualitative). Accordingly, we conclude that the Lease and continuing Treaty must be construed as providing that Cuba possesses no substantive sovereignty over Guantanamo during the period of the U.S. reign. All such sovereignty during that indefinite and potentially permanent period is vested in the United States.49

The Ninth Circuit Court additionally concluded that U.S. sovereignty over Guantanamo Bay was further clinched by the various activities undertaken by the United States on the territory that exceeded the limitations stipulated in the 1903 lease. “[O]ur insistence on the right to use the territory for any and all purposes we desire . . . removes any doubt that our sovereignty over Guantanamo is complete,” it reasoned, adding that the lease “transferred all of the power and authority that together constitute ‘sovereignty,’ and therefore transferred sovereignty itself.”50 It should be noted that this court also considered the Spanish text of the lease, which used the term “definitive sovereignty”51 and determined that in the context of the lease it must be read as having a temporal meaning. In its 2004 ruling in Rasul v Bush, the U.S. Supreme Court decided that civilian courts did have jurisdiction in habeas corpus cases involving detainees at Guantanamo Bay: Whatever traction the presumption against extraterritoriality might have in other contexts, it certainly has no application to the operation of the habeas statute with respect to persons detained within “the territorial jurisdiction” of the United States. . . . By the express terms of its agreements with Cuba, the United States exercises “complete jurisdiction and control” over the Guantanamo Bay Naval Base, and may continue to exercise such control permanently if it so chooses. . . . Respondents themselves concede that the habeas statute would create federal-court jurisdiction over the claims of an American citizen held at the base. . . . Considering that the statute draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee’s citizenship. Aliens held at the base, no less than American citizens, are entitled to invoke the federal courts’ authority under § 2241.

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Application of the habeas statute to persons detained at the base is consistent with the historical reach of the writ of habeas corpus. At common law, courts exercised habeas jurisdiction over the claims of aliens detained within sovereign territory of the realm, as well as the claims of persons detained in the so-called “exempt jurisdictions,” where ordinary writs did not run, and all other dominions under the sovereign’s control. As Lord Mansfield wrote in 1759, even if a territory was “no part of the realm,” there was “no doubt” as to the court’s power to issue writs of habeas corpus if the territory was “under the subjection of the Crown.” . . . Later cases confirmed that the reach of the writ depended not on formal notions of territorial sovereignty, but rather on the practical question of “the exact extent and nature of the jurisdiction or dominion exercised in fact by the Crown.”52

This jurisdiction was subsequently removed by the Military Commissions Act of 2006,53 which barred U.S. civilian courts from hearing habeas corpus cases filed by Guantanamo Bay detainees: (1) No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination. (2) Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.54

The wording of this law did not restrict its application to detainees at Guantanamo Bay, but as it applied to persons detained there it furthered the process by which individual legislative acts have constructed, together with court rulings, the framework of U.S. jurisdiction on the leased territory. Meanwhile, motions filed by the U.S. government in court cases subsequent to Rasul v Bush sought to contain the degree of jurisdiction at Guantanamo Bay that the decision in the case might be considered to sanction. “The government contended that Rasul represents nothing more than a narrow jurisdictional ruling, authorizing only the filing of petitions alleging illegal conduct. It claimed that Rasul is otherwise entirely silent on the issue of whether the detainees actually possess any substantive rights under the Constitution or treaties,” Azmy says.55

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This matter was addressed when the Supreme Court decided to rule again on the habeas corpus matter with respect to its inclusion in the Military Commissions Act of 2006.56 Its decision, in Boumediene v Bush57 in 2008, restored those rights as the court determined that the U.S. Constitution does apply at Guantanamo Bay. The majority of justices accepted that although sovereignty is a critical factor and while Cuba has it in a de jure sense, it cannot be the sole factor. Aspects such as the exclusive and indefinite exercise of U.S. rights on the territory as a result of the lease, as well as other practical considerations, must also be taken into account: Indeed, it is not altogether uncommon for a territory to be under the de jure sovereignty of one nation, while under the plenary control, or practical sovereignty, of another. This condition can occur when the territory is seized during war, as Guantanamo was during the Spanish-American War. . . . Accordingly, for purposes of our analysis, we accept the Government’s position that Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay. As we did in Rasul, however, we take notice of the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory.58 . . . [A]lthough it recognized, by entering into the 1903 Lease Agreement, that Cuba retained “ultimate sovereignty” over Guantanamo, the United States continued to maintain the same plenary control it had enjoyed since 1898. Yet the Government’s view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” . . . Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another.59

The court recognized there are “critical differences” between the situation involving Landsberg Prison in Johnson v Eisentrager that are tied to the state/territory relationship: Unlike its present control over the naval station, the United States’ control over the prison in Germany was neither absolute nor indefinite. . . . The Court’s holding in Eisentrager was thus consistent with the Insular Cases,

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where it had held there is no need to extend full constitutional protections to territories the United States did not intend to govern indefinitely. Guantanamo Bay, on the other hand, is no transient possession. In every practical sense Guantanamo is not abroad; it is within the constant jurisdiction of the United States.60

The full implications of this ruling may take years to determine, but it was instantly clear that it sharply broadened the scope of U.S. jurisdiction at Guantanamo Bay, making it, in the words of Gerald L. Neuman, “effectively U.S. territory for constitutional purposes.”61 Whether it entirely closes the jurisdictional gap is another matter, as the circumstantial factors in addition to de facto sovereignty that underlie the decision leave room for questions. For example, a stated reason for differentiating Guantanamo Bay from the extraterritorial situations where the constitution did not apply was the U.S. intent to govern Guantanamo Bay indefinitely, but this intent would change if the U.S. decides to negotiate its return to Cuba. In the meantime, however, the longer the United States exercises sovereign rights at Guantanamo Bay, the greater are the prospects for its relationship to the territory to be associated with that of sovereignty in a more comprehensive sense. A century into the lease, U.S. “complete jurisdiction and control” at Guantanamo Bay has outlasted the entire life span of a large and growing number of sovereign states.62 Simultaneously, concepts of sovereignty itself are becoming increasingly distant from the original Westphalian notion of states having absolute and invidisible authority over territory. As Kal Raustiala notes: The question of who—the United States or Cuba—has sovereignty over Guantanamo presupposes that sovereignty is indivisible and cannot be concurrently held. If it is Cuba that is sovereign, the Bush Administration asserts, then the United States ipso facto is not sovereign. Yet this is not at all clear as a conceptual matter. . . . 63 [T]here is no necessary conceptual, constitutional or practical reason to believe that whatever sovereignty Cuba enjoys in Guantanamo necessarily strips the United States of sovereignty. In other words, one need not accept the lease-based idea that Cuba retains only a reversionary sovereignty in Guantanamo to conclude that the United States is partially sovereign in Guantanamo. Both states may be sovereign concurrently, with the particular sovereignty of each dependent on the precise issue at hand.64

Questions about U.S. jurisdiction on Guantanamo Bay are closely tied in with the plenary power doctrine, under which the U.S. Congress and the executive branch of government may pursue policies regarding sovereignty and national security without judicial review. This doctrine,

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as applied, has extended to territories controlled by the United States outside its own sovereign territory, including Guantanamo Bay, and reflects an aspect of U.S. jurisdiction that has underlain the more direct legal questions that have arisen there.65 “American jurisprudence comprises both intraconstitutional law and the extraconstitutional exercise of jurisdiction under the plenary power doctrine because American law accompanies U.S. jurisdiction,” Natsu Taylor Saito notes.66 At the level of international law, the argument has been made that the principle of liability based on the exercise of effective control obliges the United States to exercise comprehensive jurisdiction at Guantanamo Bay.67 This argument, however, has not been actively pursued in the cases involving detainees that have been brought to date. Brownlie, discussing jurisdictional competence, notes that “customary law and general principles of law relating to jurisdiction are emanations of the concept of domestic jurisdiction and its concomitant, the principle of non-intervention in the internal affairs of other states.”68 He adds that “jurisdiction is not based upon a principle of exclusiveness; the same acts may be within the lawful ambit of one or more jurisdictions.”69 Guantanamo Bay presents the opposite situation: the issue has not been about which state has jurisdiction on a territory, but about the presence or absence of jurisdiction by the state that is not the sovereign but is the only state that may legally exercise it there. Occupation and Jurisdiction Since Cuba’s revolution in 1959, the Cuban government has considered the U.S. presence at Guantanamo Bay to be unlawful, while the United States has asserted that the lease is a legally valid instrument that gives it the right to remain on the territory. Although Cuba has not used legal or military means to try to recover Guantanamo Bay and exercise sovereign rights there, it has repeatedly denounced the U.S. presence on the territory. Cuba has referred to Guantanamo Bay as “territory that is occupied illegally by the United States”70 —a perception reinforced by the hostile relations between the states, which, although falling short of war, have prompted preparations for war, including the laying of mines by both the United States and Cuba on their respective sides of the boundary fence (the U.S. mines were subsequently removed in the late 1990s).71 The legal definition of occupied territory that has prevailed for the last century is contained in the 1907 convention known as the Hague Regulations: “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”72 It is clear from the convention’s wording that the hostile forces are assumed to acquire this authority by military means, although nothing in

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the convention makes this a requirement, and indeed Guantanamo Bay presents a different route for an occupation by hostile forces to occur: military forces that were not hostile at the time they assumed authority over the territory becoming hostile in situ by virtue of the relations between the United States and Cuba deteriorating from friendly to hostile after 1959. An argument might be made that Guantanamo Bay represents a type of peaceful occupation that came about through the absence of armed conflict. Leased territories are often called “occupied” in legal instruments, but this can reflect the term’s common use rather than its meaning under The Hague Regulations. As V´ali notes: There are a number of international treaties whose object is to give one State the right of administration, i.e., more or less complete exercise of jurisdiction, over a part of the territory of another State. These phenomena have borne names which differ according to their remoteness from the present time. In recent times they have been termed “occupation and administration” in the Near East,73 and “leases” in the Far East,74 and sometimes they have borne no characteristic appellation. But whatever their name, they have one common feature: the sovereignty of the territorial State is expressly preserved while the exercise of sovereign rights is handed over to another State.75

Hence the Ottoman Empire’s lease of Cyprus to Great Britain in 1878 reads in part: “In order to enable England to make necessary provision for executing her engagement, His Imperial Majesty the Sultan further consents to assign the Island of Cyprus to be occupied and administered by England.”76 In a similar vein, the Chinese lease of Port Arthur to Russia in 189877 made no use of the term “occupation,” but its lease of Wei-hai Wei to Great Britain later that year stated: “The Government of His Majesty the Emperor of China agree to lease to the Government of Her Majesty the Queen of Great Britain and Ireland, Wei-hai Wei, in the province of Shantung and the adjacent waters, for so long a period as Port Arthur shall remain in the occupation of Russia.”78 Indeed, the Guantanamo Bay lease itself uses terms like “the occupation by the United States of said areas.”79 Young writes that “it has been urged that these leases are to be properly described as under the occupation of the so-called lessee state, more or less as similar to occupied territories in Africa or as occupied territories in time of war.”80 But he rejects this analogy with respect to the Port Arthur lease (which was transferred to Japan in 1905, after the Russo-Japanese War, and was henceforth known as the Kwantung lease): The description of the Kwantung leased territory as “occupied territory” is . . . untenable. Whatever application the term might have had to

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Weihaiwai—and it is believed that the provision that Great Britain should remain in occupation of that territory for so long a period as Russia should remain in occupation of Port Arthur was but a way of describing the indefiniteness of the lease period, and not a proper use of the term “occupation” as ordinarily used in international law—it is quite evident that the term has no proper application to Kwantung. The use of the term “occupied territory” to describe the Kwantung lease is faulty, principally for two reasons: it tends to confuse the situation here under analysis with non-analogous situations; and it leads to the danger of presuming that rules of international law applicable to certain cases of occupation are likewise applicable to Kwantung. Occupation usually refers to military occupation of a territory in time of war, to temporary occupation of territory by one state to prevent external aggression or internal disturbance, and may thus relate to intervention, while it may also describe actual control of a territory, as of hitherto unsettled or so-called “uncivilized” areas without the benefit of a contractual arrangement with the state or territory thus occupied.81

Yang also argues against describing leased territories as being occupied in a legal sense, citing the contractual aspect of a lease as making it conceptually different from occupation. Writing shortly after The Hague Regulations were developed, he notes that lessor states can have broad rights on leased territory, whereas occupying states are obliged, to the extent possible, to retain the rights, laws, and administrative personnel— essentially the structure of jurisdiction—that prevailed on a territory before occupation.82 International treaties that address occupation consider it to be a temporary situation, or at least not a permanent one. As a situation that involves a transfer of authority, it inevitably raises questions of jurisdiction. The Hague Regulations require the occupying authority to “take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country,”83 while the Fourth Geneva Convention of 1949 makes it clear that an occupying power may exercise penal jurisdiction in the occupied state only as long as the period of occupation lasts.84 Tobias Thienel argues that the relevant part of The Hague Regulations does allow for limited jurisdiction by the occupying power, but only with respect to the occupier’s own forces: Article 43 of The Hague Regulations, as “the basic norm of the law of Occupation,” is based on the notion that the occupant holds authority over the area not as a new sovereign, but only as a quasi trustee of the displaced sovereign. The first aspect of the obligation to respect the local laws is therefore that the occupying power must not offend the remaining sovereign by changing the law of the land. But, as Lord Rodger had pointed out in discussing the (domestic) presumption against the extraterritorial application of statutes, there

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is no affront to another sovereign if the new law introduced regulates only the conduct of the occupying power’s own authorities. The proper analogy here is not with changes to the private or criminal law affecting individuals in the area, but with the disciplinary law of the armed forces, which necessarily and unobjectionably follows them wherever they go. . . . But the obligation to respect the local laws also entails that the Occupying power should not change the application of such law. This does not, for the most part, mean that the occupant must faithfully apply the local law itself; the local authorities must, as far as possible, remain in place, and enforcing the local laws is therefore mostly their task, not the occupant’s. But the occupying power must not interfere with the application of the law by the local authorities, unless this is “absolutely” necessary.85

To consider Guantanamo Bay as occupied territory in a legal sense would, of course, cause The Hague Regulations’ basic jurisdictional requirement to be in conflict with the lease, which designates the United States as the state that will apply its laws on the territory and prevents Cuba from applying its legal system there. This would create another unique jurisdictional circumstance for Guantanamo Bay, in which the occupier has exclusive jurisdictional rights on the territory, and the gap between U.S. jurisdiction on its own sovereign territory and its jurisdiction at Guantanamo Bay would remain as described in the section above. In addition to the temporal aspect—the Guantanamo Bay lease predated The Hague Regulations—the argument that leased territories are not occupied territories accommodates two aspects of the lease that the laws of occupation do not: U.S. jurisdiction at Guantanamo Bay, and U.S. control of the territory lasting indefinitely. At the same time, the primary characteristic of occupation—an unwanted military presence by one state on the territory of another—remains obvious and prominent and allows Cuba to keep the issue alive. The United States has rejected the concept that its presence at Guantanamo Bay constitutes occupation of the territory of a hostile state— a point made by the U.S. Supreme Court in 2006, when its ruling in Hamdan v Rumsfeld86 limited the U.S. military legal system’s jurisdiction over detainees at Guantanamo Bay by restricting its ability to convene military commissions for trying them. Ironically, the United States might have been authorized to convene the commissions if it had been recognized as having an occupier’s role. As Jill K. Lamson notes: There are three recognized types of military commissions. The first, a “martial law court,” is used to replace civilian courts when martial law is declared during times of emergency within the nation’s borders. The second, a “military government court,” is used to try civilians when U.S. military forces occupy territory outside the U.S., and the occupied nation’s courts are unable

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or refuse to function. The third type, often called a “law of war court,” is convened to try individuals accused of violating the law of war. It was during World War II and the case of Quirin,87 that the Supreme Court sanctioned President Roosevelt’s use of this last type of commission. In Hamdan, the Government repeatedly relied on Quirin to support the Commission the President had convened to try Guantanamo Bay detainees. According to the Court, this was neither surprising nor improper because Guantanamo Bay is “neither enemy-occupied territory nor is it under martial law.”88

The U.S. contention that it is not a military occupier of Guantanamo Bay in a legal sense is also reflected in wording used by Rear Admiral M. E. Murphy, who describes the U.S. presence as “our occupancy”89 in the more benign sense of a state that is simply there as a lawful tenant. International law has, on occasion, differentiated between a state’s jurisdiction on its sovereign territory and the jurisdiction that exists on territory it occupies or leases, for purposes of establishing that rights existing in the two circumstances are not the same. This issue arose with respect to the International Covenant on Civil and Political Rights,90 which was adopted in 1966 and took effect in 1976. As Michael J. Dennis notes: Article 2(1) of the ICCPR stipulates that “[e]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant without discrimination of any kind.” Hence, on the basis of the plain and ordinary meaning of the scope of application provisions . . . the ICCPR applies to individuals who are both within its territory and subject to its sovereign authority. . . . . The preparatory work of the Covenant actually establishes that the reference to “within its territory” was included in Article 2(1) in part to make clear that states were not obligated to secure the rights therein in territories under military occupation. In 1950 the draft text of Article 2 then under consideration by the Commission on Human Rights . . . would have required that each state ensure Covenant rights to everyone “within its jurisdiction.” The United States, however, proposed the addition of “within its territory.” Eleanor Roosevelt, the U.S. representative and then-chair of the Commission, emphasized that the United States was “particularly anxious” that it not assume “an obligation to ensure the rights recognized in it to the citizens of countries under United States occupation” or in what she characterized as “leased territory.” She explained: “The purpose of the proposed addition [is] to make it clear that the draft Covenant would apply only to persons within the territory and subject to the jurisdiction of the contracting states. The United States [is] afraid that without [the proposed] addition the draft Covenant might be construed as obliging the contracting State . . . to enact legislation concerning persons, who

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although outside its territory were technically within its jurisdiction for certain purposes. An illustration would be the occupied territories of Germany, Austria and Japan: persons within those countries were subject to the jurisdiction of the occupying States in certain respects, but were outside the scope of legislation of those States. Another illustration would be leased territories; some countries leased certain territories from others for limited purposes, and there might be a question of conflicting authority between the lessor nation and the lessee nation.”91

CHAPTER 6 DURATION OF THE LEASE PERPETUITY VERSUS TERMINATION Misperceptions of Perpetuity The lease of Guantanamo Bay is often referred to, erroneously, as being perpetual. The idea that it could never be ended is absent from legal and scholarly discourse about the lease during its first half century, but Cuba has fostered it since the 1959 revolution, when it was blocked by the terms of the lease from terminating it unilaterally. During the Cold War years, Cuba began using the concept of perpetuity in efforts to convince the international community that the lease was not legally valid, using terminology similar to that elaborated by Yang in his argument that a territorial lease with a perpetual duration is a cession.1 Although the terms of the Guantanamo Bay lease make no reference to perpetuity, Cuba asserted that the lease was perpetual in a de facto sense and that it was void on those grounds—an argument it pursued not through legal channels but through efforts to influence public opinion, as illustrated by an excerpt from a book about Guantanamo Bay that the Cuban Ministry of Foreign Affairs published in 1970 for distribution abroad: The contract for the lease in perpetuity of the territorial sea and land that make up the Base of Caimanera lacks legal existence and juridical validity because it is faulty in its essential elements: a) radical incapacity of the government of Cuba to cede a piece of national territory in perpetuity; b) for that same reason, the object and the reason are illegal; c) consent was wrested through irresistible and unjust moral violence.2

Although it is impossible to judge the direct influence of these efforts, the fact is that the lease began to be described by others as perpetual during these years, a practice that proliferated most notably during the period when asylum seekers were held at Guantanamo Bay in the 1990s, and again since the detention of suspected terrorists on the territory since 2002.

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Published reports in the United States sometimes referred to the lease as a perpetual agreement, and this perception entered into the discourse about Guantanamo Bay to the extent that eventually it became stated as fact in a broad range of circumstances—political rhetoric, news reports, academic papers (including law review articles), and arguments in court cases. Even the U.S. government started to refer to the lease as a perpetual arrangement, and today this description is sometimes found in reference material it produces for scholars and the general public. The United States occupies that area under a unique, perpetual lease agreement entered between the United States and Cuba in 1903, which provides that “the United States shall exercise complete jurisdiction and control over and within such areas.” —Law review article, 1994.3 Judge Kollar-Kotelly cited a 1950 case in which the Supreme Court ruled that 21 Germans held in China and charged with waging war against the United States did not have habeas corpus protections. She also ruled that the Guantanamo base, which the U.S. leases under a 1903 agreement that was renewed as a perpetual lease in 1934, was not the equivalent of a United States territory. —Article in the New York Times, 2002.4 The base was leased in 1903 for $2,000 per year on a perpetual basis. —News article produced by the U.S. Department of Defense, 2004.5 Guantanamo Bay is a 45 square mile area of Cuba occupied by the United States pursuant to a perpetual lease agreement entered into in 1903. —Law review article, 2005.6 U.S. Naval Station Guantanamo Bay is the oldest U.S. base overseas, operating since 1903 when the U.S. government obtained a perpetual lease. —U.S. Library of Congress Web site, 2008.7

The notion of the lease as perpetual has had implications for U.S. jurisprudence concerning Guantanamo Bay as it entered into legal arguments, including some that were made at the level of the U.S. Supreme Court: Finally, Guantanamo is not like China, where the petitioners in Eisentrager were tried and convicted, or Germany, where they were imprisoned. Guantanamo, “for all practical purposes, is American territory.” Although Cuba does retain “ultimate” sovereignty over Guantanamo, and therefore would ultimately regain sovereignty if the United States ever decides to terminate its perpetual lease rights there, there is no doubt that the United States exercises full current sovereignty over and within Guantanamo. —Brief for Petitioners, Al Odah v United States, U.S. Supreme Court, 2004.8 Chief Justice Rehnquist: Now it also says, it also says Cuba retains sovereignty.

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Mr. Gibbons: It does not say that. It says that if the United States decides to surrender the perpetual lease, Cuba has ultimate sovereignty, whatever that means. —Oral argument, Rasul v Bush, U.S. Supreme Court, 2004.9

The most critical use of this erroneous description in a legal forum occurred in Bird v United States, when the “perpetual” duration of the lease was a material element of the plaintiff’s argument that Guantanamo Bay should be deemed U.S. sovereign territory for purposes of allowing the claim to proceed. Here, the District Court referred to the Federal Tort Claims Act’s exclusion from being applicable on “foreign territory” and to the Supreme Court’s ruling in United States v Spelar,10 which defined “foreign territory” as “a territory subject to the sovereignty of another nation” when it barred a claim arising at an air base leased by the United States in Canada. Referring to the (successful) U.S. attempt to bar the Bird claim, the court said: Plaintiff points to the finite lease term at issue in Spelar as providing a dispositive contrast with the perpetual lease of Guantanamo Bay, terminable only by mutual agreement of the two countries, or by abandonment of Guantanamo by the United States. Based on the lease’s term, “complete jurisdiction and control,” the plaintiff reasons that the United States has de facto sovereignty over Guantanamo Bay and that the FTCA exclusion should not bar plaintiff’s claim.11

Those who consider a servitude between states to be a perpetual right would say that the Guantanamo Bay servitude is perpetual by nature. As Reid notes, a treaty creating a servitude between states “must establish a relationship far more durable than the ordinary contractual one” and cannot simply be terminated “in accordance with the ordinary rules governing treaties.”12 Likewise, Wilfried Lang writes about servitudes created by states that “they are detached from their constitutive act to become governed by the same principles as real rights” and are thus permanent.13 Interestingly, this argument has never been made with respect to the duration of the Guantanamo Bay lease. This is not surprising, however, as scholarly support for the so-called classical theory of servitudes between states, of which perpetuity is a tenet, has largely dissipated. The theory relies on the term “servitude” being used in a way that is consistent with the private-law servitudes that had permanence as an inherent characteristic, and this usage has been widely ignored in the practice of states. Leases and servitudes that exist at the state level commonly specify expiration dates or are otherwise open to termination by various means, and many have ended while the states that established them remained intact. The

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leases and servitudes that do have a perpetual duration tend to explicitly specify that. Nonetheless, Sweeney argues that the perpetuity of the Guantanamo Bay lease must be assumed on a different basis—the Vienna Convention on the Law of Treaties: Despite efforts to eliminate all treaties imposed by colonial powers prior to the UN Charter, the Vienna Convention provides that international agreements without express provisions for termination or denunciation are intended to be perpetual and must be observed. Article 56 clearly states that such treaties are “not subject to denunciation or withdrawal.” Without specific termination language or the characteristics of necessarily ephemeral alliances, there is in effect a presumption of perpetuity unless future treaty drafters intend the opposite result. Termination of the Guantanamo lease is by mutual agreement or abandonment by the United States. The presumption of perpetuity is strengthened by the Command of Article 26 (Pacta sunt servanda) and the presumption of acquiescence of Article 45 (Loss of a Right to invoke a Ground for Invalidating, Terminating, Withdrawing from or suspending the Operation of a Treaty). Analogous decisions make it plain that the passage of more than thirty years without objection results in acquiescence.14

The reality, however, is that since its inception, the lease has had clearly stated conditions by which it can be ended, making it different from a territorial lease that is concluded with the intent that it should never be terminated. Moreover, the lease was concluded in lieu of a permanent cession of territory when that option, which would have transferred title, was considered as a possibility. The lease’s drafters therefore did intend a result other than perpetuity. What was unknown in 1903 or 1934 was the certainty or timing of the facts that would bring about its termination, which caused the lease to have a term that was indefinite—but those facts would end it just as soundly as a fixed expiration date. As Miranda Bravo notes, “the term of this lease is not determined by years, but by the will of . . . the United States.”15 With the ability to bring about the lease’s end unilaterally, the United States has even raised the prospect of exercising its termination right on two occasions in the last fifty years, and as a result of the second one the prospect of ending the lease has been incorporated into current U.S. law. Why, then, are there so many references to the Guantanamo Bay lease being perpetual? The explanation appears to lie in a convergence of factors that all create an impression of permanence. First, it has no fixed expiration date and does not address the matter of renewal, which makes it different in content from most private-law leases and some territorial leases between states. Yet its indefinite term that allows an end point based on circumstances conforms with an existing

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territorial leasing model that predated the Vienna Convention. The first of the two 1903 agreements made the United States the lessee for a specified period—“the time required for the purposes of coaling and naval stations.” The 1934 treaty that reconfirmed the lease added modalities for its termination—the U.S. abandonment of Guantanamo Bay, or a mutual agreement between the United States and Cuba. Its wording acknowledged the possibility of both states abrogating the treaty in the future. In addition, the lease refers to Cuba as having “ultimate sovereignty,” a condition that has meaning only if Cuba can exercise that sovereignty, and this exercise can come about only if the leasing arrangement can be terminated. Second, the lease has no provision that allows Cuba to end it unilaterally. This creates an imbalance between the states with regard to how it can be terminated but does not encroach on the right of the United States to end it unilaterally or on the prospect of both parties acting together to terminate it. Third, the lease does give the United States the possibility to retain the territory of Guantanamo Bay in perpetuity if it so desires, and it may seem to some that this is already the case because the lease has been in force for more than a century, giving it an air of permanence. The paradox, however, is that perpetuity marches on with time, so it can never be known in advance if the U.S. presence is perpetual without that intent being stated, and the United States has not stated that intent. An amicus curiae brief filed by retired military officers in support of the petitioners in Boumediene v Bush correctly explained the situation, noting that the United States may opt for perpetuity within the context of a lease whose duration is indefinite.16 Fourth, bilateral relations between the United States and Cuba turned from friendly to antagonistic when Cuba embraced Communism and came under the Soviet Union’s sphere of influence after the 1959 Cuban Revolution. Cuba has wanted to end the Guantanamo Bay lease ever since, as it allows a hostile state to maintain a military base on its territory, but the polarized situation between the two states reinforced the military and political interests of the United States in retaining the territory. As events have played out, this situation has been a long-term phenomenon. Finally, the practice of territorial leasing itself has been sparsely studied, allowing indefinite and perpetual leases between states to be commonly viewed as much the same thing. It was not until 2006 that the structural characteristics of territorial leases between states were categorized in any detail,17 showing indefinite leases with stated conditions for termination to be distinct from other leases whose terms ranged from a fixed number of years to perpetual. Maris argues that the return of Guantanamo Bay to Cuban control was envisioned by Cuba when it sought to lease rather than sell the territory:

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“The legal term ‘lease’ was not a disguise for the actual cession of Guantanamo to the United States 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.”18 Nonetheless, it might have been seen differently by some in the United States, because Guantanamo Bay was leased just as scholars19 and some diplomats involved in negotiating such leases20 were acknowledging that the practice of territorial leasing could just as readily lead to a lessee state’s eventual assumption of title and sovereignty over the territory involved. Ironically, the only two times that the United States has considered exercising its right to unilaterally end the lease have been since relations between the two states turned hostile—once during the Missile Crisis of 1962, and again in the mid-1990s. The goal was political each time, and it was precisely the antagonistic nature of relations between the United States and Cuba (and in 1962 the Soviet Union) that gave Guantanamo Bay value as a bargaining chip—the United States could envision abandoning the territory in return for change in Cuba, something that was unnecessary during the decades when both states were on friendly terms. Proposals to Terminate the Lease, 1962 The prospect of ending the Guantanamo Bay lease in 1962 arose during the Cuban Missile Crisis in October of that year, and it developed not through legal means but through military and diplomatic ones. The United States, the Soviet Union, and Cuba all raised the idea or pressed for its acceptance at different times as the crisis disrupted the previous balance of power. With heightened Cuban distrust of U.S. intentions after the failed Bay of Pigs invasion of Cuba in the previous year, the Soviet Union had begun to secretly deploy missiles in Cuba that were capable of carrying nuclear warheads to targets in the Western Hemisphere. This transformed Cuba into a military threat to the United States for the first time, giving it more leverage than it has had before or since to press for the United States to abandon the leased territory. It was the United States that considered this option first, after discovering the Soviet missile installations. As U.S. leaders developed a strategy to neutralize the threat, the ambassador to the UN, Adlai E. Stevenson, suggested the creation of an emergency UN force to guarantee Cuba’s territorial integrity while the Soviet Union would dismantle its missile sites and withdraw its military personnel from Cuba. “Concurrently the United States will evacuate our base at Guantanamo and withdraw all forces and weapons therefrom,” he proposed on October 20.21 On the same day, the United States prepared a draft of a resolution that could be put to a vote in the UN Security Council. It sought the removal

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of both Soviet and U.S. military bases from Cuba, as elaborated in the following steps: a. Withdrawal of all foreign military personnel and weapons capable of delivering nuclear charges from Cuba, the cessation of further shipment of military supplies or personnel to Cuba, and the dismantling of foreign military bases and all missile sites in Cuba. b. Termination of all quarantines and other military restrictions directed against Cuba.22 c. The territorial integrity and political independence of Cuba to be guaranteed by the members of and by the Security Council. d. A UN military observer force to be despatched by the SYG23 to Cuba immediately in order to ensure and supervise the accomplishment of these objectives and to assure they will continue to be carried out.24

Also on that day, the U.S. Mission to the UN presented officials in Washington with two alternative plans—the demilitarization of Cuba envisioned in the draft Security Council resolution, and a UN-supervised military “standstill” on the island. It said the first alternative “has the disadvantage of pledging our withdrawal from Guantanamo, if and when Soviet military are withdrawn and Soviet missiles and aircraft dismantled or neutralized,” although the Soviet Union “would have lost an important military asset in Cuba, while we would have lost a base which is of little use to us.”25 Stevenson argued for the plan during a U.S. National Security Council meeting that also occurred on October 20, but it never went further, as President John F. Kennedy blocked it. Consequently, the draft resolution was not introduced in the Security Council. “The President sharply rejected the thought of surrendering our base at Guantanamo in the present situation. He felt that such action would convey to the world that we had been frightened into abandoning our position,” according to minutes of the meeting.26 The United States instead responded with a combination of measures that included a naval blockade of Cuba to prevent further shipments of Soviet weapons from reaching the island, an increase in the number of U.S. forces sent to Guantanamo Bay, and negotiations with the Soviet Union. The Joint Chiefs of Staff, representing the leadership of the U.S. military forces, insisted that the negotiations should exclude the topic of “Guantanamo base rights, aircraft landing rights, and water supply guarantees.”27 When the Soviet Union agreed to withdraw its missiles after accepting a U.S. pledge to not attack Cuba, the Cuban leadership saw their moment of maximum leverage over the United States slipping away. In an attempt

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to prolong Cuba’s influence, Prime Minister Fidel Castro insisted that the U.S. assurance would only be considered effective if it were accompanied by five actions: 1. Cessation of the economic blockade and of all the measures of commercial and economic pressure being carried out by the United States against our country throughout the world. 2. Cessation of all subversive activities, of the dropping and landing of weapons and explosives by air and sea, of the organization of invasions by mercenaries, and of the infiltration of spies and saboteurs—all of which activities are being carried on from the territory of the United States and certain accomplice countries. 3. Cessation of the piratical attacks being carried out from bases in the United States and Puerto Rico. 4. Cessation of all violations of our air space and territorial waters by United States aircraft and warships. 5. Withdrawal of the naval base of Guantanamo and return of the Cuban territory occupied by the United States.28

Castro told UN Secretary General U Thant that any Security Council discussion of the matter must include these five points.29 As the Soviets and the United States held talks on November 1 to formalize the agreement on the withdrawal of Soviet missiles from Cuba, the Soviet negotiator, First Deputy Prime Minister Anastas I. Mikoyan, told U.S. negotiators several times that all five of Castro’s demands must be part of the overall pact. The United States rejected any discussion of ending its presence at Guantanamo Bay, arguing that the negotiations were about U.S.-Soviet matters and that Guantanamo Bay was a U.S.-Cuban issue. Mikoyan ultimately dropped the demand about Guantanamo Bay to focus on the others.30 In justifying this to Cuban leaders on November 4, Mikoyan told them that “the Guantanamo base does not have a huge real significance insofar as the Americans can transfer their forces to Cuba without difficulties due to the geographical situation of the U.S. and Cuba”31—ironically echoing Stevenson’s earlier assessment to U.S. leaders of the base’s limited importance. Then Mikoyan made a remarkable argument in favor of the U.S. lease of Guantanamo Bay remaining in force: “If we were to raise the question of (the) Guantanamo base liquidation in exchange for withdrawal of Soviet weapons from Cuban territory in general, that would undermine Cuba’s defense capability. We can’t do that,” he said. “If the Americans had accepted such an offer, and they could do so, we would have had to leave Cuba. We could not afford it.” He then immediately moved to another subject.32

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With Cuban leaders angry at how the Soviet-U.S. negotiations were proceeding without their involvement, the Soviets acted to repair the increasingly strained relations with Cuba. On November 16 the two states made a joint proposal for a final settlement of the crisis, in which the Soviet Union would remove its missile installations and the United States would end its naval blockade, reaffirm that it would not invade Cuba, reiterate its commitment to Cuban territorial integrity, and “agree to conduct negotiations with the government of the Republic of Cuba regarding the removal of the Guantanamo naval base.”33 The Soviet Union resumed its call for the United States to abandon Guantanamo Bay as it continued negotiating with the United States, but as the talks progressed the issue became increasingly peripheral and the Soviets did not pursue it vigorously. By early December they were reiterating their support for Cuba’s demand only briefly,34 after which U.S. accounts of the Soviet-U.S. dialogue stop referring to the demand. Thus ended a brief period in which the termination of the Guantanamo Bay lease became a real possibility. The Libertad (Helms-Burton) Act, 1996 The end of the Cold War did not bring an end to the trade embargo that the United States had maintained against Cuba since 1962. The Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996,35 better known as the Helms-Burton Act,36 is most prominent for broadening the embargo to include sanctions against companies from third states that do business in Cuba, a move that raised substantial new questions of international law. This act also included a wide range of other measures to add pressure and create inducements for Cuba to begin a transition toward a democracy, and one required the U.S. government to be ready for the possible termination of the Guantanamo Bay lease. This section of the act, “Assistance to a Free and Independent Cuba,”37 mandates that U.S. policy toward Cuba incorporate sixteen elements, of which the twelfth reads: “To be prepared to enter into negotiations with a democratically elected government in Cuba either to return the United States Naval Base at Guantanamo to Cuba or to renegotiate the present agreement under mutually agreeable terms.” In January 1997 the U.S. State Department produced a report that confirmed this new element of U.S. policy was in place.38 This policy was sparsely publicized relative to the prominence of the Helms-Burton Act’s other provisions and has remained outside the spotlight, as more than a decade passed with no change in Cuba’s form of government. The Commission for Assistance to a Free Cuba, an interdepartmental U.S. government agency created in 2003, did not refer to

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the Guantanamo Bay lease or its future in either of two major reports it issued about its operations and recommendations in 2004 and 2006,39 but the policy remains in force with the rest of the Helms-Burton Act.40 It relies on the unstated premise that the political value to the United States of leasing Guantanamo Bay has become greater than the strategic value of the naval facility—i.e., its symbolic worth is great enough to allow it to be traded against a U.S. political objective.41 Yet by introducing a Cuban political action as a determinant of the lease’s duration, the HelmsBurton Act changed a fundamental element of the lease as a legal instrument: it is no longer only a lease whose term is indefinite with provisions for termination, but it is also a lease whose term (and possibly other elements) is contingent on outside events. Moreover, it muddles the link between the lease’s termination and the end of “the time required for the purposes of coaling and naval stations.”42 It does not prevent the United States from deciding the naval station at Guantanamo Bay is no longer necessary and abandoning the territory before there is any change toward a democratic government in Cuba, but conversely, a change toward a democratic government in Cuba could lead to the return of Guantanamo Bay being negotiated while it still has value as a naval station. Had this U.S. policy shift resulted from traditional means of policy formulation within the government’s executive branch, the lease’s duration would have kept its original aspect—the change would have simply influenced when the United States might act relative to the existing provisions for termination. However, the policy embodied in the Helms-Burton Act is a legal requirement imposed on the U.S. government. As such, its effect is to unilaterally alter the nature of the lease’s duration by injecting a political “triggering event” for its potential termination that did not previously exist. This is not at odds with the 1934 treaty, which makes it possible for the United States to act unilaterally with regard to determining the lease’s term, although Miranda Bravo argues that it subverts the lease by replacing the triggering circumstance contained in the lease’s own text: the end of the U.S. need for the territory as a coaling or naval station.43 The Helms-Burton Act’s requirement for the United States to “be prepared” to negotiate the end or alteration of the Guantanamo Bay lease falls short of a requirement to engage in actual talks with Cuba, but no legislation can mandate such negotiations because they can only take place if another sovereign state, Cuba, also decides to negotiate. However unlikely it is that Cuba would refuse, this is a decision that the United States can only influence politically, not control legally. Nonetheless, the intent to proceed with negotiations is clear from the reason this clause was put into the Helms-Burton Act—as an encouragement for Cuba to transform into

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a democratically governed state. A failure by the United States to participate in talks about Guantanamo Bay after such a transformation occurs would be counterproductive to the effort to improve bilateral relations that is implicit in the purpose of the act. MEANS OF ENDING THE LEASE The Option of rebus sic stantibus Although the 1934 treaty provides two clear means of ending the lease—the abandonment of Guantanamo Bay by the United States or a mutual U.S.-Cuban agreement—there has been some debate since the 1959 Cuban revolution about whether the lease can be terminated through provisions of international law that allow states to invalidate a treaty currently in force if certain circumstances exist. Because there has been no international arbitration or legal case to determine the matter, the question remains unresolved. In view of that, we will examine here whether, and how, international law may be a viable means to end the lease. By far the most frequently mentioned option in this context is the doctrine of rebus sic stantibus, under which a treaty may be declared void because of a fundamental change in circumstances. Cuba experienced a dramatic shift in its form of government, and consequently in its political alliances and relations with the United States, as the result of the 1959 revolution. These shifts have been viewed by some legal scholars as sufficient grounds for rebus sic stantibus to be used. Maris argues that “the Guantanamo lease meets the requirements for the invocation of the rule of rebus on several accounts. It has no procedure whereby one party to the treaty may seek revision if the fundamental circumstances under which the treaty was concluded have changed. It is submitted that there has been an essential change of the fundamental circumstances which, if foreseen, would obviously have been declared a permissible basis for termination in order that the intent might be secured.” He refers to the lease as an arrangement for the purposes of defense “which should be classified as a political treaty such as would a treaty of alliance.”44 Likewise, according to Alfred de Zayas, “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 as alliance treaties are deemed to terminate when a new sovereign government is fundamentally opposed to the alliance, similarly the presence of a hostile nation on the sovereign territory of Cuba is contrary to modern conceptions of sovereignty and of the sovereign equality of States. Indeed, it is an anomaly that the country that has imposed an embargo in Cuba for more than 40 years insists that it has a right to remain on its sovereign territory.”45

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Robert L. Montague III, noting that “a change of the motive which led a party to enter into a treaty, without a change in the object or purpose for which it was effected, affords no ground for application of the principle of rebus sic stantibus,” observes that “Cuba must in effect walk a rather narrowly defined judicial tight rope if the doctrine is to be regarded as of any value at all. There must be a juridical basis for its application, not merely a political one.” He notes that the only facts that can be said to have changed for purposes of the treaty are “the character of the Cuban government and its ideology and the nature of the diplomatic relationship between that government and the United States.” Yet he concludes that “in spite of the stability of American policy as to Guantanamo and the continuing underlying need for reform in Cuba, a change to a fundamentally contrary Communist system, when considered in connection with the prevailing American attitude toward such a form of government, could be regarded as considerably more than a simple political change and could, in the opinion of this writer, be a ground for invocation of the doctrine of rebus sic stantibus.”46 Miranda Bravo also argues that the magnitude of the shift, not just the fact that it occurred, is sufficient from a legal standpoint, writing that “it is obvious that there is a change in circumstances” that meets the rebus sic stantibus standard insofar as U.S.-Cuban ties could not possibly contrast more sharply with the friendly relations that were foreseen in the 1903 and 1934 agreements.47 John Woodliffe filters his assessment through the Vienna Convention on the Law of Treaties of 1969, notably Article 42.2, which reads in part: The termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention.48

He also cites Article 62, which reads in part: 1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless: (a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty.49

He, too, concludes that with regard to Guantanamo Bay, “a respectable case could be mounted for the termination of the agreement on the basis of the rebus sic stantibus doctrine.”50 The Vienna Convention’s limits on the use of rebus sic stantibus echo a widespread and long-prevailing view among international jurists that the

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doctrine should be employed “only in very exceptional circumstances, not merely when there has been a natural and normal change of conditions in the life of the state,” and that “the change must be such as to make the continued performance of the obligations flagrantly inequitable, unjust, oppressive, difficult of performance, or derogatory to the dignity or sovereignty of one of the parties.”51 Lassa Oppenheim writes that when the exercise of a servitude becomes unbearable for a state, and when that state is unable to reach an agreement with the other state involved to alleviate the situation “on account of the unreasonableness of the other party,” rebus sic stantibus is an available option,52 but he agrees that only exceptional circumstances would justify its use: Certainly not every change in circumstances justifies a State in making use of it. All agree that, although treaty obligations may, through a change of circumstances, become disagreeable, burdensome, and onerous, they must nevertheless be discharged. All agree, further, that a change of government, and even a change in the form of a State, such as the turning of a monarchy into a republic and vice versa, does not alone, and in itself, justify a state in resorting to the clause. On the other hand, all agree in regard to many cases in which it could justly be made use of. Thus, for example, if a State enters into a treaty of alliance for a certain period of time, and if, before the expiration of the alliance, a change of circumstances occurs, so that now the alliance endangers the very existence of one of the contracting parties, all will agree that the clause, rebus sic stantibus, would justify that party in demanding to be released from the treaty of alliance.53

Similarly, Yang writes that a state’s entry into a treaty necessarily supposes its belief that the treaty will not endanger its existence, but that if changes in circumstances occur that result in the treaty’s obligations putting the state’s existence in peril, the treaty may be renounced on the basis of rebus sic stantibus.54 This, of course, shifts the argument toward defining what constitutes U.S. behavior that could threaten Cuba as a state and whether its use of Guantanamo Bay in efforts to alter the system of government in Cuba is tantamount to seeking a change that threatens Cuba’s statehood. The general reticence to accept arguments based on rebus sic stantibus, lest it become overused, has led others to argue that the Guantanamo Bay lease is subject to pacta sunt servanda, the doctrine that embodies the obligation of states to comply with treaties into which they have entered. Pacta sunt servanda is widely considered a more fundamental element of international law than rebus sic stantibus.55 The United States adhered to this doctrine in a February 1962 assessment that said the lease must continue according to its terms and that “an allegation of rebus sic stantibus (changed circumstances) as a ground for unilateral termination would not be well

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founded. Application of the doctrine has never been upheld by an international judicial tribunal. The leading writers on international law state that the doctrine may be applied only by agreement of the parties or through the decision of a tribunal.”56 In a note to UN Secretary General U Thant in November of that year, the UN’s chief legal counsel, Constantin A. Stavropoulos, also anticipated a scenario in which Cuba might seek to end the Guantanamo Bay lease through a rebus sic stantibus argument, while the United States might counter it with one based on pacta sunt servanda: The possible United States position would appear to rest upon one of the fundamental concepts of traditional international law, but it does not perhaps give full weight to the history of the question and the changes which have taken place both in international law and in relations between the United States and Cuba since 1903. The possible Cuban position, on the other hand, might be considered to stress the history of the question and changed conditions at the expense of legal considerations. The doctrine of rebus sic stantibus, because it is so easily open to abuse as a means of not fulfilling unwelcome treaty obligations, is confined by most authorities to the narrowest bounds, such as impossibility of performance or the fact that the treaty concerned imperils the existence or vital development of one of the parties.

Stavropoulos refrained from evaluating the merits of either position beyond these observations.57 As rebus sic stantibus has been channeled into extremely restrictive applications that have not been well defined in practice, Laurence R. Helfer notes that the doctrine has fallen into disuse amid an absence of cases in which it has been employed successfully either in legal or diplomatic circumstances: Commentators have largely ignored the doctrine’s decline or have attributed it to a renewed faith in the competing legal norm that treaty commitments must be obeyed. However, the option to exit from a treaty provides a more plausible explanation for why the rebus sic stantibus doctrine has all but evaporated from the discourse of compliance with international commitments. Because states may unilaterally denounce or withdraw from most treaties without justifying their conduct to other treaty parties, they need not rely on the narrower and more controversial doctrine. Exit provides a far simpler— and legally incontestable—alternative to states seeking to remove themselves from treaties whose circumstances have altered. The fact that exit, although infrequent, nevertheless occurs far more often than successful invocations of rebus sic stantibus supports this conclusion. . . .58

Yet the Guantanamo Bay lease is a rare exception, as the 1934 treaty does not give Cuba this alternative, leaving rebus sic stantibus as the relevant option.

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Another factor that must be considered in the case of Guantanamo Bay is the time element. A half century has now passed since the occurrence of the “fundamental change of circumstances” that Cuba would presumably cite if it were to invoke rebus sic stantibus, creating room for this argument to be countered on the grounds that the “change” is not so much a recent development that might justify ending the lease as it is an historical fact to which both the United States and Cuba have adapted with the lease remaining intact. With respect to whether the rebus sic stantibus argument or pacta sunt servanda has more legal weight, Lazar asserts that neither is relevant to Guantanamo Bay because the U.S. right to occupy the territory was not founded on agreements or treaties between the United States and Cuba but rather on the Treaty of Paris that ended the Spanish-American War.59 His view has gained few adherents, most likely because the United States has behaved in a way consistent with having obtained its rights at Guantanamo Bay from Cuba, but it is noted here for the record as it is occasionally included in legal discussions of the Guantanamo Bay lease. The argument derives its support from the fact that the United States militarily occupied Guantanamo Bay during the Spanish-American War and never left. Robert D. Powers notes that after using the territory to help capture the city of Santiago from Spain, the United States then used it to liberate Cuba from Spanish rule and then to guarantee its independence, with its right to use the territory finally formalized in 1903.60 Reverting to the theoretical level, Pitman B. Potter notes that considering international servitudes to be permanent rights precludes the use of rebus sic stantibus from the start by exempting them from the scope of treaty law once they are created, even if it is by treaty that their creation occurs: If servitudes are to be assimilated to treaties, one rule would quite evidently appear to hold, namely, that servitudes being in rem are not extinguished by war, but that they run with the land and are merely suspended by war. Similarly a previous servitude would hold over a later one, although the reluctance of states to bind themselves would prevent the multiplicity of such relations, which would make such a rule significant. Again, diminution and impairment would be held rigidly illegal and the case of a regulatory tax levied on the exercise of a servitude would be subject to the old test of reasonable regulation and intent. Minor variations may be neglected, for they will usually be regulated by treaties. Finally, the grant of a servitude would imply the grant of auxiliary rights necessary to enjoyment thereof. The principle that servitudes run with the land has not been exhausted. If such is the case, then a transfer of land would entail a transfer of the servitude for servient and dominant alike. If it does not hold and servitudes

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depend from the moral sovereignty of the servient, it must be shown that constitutional and revolutionary changes do not void the servitudes. Lastly, the defenders of the real basis of servitudes are driven to the old retreat of saying that servitudes are not even suspended by war, but that it is merely the exercise of them that is suspended if conditions warrant it. At all events, servitudes do persist through war, but are usually not actively enjoyed; and constitutional changes do not affect them. There is a lurking suspicion here that the rule of rebus sic stantibus is implied in all servitudes. Such a view has been explicitly maintained. That involves an assimilation of servitudes to treaty procedure, for the rule of rebus sic stantibus is still peculiarly an incident of treaty procedure. On the other hand, if they constitute a self-sufficing branch of the fundamental law, they are subject to no such restriction, but must carry their own limitations. Further, if servitudes are a portion of the fundamental law and not voluntary agreement, Bluntschli’s theory that a servitude may be denounced when it is pernicious to the well-being of the servient state must be ruled out. The whole question of denunciation is delicate and complex. . . .61

The practice of states has shown, of course, that servitudes created in the context of territorial leasing can, and do, end definitively, whether by reversion of the leased territory to the lessor state or by the assumption of title by the lessee. Regardless of how leases end—through expirations or triggered terminations contained in the lease’s terms or through the evolution of bilateral relations—the underlying issue of whether the servitudes they create can be ended at all tends to be ignored. The accumulation of terminated leases over time arguably has made termination acceptable under customary international law, but the issue has not been raised or resolved in any formal way. Thus it would appear that a Cuban argument for using rebus sic stantibus as grounds to terminate the Guantanamo Bay lease has found a degree of support from international jurists, even if it cannot be said to be universal. But it could also face challenges beyond that of portraying the change in circumstances as sufficient to meet the extremely high threshold that gives it legal validity. Other Options in International Law Three other options in international law for the potential termination of the Guantanamo Bay lease are cited on occasion: the doctrine of unequal treaties, a material breach of treaty provisions, and the right of denunciation. The doctrine of unequal treaties, which holds a treaty to be void if it is the result of coercion by the stronger state against the weaker one, is not universally accepted. Growing out of the Soviet Union and then

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embraced by China and a number of developing countries, it is disdained by a majority of Western jurists, who consider it more of a political than a juridical doctrine.62 Nonetheless, Article 52 of the Vienna Convention on the Law of Treaties has left an opening for states to argue this on the basis of what constitutes “force”: A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.63

Malanczuk writes that proponents of the doctrine consider political and economic pressure to constitute force, although he notes that the UN Charter’s preamble equates force with armed force and that drafters of the charter in 1945 rejected a Brazilian proposal to define “force” as including coercion.64 In his 1962 assessment, Stavropoulos considered it possible that Cuba “would seek to argue that the Agreements of 1903 belong to a category of ‘unequal treaties’ as they were in fact imposed upon Cuba as one of the conditions for its independence,” and that Cuba would submit that this alone would be sufficient to void the Guantanamo Bay lease regardless of the rebus sic stantibus argument.65 Several years later, the Soviet Union specifically cited the Guantanamo Bay lease as an example of an unequal treaty when the International Law Commission was developing what would become the Vienna Convention.66 More recently, in 2003, Zayas, citing Soviet-era legal scholars, agreed that “in applying this principle to Guantanamo Bay, an objective observer will consider that Cuba was anything but a sovereign State in 1902 when it emerged from four years of United States military occupation. It was handicapped by the imposition of the Platt Amendment, which granted to the United States the right to interfere in its internal affairs. As a consequence, the unequal treaty is voidable in terms of modern international law.” But he acknowledges that this argument meets resistance from Article 4 of the Vienna Convention, which prohibits the Convention from being applied retroactively: Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention, the Convention applies only to treaties which are concluded by States after the entry into force of the present Convention with regard to such States.67

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In this regard, Zayas admits that “the evidence from State practice shows that the international law prohibition on the use of force and the prohibition of coercion had not yet emerged in 1903.”68 Malanczuk states that “if a treaty was procured by force at a time when force was not illegal, the validity of the treaty is not affected by subsequent changes in the law which declare that force is illegal and that treaties procured by force are void.”69 This raises the issue of whether the lease can be invalidated by new peremptory norms of international law, as the Vienna Convention allows in Article 64: If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.70

Zayas asserts that both the prohibition of the use of force and the principle of self-determination have developed into elements of jus cogens since 1945, and that the Guantanamo Bay lease might be voided on the basis of one or the other as peremptory norms.71 Broad support for this view has not emerged, however. Invalidating the lease because of a material breach of provisions is another possibility that some jurists believe might be viable under international law. Article 60 of the Vienna Convention, which sanctions the termination of treaties on such grounds, reads in part: 1. 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 or suspending its operation in whole or in part. [...] 3. A material breach of a treaty, for the purposes of this article, consists in: (a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty. 4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach.72

This argument depends in part on how narrowly or expansively the language in the Guantanamo Bay lease is interpreted—e.g., whether a coaling station is deemed to be limited to handling coal or whether it can be a fueling station in a broader sense; whether a naval station is deemed to be a facility limited to the U.S. Navy’s classification or whether it can be any naval (or primarily naval) installation73 ; whether the prohibition on

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private-sector enterprises operating on the leased territory extends to U.S. military contractors; and whether activities carried out on the territory are consistent with those that would reasonably occur at a coaling or naval station, relative to the interpretation of such facilities. The United States has opted for broad interpretations of the lease in questions such as these and Cuba has acquiesced, both initially and over lengthy periods of time, without launching legal challenges and with only occasional instances of diplomatic attention. The general consistency of Cuba’s behavior over the course of a century, regardless of the issue at hand and regardless of the nature of Cuba’s government, reflects a certain pragmatism by Cuba, given the relative political and military strengths of both states. But this is the record that inevitably must be considered in any legal evaluation of whether the United States has materially breached the Guantanamo Bay lease arrangement as established in 1903 and reconfirmed in 1934. Even if the terms of the lease were to be interpreted narrowly, many of what might be considered breaches by the United States, particularly in the early part of the lease’s existence, were incremental in nature—they stretched limits rather than overtly ignored them. As the Vienna Convention stipulates, the magnitude of a breach is important in determining whether it is a material violation that can invalidate a treaty. Indeed, whether a “creeping breach” is a violation at all is open to question. “One does not find in general international law any precise definition of the violation of a treaty,” writes Caroline Laly-Chevalier,74 adding that a true violation is serious enough to affect the very substance of the treaty and that minor forms of noncompliance “do not generally qualify as violations.”75 In the case of Guantanamo Bay, Montague views the threshold for a material breach as actions such as “non-payment of rent, disclaimer of the ultimate sovereign’s title, abandonment of the premises, violation of restrictions on use, or illegal use”76 —although abandonment of the premises would result in the lease’s termination under its own terms in any case. “Illegal use in a broad sense would probably be the ground for suspension which Dr. Castro and his government would have the greatest possibility of developing,” Montague wrote in 1962. “But unless the United States were to use the base in open support of forces hostile to the Castro regime, as for example, to harbor fugitives from Cuban justice, the argument, hedged about as it is by the doctrine of pacta sunt servanda, would be difficult to apply.”77 In the event, Cuba did not pursue this argument through legal channels after the Missile Crisis or at any other time. Zayas argues that the repeated use of Guantanamo Bay as an internment camp for Haitian and Cuban refugees in the 1990s and as a detention and interrogation center for alleged terrorists “is wholly incompatible with the object and purpose of the treaty” and “arguably entails a

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material breach of the agreement justifying unilateral termination by Cuba in accordance with Article 60 of the Vienna Convention on the Law of Treaties.” Any human rights violations at Guantanamo Bay would entail “an even graver breach of the lease agreement, justifying its immediate termination.”78 But Zayas also focuses on magnitude in weighing whether a violation is material. “As to the presence of a number of concessions and commercial enterprises in Guantanamo, including a McDonald’s and a ten-pin bowling alley, it is certain that this constitutes a breach of the terms of Article III of the supplemental agreement of 2 July 1903. However, since such a breach does not affect the object and purpose of the lease agreement and can be easily corrected by bilateral negotiation, it does not entail a material breach justifying termination of the lease,” he concludes.79 The right of a state to denounce a treaty that contains no provision for withdrawal is occasionally raised in connection with the Guantanamo Bay lease in view of the 1934 treaty that permits the United States, but not Cuba, to terminate the lease unilaterally. Helfer suggests that allowing only one of the states to end the arrangement unilaterally expressly precludes the other state from doing so.80 The Vienna Convention addresses the matter of treaty denunciations in Article 56: 1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty.81

The argument raised here is that since the 1934 treaty admits the possibility of denunciation by both states together or by the United States alone, Article 56.1 gives Cuba the right to also denounce it alone. Woodliffe notes that treaties frequently do not contain provisions for denunciation or withdrawal but that when such provisions are found in military base agreements, normally the aim is to make termination possible only by mutual consent, thereby denying any right of unilateral denunciation.82 A further way in which the Guantanamo Bay lease could end through channels afforded by international law is with a transfer of territorial title to the United States by prescription. The United States has shown no sign of desiring such an outcome, but various factors could lend weight to a potential future U.S. argument that it has full sovereignty over the territory—most notably the sovereign-like behavior at Guantanamo Bay

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that the United States has displayed through long-term control and jurisdiction. Such factors would have to be weighed against the validity of the protests that Cuba has been making against the U.S. presence on the territory, as these, too, have legal value. This option will be explored at greater length in Chapter 10, which discusses scenarios for the future of the Guantanamo Bay lease. Operating Costs as a Duration Factor The financial cost of maintaining U.S. activities at Guantanamo Bay cannot be overlooked as a potential reason for terminating the lease through a U.S. abandonment in accordance with the 1934 treaty. Evolving defense priorities and growing financial pressures prompted the Senate Committee on Foreign Relations (in 1971) and the chairman of the Joint Chiefs of Staff (in 1983) to suggest that the United States could not continue to sustain its existing military presence abroad on financial grounds,83 and since then a number of U.S. military installations located on the territory of other states have been closed.84 Throughout recent decades, as overall military costs have continued to rise, assessments that Guantanamo Bay is expendable from a strictly military standpoint have recurred periodically since Stevenson first made the argument in 1962.85 These assessments must now be seen in the light of the naval station’s latest primary use, as a detention center for suspected terrorists, which showed a readiness by the United States to employ the territory for other purposes for which it is deemed well-suited. Nonetheless, the closure of the detention center that President Barack Obama ordered in 200986 will cause Guantanamo Bay to revert to its previous situation as a largely idle naval station with diminished strategic importance unless another use is found for it, and as of this writing none has been put forward. This leaves Guantanamo Bay vulnerable, as U.S. politicians have fewer incentives to support military installations located abroad compared with bases on U.S. sovereign territory, given that no local economic or other benefits are lost in the United States when a base outside U.S. territory is closed.87 The U.S. government has a formal process called Base Realignment and Closure (BRAC), in which the Department of Defense periodically assesses existing military facilities for their usefulness vis-`a-vis current and future challenges and makes recommendations to an independent BRAC Commission that will make decisions to update or close facilities as deemed warranted, primarily on military grounds but also taking into account economic, environmental, and other factors.88 It is currently unclear how the BRAC process would be reconciled with the requirements of the Helms-Burton Act with regard to Guantanamo Bay—that is, whether the lease would take precedence and allow the

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United States to abandon the facility if it is deemed no longer necessary or whether the Helms-Burton Act, by requiring the United States to be prepared to negotiate revising the arrangement or returning the territory to Cuba upon Cuba’s transition to a democratic form of government, effectively obliges the United States to keep Guantanamo Bay for that contingency.

CHAPTER 7 THE ANNUAL RENT PAYMENTS COMPENSATION ISSUES Compensation as a Material Element The 1903 lease of Guantanamo Bay and Bah´ıa Honda stipulated that the United States would pay to Cuba an annual rent of $2,000 in the form of gold coin.1 The rent for each territory as a separate entity was not specified, and the lack of records that might explain how the rental amount was determined makes it impossible to know how much Guantanamo Bay alone was “worth” at the time—whether it might have been valued equally or differently from Bah´ıa Honda when their sizes, locations, and characteristics as mixed areas of land and water were taken into account, or whether separate valuations of the two territories even existed. What can be deduced is that the amount of the rent paid by the United States for its rights on Guantanamo Bay was considerably higher than what any other party would have paid in 1903 for renting the same territory. Its presumed market value would have reflected its situation in a thinly inhabited area of Cuba with little infrastructure, inadequate freshwater resources, and poor land qualities for agriculture. It was also some distance from urban centers and on the wrong side of the country to be developed into a substantial port (Cuba’s main trade was with the United States, to the north), so it would have been among the lowest-priced areas on the island during a period when the cost of land was as little as 10 U.S. cents per hectare.2 Because Guantanamo Bay was a far larger territory than Bah´ıa Honda, comprising 94.5% of the total area leased, an assumption that 94.5% of the rent ($1,890 per year) represented Guantanamo Bay results in an annual rent of 16.20 cents per hectare for a territory that was arguably worth less than that in a purchase at market value.3 An actual rental amount for Guantanamo Bay alone could only be determined after the United States abandoned Bah´ıa Honda, which presumably had occurred by 1916, when the United States no longer listed Bah´ıa Honda in its inventory of naval facilities.4 At that time, the rent was still

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$2,000 per year—but now it was only for Guantanamo Bay. Regardless of how the two territories were valued before, this represented a rise in the rent for Guantanamo Bay to 16.66 cents per hectare.5 The importance of this mathematical exercise from a legal standpoint is that the rental amount early in the lease is shown to be high relative to the value of other Cuban land with Guantanamo Bay’s characteristics. Thus it can be reasonably inferred that the rent was intended as a material element of the lease rather than as a token payment. This had implications insofar as a U.S. failure to pay the rent would be a material breach of the July 2, 1903, treaty that completed that year’s creation of the lease. Although the rental amount was high relative to the land’s actual value, the cost to Cuba of buying the few areas of private land within the leased area at Guantanamo Bay, for which it used funds advanced by the United States, also appeared exaggerated, totalling $136,000.6 Miranda Bravo attributes the inflated prices to the corruption of government officials,7 although it is also probable that expectations of Cuba’s obligation to buy the land for the United States drove its value up. The ranchers who owned it, in contrast with the general Cuban sentiment against the lease, were described by the New York Times as “enthusiastic” about seeing the Guantanamo Bay naval station established.8 At such prices, it is not surprising that a nearby landholder offered to sell 40,000 acres—an area greater than the leased territory itself—to the Department of the Navy in 1909,9 although nothing came of the attempt. Although the funds the United States provided for the land purchases were supposed to be considered as advance rent payments and covered decades of annual rent, it appears that the United States began making rent payments well before the period covered by these funds ended. The reasons for this are unclear today. The End of Payments in Gold Coin The extent to which the United States and Cuba took actions that matched the objectives of the unratified treaty of 1912 was partial and selective. It seems clear that the United States relinquished its rights at Bah´ıa Honda and apparent that it increased the size of Guantanamo Bay, although details of any expansion beyond the 3% increase reported by the U.S. Navy in 1916 are unknown. What is known is that during and after this period, the U.S. rent remained at the level set in 1903—it never rose to the $5,000 per year that was agreed on in the 1912 treaty, and there is no evidence that Cuba sought to collect the higher amount. The first change in the rent occurred in 1934, the year after the United States abandoned the gold standard,10 stopped minting gold coins, forbade banks from paying out gold, and imposed extensive restrictions on exports of gold, all in the severe economic context of the Great

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Depression.11 A devaluation of the dollar resulted in the value of old U.S. gold dollars being fixed at $1.693125 in legal U.S. currency. The annual rent of $2,000 in gold for Guantanamo Bay, when converted at this rate, became $3,386.25. This was the amount the United States began paying annually to Cuba, by U.S. government check, starting in 1934.12 The new policy toward gold, embodied in a Joint Resolution of Congress that was approved by President Franklin D. Roosevelt on June 5, 1933, abolished the “gold clause” in contracts. “Every provision contained in or made with respect to any obligation which purports to give the obligee a right to require payment in gold or a particular kind of coin or currency, or in an amount of money of the United States measured thereby, is declared to be against public policy,” the resolution said. It added that obligations payable in U.S. money “shall be discharged upon payment, dollar for dollar, in any coin or currency which at the time of payment is legal tender for public and private debts.”13 According to Arthur K. Kuhn, “the legislation is by its terms applicable to any of the public debt which contains provision for payment in gold or gold coin, as well as to obligations of similar import of a private character. Many obligations of both categories are held abroad by citizens of foreign countries, or by institutions constituting the fiscus of a foreign government, such as its treasury or its national bank.”14 A number of questions about the measure’s constitutionality were raised,15 but these were not resolved by the time the United States had to make the 1934 rental payment for Guantanamo Bay, which proceeded in the new dollar amount and form. The legal status of the gold clause in contracts also was not entirely settled at the international level, either, although it was progressing. The relevant U.S. court decision until that point, in Bronson v Rodes (1868), held that a gold bond had to be paid in gold coin: A contract to pay a certain number of dollars in gold or silver coins is, therefore, in legal import, nothing else than an agreement to deliver a certain weight of standard gold, to be ascertained by a count of coins, each of which is certified to contain a definite proportion of that weight. It is not distinguishable, as we think, in principle, from a contract to deliver an equal weight of bullion of equal fineness. It is distinguishable, in circumstance, only by the fact that the sufficiency of the amount to be tendered in payment must be ascertained, in the case of bullion, by assay and the scales, while in the case of coin it may be ascertained by count.16

In 1929 the Permanent Court of International Justice ruled in two separate but similar cases, one involving Serbia and the other involving Brazil, that gold bonds were payable by means other than gold—that the reference to gold was meant to designate the quantity of the debt and not necessarily the means of discharging it. As Arthur Nussbaum notes,

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the Permanent Court did not construe the expression “franc-or” as a gold coin clause, but exclusively as a gold value clause. It held the Serbian and Brazilian governments liable to pay the bondholders, in the local currency of the contractual place of payment chosen by the bondholder, a sum equivalent to the value of the gold coins corresponding to the amount of “francs-or” mentioned in the bonds. Here is no longer the question of the “manner of payment,” but clearly of the “substance of the debt,” as the amount of the debt is, of course, an essential element of the debt.17

Nussbaum argues that governmental obligations created by acts of sovereignty, such as a territorial lease, rest “exclusively on international law” and not U.S. law, and therefore the Joint Resolution cannot apply— but then notes that the Permanent Court’s arguments in the Serbian and Brazilian cases “may justify a contrary decision.”18 A fundamentally identical ruling to that in the Serbian and Brazilian cases, based on the same reasoning, was handed down in Great Britain just as the validity of the U.S. Congressional resolution was being questioned; on December 15, 1933, the House of Lords ruled in Feist v Soci´et´e Intercommunale Belge d’Electricit´e that an investor who had a £100 gold bond issued by the Belgian company could not oblige it to render payment in actual gold.19 The judgment rendered by Lord Russell of Killowen reads in part: I therefore ask myself this question. If the words of the gold clause cannot have been used by the parties in the sense which they literally bear, ought I to ignore them altogether and attribute no meaning to them, or ought I, if I can discover it from the document, to attribute some other meaning to them? Clearly the latter course should be adopted if possible, for the parties must have inserted these special words for some special purpose, and if that purpose can be discerned by legitimate means, effect should be given to it. In my opinion the purpose can be discerned from Clause 4, in which the reference to gold coin of the United Kingdom is clearly not a reference to the mode of payment but to the measure of the company’s obligation. So too, Condition 6, which again is a clause not directed to mode of payment, but to describing and measuring liability, shows that the words are used as such a measure. In just the same way I think that in Clauses 1 and 2 of the bond the parties are referring to gold coin of the United Kingdom of a specific standard of weight and fineness not as being the mode in which the company’s indebtedness is to be discharged, but as being the means by which the amount of that indebtedness is to be measured and ascertained. I would construe Clause 1 not as meaning that £100 is to be paid a certain way, but as meaning that the obligation is to pay a sum which would represent the equivalent of £100 if paid in a particular way; in other words, I would construe the clause as though it ran thus (omitting immaterial words): “pay . . . in sterling a sum equal to the value of £100 if paid in gold coin of the United Kingdom or equal to the standard of weight and fineness existing on the 1st day of September, 1928. I would similarly construe Clause 2.20

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As the change in the dollar amount of the Guantanamo Bay rent and the corresponding change to paying by check ultimately were never blocked by legal cases regarding the gold clause, they set the pattern for the years that followed. The United States made its payment by July 2 each year, the anniversary of the treaty that completed the territorial lease. Although the payment changes were actions taken unilaterally by the United States, there is no evidence that Cuba seriously challenged them. It is true that Cuba’s acceptance occurred during a period of heightened goodwill between the states that was reflected in the rapid conclusion of the 1934 Treaty of Relations. Nonetheless, the period leading up to that accord was no time for Cuba to initiate an argument with the United States that would risk complicating or delaying the replacement of the Platt Amendment (to which the Guantanamo Bay lease was linked) with the new treaty. Cuba probably would have run such a risk in a disagreement over payment—a fact that is seen by the dispute the United States had with Panama at the same time about the rent for the Canal Zone lease. Although the two leased territories had largely parallel fates until that point and were seen as substantially identical from the perspective of U.S. municipal law,21 the United States assumed a different policy toward payment of the Canal Zone rent to Panama for reasons that are not entirely clear.22 Rather than paying Panama in U.S. currency at the rate of $1.693125 per gold dollar, as it did with Cuba, the United States ignored the dollar’s devaluation and sought to continue paying rent to Panama at parity—$1.00 per gold dollar—causing an effective decrease in the rent Panama received.23 The ensuing dispute lasted more than two years and required a new treaty to settle.24 Just as the 1934 U.S.-Cuban Treaty of Relations failed to acknowledge the obsolescence of a coaling station as an objective of the Guantanamo Bay lease, it failed to address the fact that the specified monetary instrument for rental payments, U.S. gold coin, also had become obsolete. Whether this issue was avoided or simply neglected, the fact that it was not incorporated into the new treaty paved the way for the United States to adjust its rental payment as it considered appropriate, and also to adjust the method of payment. By revising the amount of dollars paid to Cuba to reflect their new value vis-`a-vis gold, the United States set the precedent for later revisions to occur when the relationship between the dollar and gold changed again. That next took place on May 8, 1972, with the value of the old U.S. gold dollar being adjusted to $1.83825. The check for the 1973 rent increased accordingly, to $3,676.50.25 A further revision on October 18, 1973, brought the value of the old gold dollar to $2.04250. Beginning in 1974, the amount on the U.S. checks was

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raised to $4,085.00 to reflect this change,26 and it has remained at that level since then. It should be noted that although changes in the value of the dollar visa` -vis gold have been considerable since the 1970s, the fixed level of the U.S. rental payments to Cuba since 1974 reflects the absence of further official devaluations or revaluations of the dollar.27 With the adoption of a floating exchange rate regime for the dollar (as with other major world currencies), changes in the relative values of the dollar and gold now are shaped by a variety of market forces that can affect one or the other, or both at once in similar or different ways. From Material Payments to Token Payments While the amount of dollars the United States pays to Cuba for rent was adjusted several times to accommodate the formal changes in the dollar’s value relative to gold, no adjustment has been made for changes in the value of the physical territory that comprises Guantanamo Bay since the United States abandoned Bah´ıa Honda and the payment came to represent the rent for Guantanamo Bay alone. In effect, the territory’s value was frozen at that point by the 1903 lease, which contained no provision for altering the rental amount in line with evolving economic or other circumstances. The negotiation of the 1934 treaty that reaffirmed the lease and all of its provisions offered an opportunity to change this aspect, but no change occurred. Over a period of years, the neglect of this element of the lease had the effect, apparently unintended, of gradually transforming the rental amount into a token one. From a legal standpoint, this also transformed the impact of the rental payments on the overall performance of the lease: the compensation clause lost its status as a material element in financial terms. While it continued to have value as an acknowledgment by the United States of Cuba’s sovereignty over Guantanamo Bay, the absence of known efforts by either state to preserve the rent’s overall importance as a factor in the lease exposed it to being considered a minor element. Thus, a failure by the United States to pay rent to Cuba might no longer be considered a material breach as readily as when the lease was new. Through this process, Cuba’s potential legal options for ending the Guantanamo Bay lease became narrower. The United States was already starting to recognize this shift as early as 1912, when it was negotiating for the expansion of the area of Guantanamo Bay at a higher rent. A memorandum from the U.S. Department of State’s Office of the Solicitor summarized the lease at that point by saying that Cuba was providing the territory and granting the United States rights on it “without any compensation other than the payment of this nominal rent.”28

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The legal fact of its current token nature is obliquely acknowledged by Cuba itself. In an article published on August 14, 2007, President Fidel Castro referred to the U.S. remittances of rent as “a symbolic annual payment.”29 It is possible that the shift in the rental amount from a material to a token payment also had another impact—a political one of arguable significance for international events. Land prices had been rising in that part of Cuba since the early days of the Guantanamo Bay lease, spurred in part by owners of railroads and sugar cane plantations who were expanding their holdings by acquiring land in the area, and by the prospect of increased economic activity as railroad lines were installed.30 By the 1950s, a half century after the lease took effect, the rental amount would already have been considered trivial relative to the value of land in the region. This may have contributed to the anti-U.S. sentiments that emerged among the Cuban nationalists who, led by Castro, took power in the 1959 revolution. It is not rare for territorial leases that states conclude for lengthy fixed periods, or for indefinite or permanent durations, to specify rental amounts without any adjustment mechanism to accommodate changes that can occur over time in the value of the currencies or the value of the territory. This has been addressed by states in various ways. We have seen above what occurred with the U.S. lease of the Canal Zone in Panama; with that lease, the annual rent was revised again in 1955 to the equivalent of 1,930,000 balboas.31 In another case, the rent that France pays to Spain for leasing the Quinto Real Norte (Pays Quint Septentrional) was revised after nearly a century through formal exchanges of diplomatic letters between the states and subsequently by an agreed-upon formula that adjusts the rent automatically every three years.32 The Lease’s Currency Flaw There were two official texts for the treaty of July 2, 1903, that completed the terms of the lease—one in English for the United States and one in Spanish for Cuba. This was becoming an accepted practice in treatymaking,33 and naturally dual texts are supposed to be identical in content and usually are. But in this case there was a difference: the English text stipulated that the annual rent to be paid by the United States to Cuba would be “two thousand dollars, in gold coin of the United States,” whereas the Spanish text stipulated that it would be “two thousand pesos in gold coin of the United States.”34 No financial motive could have justified this divergence, as U.S. dollars were made legal tender in Cuba after the Spanish-American War and kept that status after Cuba’s independence. (Spanish colonial currency and French currency that had been used in Cuba remained legal tender

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as well, as Cuba’s new government did not immediately introduce its own monetary unit).35 The difference in texts was most likely a diplomatic nicety, a sign of goodwill of the sort that states often incorporate into treaty language. But while such gestures are normally benign in terms of a treaty’s execution, setting the payment as both 2,000 dollars and 2,000 pesos harbored the potential for serious problems because the dollar’s value did not match the peso’s value in 1903. In fact, they were quite far apart. Cuba’s own peso was not created until legislation authorizing it was enacted eleven years later, in 1914.36 Thus the pesos in the lease referred to the Spanish colonial currency,37 which had enjoyed a value close to that of the dollar for some years. After the U.S. military victory in 1898, U.S. President William McKinley issued an executive order that altered the exchange rates in Cuba for the Spanish and French currencies, allowing them to stay in use but correcting for their inflated levels against the dollar.38 The peso was assigned a value of 60 U.S. cents.39 The compensation element of the lease was therefore impossible to execute as the terms had stated, because the United States and Cuban texts were mutually exclusive. A U.S. payment of $2,000 would give Cuba the equivalent of 3,333 pesos, whereas Cuba’s receipt of 2,000 pesos would be achieved if the United States paid only $1,200. Exacerbating this glaring flaw in the treaty, the diplomats who negotiated it failed to accommodate the possibility that the dollar/peso rate, regardless of where it was at the time, might change over the years while the lease was in effect. Such a change could have been reasonably expected— indeed, it should have been expected: it was already well-known that domestic monetary policies, economic circumstances, and political developments could affect currency values and strain arrangements between states to set the value of one currency at a definitive level against another. Sometimes these strains had been enough to force governments to adjust the rates or abandon the link altogether. Despite the potential threat this caused to the lease’s performance, the United States and Cuba completely ignored the matter. Although the rent was initially a material element of the lease, the fact that no consideration was given to potential future shifts in the dollar/peso rate suggests that the negotiators had little expertise in currency matters and either did not appreciate the implications of the existing value difference or viewed the divergent English and Spanish texts as a superfluous point with little real importance. If the fault went unnoticed by both states during negotiation and ratification, when presumably the treaty would have had the most scrutiny, it probably was not caught after it went into effect either, and this may explain why it never became a problem. The United States naturally complied with the text in its own language, effectively overpaying Cuba when measured by the Spanish-language text.

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In this regard, it should be noted that discrepancies between official treaty texts in more than one language did occasionally create serious enough problems to require adjudication when states could not agree on which text should prevail.40 At the time of the 1903 treaty, the United States frowned on clauses that would specify one version having supremacy over the other in the event of a dispute; “this expedient is rarely resorted to, and is, besides, in its nature offensive to one or the other contractant,” U.S. Secretary of State John Hay had said two years earlier.41 Today that gap is largely plugged by Article 33 of the 1969 Vienna Convention on the Law of Treaties, which stipulates that when one text is not specified as dominant, “the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.”42 Yet the texts are meant to match,43 and these disputes normally involve translations of words that are intended to be the same but are interpreted differently.44 By contrast, the reference to separate monetary units in the U.S.-Cuban lease treaty was a content difference that could only have been intentional—an abnormal construction—in an effort to describe the same obligation. When the United States and Cuba reconfirmed the Guantanamo Bay lease in the treaty of 1934, the difference in the two official texts was kept intact. By then, Cuba’s own peso was the state’s official currency. The dollar continued to coexist with it as legal tender, but the 1914 law had ended the use of Spanish pesos and French currency in Cuba.45 There is no sign that the negotiations toward the 1934 treaty included the matter of the currency difference in the 1903 texts, and it seemed like another example of the new treaty carrying forward a provision from the old one that had become obsolete. Yet because the currency that replaced the Spanish peso was also called a peso, the reaffirmation of the annual rent as 2,000 pesos in the Spanish text could still apply with regard to the Cuban peso. Whether that was intentional or an oversight as the treaty was rushed to completion, we can never be sure. If it was an accident, it was a fortunate one. The 1914 law had fixed the new Cuban peso’s value at parity with the dollar by making the silver content of the peso equal to that of the U.S. silver dollar46 (which had legal parity with the U.S. gold dollar). That meant the United States could pay $2,000 and Cuba would receive the equivalent of 2,000 pesos. The official dollar/peso parity proved amazingly durable, lasting until 2005 with only a few periods of significant deviations. Particularly in recent years, this stability has been artificially induced, as the peso’s real value fell substantially against the dollar. Between 1994 and 2005 Cuba sustained the official one-to-one ratio with a dual-peso policy that involved a nonconvertible peso valued at a fraction of a dollar for use within Cuba and a convertible peso valued at exactly one dollar for international transactions.

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When Cuba ended the parity in 2005 by raising the convertible peso’s official value to 1.08 dollars, the annual U.S. payment of 4,085 dollars that has prevailed since the 1970s started yielding only 3,782 pesos when ´ Castro, indicated that converted.47 In 2008 the new Cuban president, Raul the divergence could increase as Cuba studied “the progressive, gradual and prudent revaluation of the Cuban peso.”48 With parity disappearing again, two factors are preventing the discrepancy in the text on compensation from becoming a problem. One is the fact that the rental amount is no longer a material element of the lease, making any monetary consequences of ending the dollar/peso parity extremely minor. The other is that Cuba’s opposition to the U.S. presence at Guantanamo Bay has caused it to spurn the rental payments, so the actual financial impact is nil. In this context, both states are continuing to ignore this defect in the lease and are acting with regard to the rental payments as though the dollar/peso parity were assumed. Because it has not become an issue, the discrepancy in the English and Spanish texts might seem trivial, but under different circumstances or with stricter interpretation of the treaty it could have been otherwise. Perhaps its main significance today is that it shows how Cuba, too, can unilaterally alter an element of the Guantanamo Bay lease. By acting at a level that is one step removed from the lease itself and causing a change in an underlying factor—the dollar/peso rate—it is not entirely powerless to influence the arrangement. In contrast to how the matter of currency was treated in the Guantanamo Bay lease, the 1936 revision of the Canal Zone lease had a remarkably simple solution: it specified the new annual rental amount in the Panamanian currency, 430,000 balboas, but allowed the United States to make payments “in any coin or currency, provided the amount so paid is the equivalent of four hundred and thirty thousand balboas.”49 This flexibility was retained when the rent was raised in 1955. The Vanishing Rent Checks Although the rent for Guantanamo Bay has become a token payment, the United States remains legally obliged to remit it to Cuba. In compliance with this obligation, it has continued to make payments of $4,085 on or before July 2 of each year by means of a U.S. Treasury check made out to the Treasurer General of the Republic of Cuba.50 The funds for the rent come from the U.S. Department of the Navy, which initiates the process of producing the annual check early each year. The Department of State is then enlisted to deliver the check, but because the United States does not have an embassy in Cuba the check is transmitted to the Cuban government by way of the U.S. Interests Section, a diplomatic office in Havana that is maintained by the State Department

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but falls short of embassy status.51 The U.S. Interests Section interacts with Cuba’s government by way of the Swiss government, under whose legal protection it operates.52 In 1959, after the Cuban revolution, the new government cashed the annual U.S. rent check. According to Fidel Castro, it was “due to a mere confusion” that the check was cashed and entered into the national budget.53 Starting in 1960, Cuba has refused to cash the checks from the United States “in rejection of what it justly considers to be an illegal usurpation of a portion of its territory.”54 Cuba does not actually turn the checks away. According to a U.S. government official familiar with Cuba and Guantanamo Bay,55 the annual check is not refused upon receipt, nor is it subsequently returned to the United States. “It’s not rejected, but I’ve never seen any evidence that the Cubans . . . have cashed the checks,” he told the author. According to the official, the United States considers that it complies with its obligation as payor by providing the check to Cuba’s government. However, this is uncertain from a legal standpoint. Municipal law in both the United States and Cuba has long supported the notion that a payment by check is not made until the check is cashed. In the United States, this has been established repeatedly through court decisions in commercial cases.56 Rulings compiled by Stewart Rapalje in 1891 stated that “a bank check is not payment of a preexisting debt until cashed, without an agreement to receive it as such, any more than a promissory note is a payment of such a debt,”57 and “the bare reception of a check from drawee for amount of a bill will not, ordinarily, be considered a payment, but only as a means of payment.”58 This has been affirmed in other cases cited by the Harvard Law Review in 191059 and in more recent years through rulings by the Nevada Supreme Court in 197960 and the Supreme Court of Wyoming in 1997.61 Miranda Bravo argues that from a municipal law perspective, Cuban rather than U.S. law would apply to the Guantanamo Bay rent payments under the doctrine of greater weight, as the leased territory is in Cuba and the creditor is Cuba. Under Cuban law, too, “the simple issuing or the simple receipt of the check does not mean that the payment has been made,” she writes, adding that the recipient must perform an act that is “an unequivocal sign of its acceptance,” and therefore cashing the check is required to effect the payment.62 Indeed, this legal standard of whether a debt is discharged is common in the world, as a comparative study noted: “In the Anglo-American, German, and French law, payment by bill, note or check is presumptively conditional. The underlying obligation subsists, but its enforcement is in effect suspended until the maturity of the instrument.”63 The United States has not sought to make payment by alternate means such as electronic funds transfer because of “the absence of normal

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banking relations between the U.S. and Cuba,” the U.S. government official said. Although the U.S. Mint resumed production of gold coins in 1986,64 the United States has not reverted to using these gold dollars as the means for paying the rent. U.S. Treasury checks have no validity after one year,65 resulting in the United States having access to the territory it leases at Guantanamo Bay at no cost. This occurs without any substantive financial consequence to Cuba because the annual payment has become a token amount. As for the rent checks themselves, they simply vanish—or do they? Published accounts in recent years have mentioned Castro keeping them in a safe deposit box in a Swiss bank66 or in his desk in Havana.67 The U.S. official said he had heard the latter story from three people (these were the checks reportedly shown to oceanographer/filmmaker Jacques Cousteau when he made a documentary in Cuba), but the official could not verify this story.68 In a 2004 newspaper interview, the commander of the Guantanamo Bay naval station, Captain Les McCoy, was asked about the checks. “We have no idea what happened to them,” he said. Cuba maintains that it is holding onto the checks and that once control over Guantanamo Bay reverts to Cuba, it will put them on public display at a future museum to be devoted to the territory.69

CHAPTER 8 RECENT AND CURRENT ISSUES ASYLUM SEEKERS AND REFUGEES Political and Legal Background The idea of using Guantanamo Bay as a site for housing asylum seekers awaiting decisions by the United States on their status as refugees arose for the first time in 1981. The year before, Cuba had allowed its citizens to leave the country, and about 125,000 of them made their way to the United States in small boats—an exodus that was known as the Mariel boatlift. The majority made the voyage of their own volition, but the boatlift included about 8,000 people whose exit was facilitated, and in some cases forced, by the Cuban government; these people were considered socially undesirable in Cuba because of criminal records and other reasons ranging from mental illness to homosexuality.1 Four military installations on U.S. sovereign territory were equipped for housing and processing the arriving Cubans,2 and approximately 20,000 were sent to Fort Chaffee in Arkansas.3 However, U.S. immigration officials moved slowly in weighing their applications for refugee status and, as the Cubans at Fort Chaffee grew frustrated, there were disturbances that developed into serious riots.4 The boatlift and riots turned into political liabilities for elected U.S. officials, and analysts blamed the events for contributing to Jimmy Carter’s loss of the U.S. presidency and Bill Clinton’s loss of the Arkansas governorship in the 1980 elections.5 In 1981, after most of the Cubans held at Fort Chaffee had been processed and resettled in the United States, a decision was made to relocate the remainder—nearly 1,000 mentally ill, retarded, homosexual, handicapped, and elderly Cubans—to a site that might be more politically benign. David Gergen, a White House spokesman, indicated that moving the refugees to Guantanamo Bay was one option under consideration. Another Administration official confirmed that Guantanamo Bay was a possibility but termed it a “very remote” one. . . .

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Mr. Gergen would not rule out eventual deportation, but Cuba has refused to take back any of the refugees. A shift to Guantanamo Bay would not constitute deportation, Mr. Gergen said, because the United States does not consider the base to be Cuban territory. But he was quick to add that several options were being discussed.6

The Cubans remaining at Fort Chaffee were finally sent to a military base in Montana rather than to Guantanamo Bay.7 Yet the idea of using Guantanamo Bay as a site for holding and processing asylum seekers had taken root, and ten years later, when the United States faced a large influx of new asylum seekers from Haiti, Guantanamo Bay was selected as the location for this activity. The administrative, logistical, and political matters that arose from their presence forced the United States to make decisions about the Haitians’ legal rights on the territory, and some of these decisions led to legal challenges in U.S. courts. The rulings in these cases identified where further deviations existed between the completeness of the jurisdiction that the United States has on its own sovereign territory and the degree of jurisdiction that it exercises at Guantanamo Bay. Specifically, they yielded a more concrete definition of the legal relationship between the United States and Guantanamo Bay vis-`a-vis non-U.S. nationals on the territory. But in keeping with the piecemeal buildup of Guantanamo Bay’s jurisdictional framework, they showed once again how it remained a “work in progress” after nearly a century of U.S. control. The events that gave rise to the series of court rulings about Guantanamo Bay in the 1990s started with the overthrow of Haitian President Jean-Bertrand Aristide in September 1991. For some years prior to that, Haitians seeking better economic circumstances were abandoning their country by sea in modest numbers in the hope of reaching the United States and securing asylum. In 1981 the U.S. Coast Guard began to interdict Haitians en route to the United States on the high seas, where they were screened briefly aboard Coast Guard vessels for their motives, with the result that most failed to qualify as refugees and were repatriated to Haiti while some were brought to U.S. sovereign territory to formally apply for asylum. Aristide’s ouster prompted a new and much larger outflow of Haitians, many fearing for their lives in the aftermath of the coup that toppled his government. As before, the United States interdicted them on the high seas, screened them aboard Coast Guard vessels, and repatriated most of them while allowing those it determined were true refugees to apply for asylum. As the exodus grew rapidly to involve many thousands of Haitians, the U.S. actions became as much a humanitarian mission to rescue those

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in unseaworthy boats as it was an effort to prevent a flood of Haitian economic immigrants into the United States. The volume of Haitians soon overwhelmed the Coast Guard’s capability to process them at sea, and in November 1991 it began transporting them to Guantanamo Bay in numbers that quickly rose into the thousands.8 All accounts point to the transfer of the Haitian asylum seekers to the base as being dictated entirely by expedience, without regard to the territory’s legal status, to alleviate what had become a humanitarian emergency. Guantanamo Bay was geographically convenient and physically large enough to accommodate the influx, for whom makeshift housing was quickly built, and the existing U.S. presence allowed for the screenings to take place there. The U.S. treatment of asylum seekers at Guantanamo Bay brought into play various legal instruments. Two were multilateral agreements—the 1951 UN Convention relating to the Status of Refugees9 and the 1967 UN Protocol relating to the Status of Refugees, adopted to expand the Convention’s coverage.10 These set the legal benchmark for states to use when determining if an asylum seeker merits refugee status; they defined a refugee as a person who, “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”11 (This definition was broadened by the Office of the UN High Commissioner for Refugees to include someone who does not meet the Refugee Convention’s strict standard but who has a recognized need for humanitarian protection.12 ) The other instruments were U.S. laws, notably the Immigration and Nationality Act (INA) of 195213 and the Refugee Act of 1980.14 The Refugee Act amended the INA in the context of the two UN agreements, which the United States had embraced in 1968, and it also updated U.S. procedures for handling foreign nationals seeking political asylum. These procedures allowed for the discretionary granting of asylum to those whose claims about threats to their life or freedom in their state of origin were deemed valid by way of a screening process and prohibited the United States from engaging in refoulement, the expelling and turning back of applicants who qualified as refugees.15 The Haitians brought to Guantanamo Bay for processing were housed in camps surrounded by razor-wire fences, where their access to facilities and services was a seemingly ad hoc mix—they could avail themselves of medical care, educational programs, and religious services but were denied access to telephones and legal advice. Asylum seekers who were found in initial screenings to have a credible fear of returning to Haiti were deemed “screened in” pending their transfer to the United States as formal asylum applicants, and the rest were slated to be returned to Haiti.16

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The cursory screenings were superseded by an executive order from President George H. W. Bush in May 1992—known as the Kennebunkport Order—under which the United States began returning Haitians interdicted on the high seas to Haiti without screening their claims.17 This led to the closing of the Guantanamo Bay camp, and the asylum seekers with credible claims were transported to the United States18 while the rest were returned to Haiti. “We were overwhelmed by the numbers,” the U.S. deputy assistant secretary of state for refugee programs, Brunson McKinley, said at the time. “We became convinced that the Guantanamo operation and the presence of U.S. Coast Guard cutters offshore had become a magnet, causing more and more Haitians to take to the boats. In this circumstance, we were compelled to act to end or to reduce greatly the boat exodus.”19 The Guantanamo Bay naval base resumed taking in Haitians in 1994, after the United States resumed on-ship screenings of asylum seekers in May in response to a fresh exodus amid renewed unrest in the country,20 and within months the number housed at Guantanamo Bay had swelled to 21,000. After Aristide was restored to power that October, the United States wound down its processing of Haitians at Guantanamo Bay once again, and by early 1995 all of those who were not transported to the United States were repatriated to Haiti.21 It was during this period that Guantanamo Bay was also used to accommodate thousands of Cubans who were interdicted by U.S. ships as they seized a chance to leave the island, also in the hope of obtaining asylum in the United States. Most were accepted into U.S. sovereign territory in 1995, and the camp housing them at the naval base was closed in early 1996.22 This ended the physical presence of large numbers of asylum seekers at Guantanamo Bay, although the territory remained a site for processing small numbers of migrants and has retained its readiness to be used for this purpose on a large scale again. Rulings in Key Cases Already in 1991 and 1992, refugee assistance organizations were launching legal challenges to the U.S. handling of asylum seekers from Haiti. They argued that the high-seas interdictions and returns violated Article 33 of the 1951 UN Convention, which banned the expulsion or return of refugees to territories where they faced threats to their lives or freedom, and Section 243(h)(1) of the INA, which banned the U.S. government from deporting asylum applicants who qualified as refugees. They also argued that denying asylum seekers at Guantanamo Bay access to lawyers violated rights granted by the U.S. Constitution to allow communication with attorneys (under the First Amendment) and to have due process (under

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the Fifth Amendment). The U.S. executive order of May 1992 also was challenged. The rulings in these cases, including those that did not directly consider issues at Guantanamo Bay, affected the asylum seekers at the base by determining the extent of jurisdiction that applied to them because of their location. Haitian Refugee Center, Inc. v Baker (1992)23 : The U.S. Court of Appeals for the Eleventh Circuit ruled that the Haitian asylum seekers were not covered by the INA because they were interdicted on the high seas and not on U.S. territory. The INA defined U.S. territory for purposes of its application as the continental U.S. states, Washington, D.C., Alaska, Hawaii, Puerto Rico, Guam, and the Virgin Islands; everything else was considered outside it. The court also decided that the asylum seekers did not have rights under the UN Convention’s Article 33 because it was not self-executing and had not been the subject of U.S. implementing legislation. Additionally, the court ruled against allowing the asylum seekers at Guantanamo Bay access to attorneys—but not on the basis of weighing the territory’s status vis-`a-vis U.S. sovereign territory; rather, it determined that accommodating the presence of attorneys at the base would place an undue burden on the U.S. government and cited an earlier case in which it was ruled that First Amendment rights are not necessarily infringed by refusing such access to asylum seekers in U.S. custody. Haitian Centers Council, Inc. v McNary (1992)24 : The U.S. Court of Appeals for the Second Circuit ruled that “screened in” asylum seekers at Guantanamo Bay had Fifth Amendment rights, based on the stipulation in the lease that arrested and accused aliens at Guantanamo Bay are subject to U.S. criminal laws, which the court judged would most likely apply to civil laws as well. It determined that the asylum seekers would, by implication, have similar rights of due process: “We believe there is no principled basis for concluding that the ‘screened in’ plaintiffs detained at the base would have fewer substantive rights than these other aliens,” it said. The ruling was subsequently vacated. Haitian Centers Council, Inc. v McNary (1992)25 : Shortly after the previous case, the Second Circuit Court reached a conclusion that conflicted with that of the Eleventh Circuit Court in Haitian Refugee Center, Inc. v Baker regarding the interdiction and return of the Haitian asylum seekers. It held the Kennebunkport Order to be illegal, as the Refugee Act had amended the INA to eliminate its differentiation between asylum seekers “within the United States” and those not within it, and therefore the INA did apply extraterritorially. The INA’s definition of what constituted the United States thus did not matter here. The court also deemed Article 33 of the UN Convention to have extraterritorial application, as the U.S. interdictions on the high seas prevented the fleeing Haitians from reaching

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states other than the United States. The U.S. Supreme Court stayed the decision and granted an appeal. Sale v Haitian Centers Council, Inc. (1993)26 : The Supreme Court, hearing the appeal of the preceding case as Sale v Haitian Centers Council, Inc., reversed the Second Circuit Court’s ruling. The Supreme Court determined that the INA’s non-refoulement requirement only applied if the asylum seekers were subject to deportation or exclusion hearings. It found that these proceedings could occur only on U.S. territory because the INA, which laid the groundwork for the hearings to take place, made no provision for them to occur anywhere except within the United States, as defined by the INA. The court also ruled that the non-refoulement obligation in the Convention relating to the Status of Refugees could not be applied by the United States to asylum seekers who are physically outside U.S. sovereign territory. Cuban American Bar Association v Christopher (1995)27 : The Eleventh Circuit Court reaffirmed its 1992 decision in Haitian Refugee Center, Inc. v Baker, ruling that Cuban asylum seekers at Guantanamo Bay were outside the United States because the complete jurisdiction and control the United States had on the territory did not equal sovereignty. The ruling overturned a district court’s injunction that had barred the repatriation of Cuban asylum seekers at Guantanamo Bay to Cuba. The district court had considered the Supreme Court’s decision in Sale v Haitian Centers Council, Inc. to apply to the high seas as extraterritorial, but not to the Haitian asylum seekers housed at Guantanamo Bay because the lease gave the United States complete jurisdiction and control on the territory. Because of this, it had reasoned, the Cubans held at Guantanamo Bay also had rights under the Constitution. This sequence of rulings formalized the split between the U.S. legal system’s jurisdiction over asylum seekers on U.S. sovereign territory and its jurisdiction over asylum seekers outside it in the context of deciding the applicability of a law that defined Guantanamo Bay as outside it. In the process, the Supreme Court noted in Sale v Haitian Centers Council, Inc. that “Acts of Congress normally do not have extraterritorial application unless such an intent is clearly manifested.” This confirmed the conclusion that Maris had reached in the 1960s—that the comprehensiveness of U.S. jurisdiction at Guantanamo Bay would continue to be shaped by legislation on a case-by-case basis, the same approach that is seen at the level of the U.S. Constitution itself. Although these rulings did add some clarity to the relationship between the United States and Guantanamo Bay with respect to non-U.S. nationals and immigration issues, they fed into the piecemeal approach to the territory’s overall jurisdictional framework. The overall situation remained confused, because the rulings about legislation and rights pertaining to

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the asylum seekers appeared to clash with the way the lease intended criminal law to be applied at Guantanamo Bay. As Thomas David Jones and Judith Hippler Bello note, “Inexplicably, although these refugees were said to have no cognizable rights under U.S. law and Guantanamo Bay remains under Cuban sovereignty, refugees who committed crimes at Guantanamo were prosecuted under U.S. law. This is a concession that these refugees have some due process rights or are subjects of U.S. laws. If U.S. laws do not govern or apply to migrants at Guantanamo, which laws do apply?”28 By highlighting the jurisdictional gap that exists at Guantanamo Bay, these cases helped to reveal a side of sovereignty that previously had gone undetected by legal and political theorists: on one hand, sovereignty allows a state to establish and maintain its own legal system on its territory, to the exclusion of other states; on the other hand, it allows a state to engage in creating territorial entities that its legal system decides it cannot cover. The implications of this paradox for international law and the Westphalian system of states are examined in the final chapter. THE DETENTION OF ALLEGED TERRORISTS Political and Legal Background Before September 11, 2001, terrorist attacks on U.S. sovereign territory were prosecuted in civilian courts under state or federal criminal codes that applied to acts that included homicide, bombing, kidnapping, assault, and battery.29 Terrorism was also an area in which the U.S. legal system had extraterritorial jurisdiction through legislation that covered terrorist acts outside the United States that targeted U.S. citizens.30 The military campaign against al Qaeda and the Taliban that emerged as the U.S.-led response to the 9/11 attacks reflected a fundamental policy shift toward considering terrorists to be military enemies rather than civilian lawbreakers. This might be viewed as an extension of the existing practice of assessing certain states’ governments as encouraging terrorism, which puts them into the realm of potential U.S. military enemies. However, the terrorists in this case acted as agents of beliefs, not as agents of a state—Afghanistan—whose authorities shared those beliefs, so this “war” deviated in many respects from true military conflicts among states and brought the United States into uncharted territory with respect to international humanitarian law. Al Qaeda and Taliban suspects who were detained by military troops outside the United States became subject to the jurisdiction of the U.S. system of military justice that exists in parallel to its civilian legal system, and in January 2002 the United States began transporting captured prisoners to the naval base at Guantanamo Bay for detention and trial.

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The U.S. military justice system is a product of legislation that gave it extraterritorial jurisdiction that specifically includes Guantanamo Bay— not by name, but through the lease that gave the United States control of the territory. The Uniform Code of Military Justice stipulates that people subject to its authority include “persons within an area leased or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary concerned and which is outside the United States and outside the Canal Zone, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.”31 The handling of the detainees had a complicating aspect: they were not given the status of prisoners of war, which would have afforded them certain legal protections and rights under the Third Geneva Convention32 at Guantanamo Bay or anywhere else; nor were they U.S. military personnel, who have constitutional protections and other rights at Guantanamo Bay under the Uniform Code of Military Justice. The detentions triggered litigation about what legal protection and rights, if any, the prisoners had in view of their combination of circumstances: their placement within the military justice system, their absence of prisoner of war status, and their physical location on a leased territory where U.S. jurisdiction had been inconsistently applied and its nature never comprehensively resolved. With all three factors intertwined, the process of determining the detainees’ legal situation vis-`a-vis U.S. jurisdiction has progressed through a series of cases since 2002. This alone generated further legal questions by leaving many of the detainees in the position of being held for some years at Guantanamo Bay without being charged with crimes or tried. As this scenario unfolded in the years preceding the 2009 executive order to close the detention center, the U.S. government responded to court rulings in some of the cases by making decisions and promoting legislation that would alter the impact of the rulings in several respects: how the prisoners were classified, the procedures of military justice that would apply to them, and the scope of their rights, most notably whether they had habeas corpus rights under the Constitution to challenge their circumstances of detention in a U.S. civilian court. The territorial status of Guantanamo Bay was a factor in challenges to some of these actions. Rulings in Key Cases Al Odah v United States (2003)33 : The U.S. Court of Appeals for the District of Columbia Circuit, consolidating three cases heard in the D.C. District Court,34 ruled that non-U.S. citizens held as prisoners at Guantanamo Bay did not have constitutional rights. The fact that Guantanamo Bay was a leased territory was central to this case—the court viewed Johnson v Eisentrager as excluding non-U.S. citizens from having rights outside U.S.

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sovereign territory, so it had to decide if either the terms or the legal nature of the lease gave the U.S. de facto sovereignty over Guantanamo Bay. Referring first to the terms of the lease, the court rejected the argument that U.S. military control through the lease made Guantanamo Bay a territory of the United States over which the United States exercises sovereignty. It also decided that the special maritime and territorial jurisdiction of the United States, under which non-U.S. citizens may be charged with crimes committed at Guantanamo Bay, does not give the U.S. sovereignty over it. “The text of the (lease) . . . shows that Cuba—not the United States—has sovereignty over Guantanamo Bay,” it said with regard to these issues. Concerning the nature of the lease, attorneys for the detainees sought to equate Guantanamo Bay with the Trust Territory of Micronesia, where U.S. due process rights did apply. The court, however, said the Micronesia arrangement was a trusteeship, not a real estate transaction, and that “Congress intended the Micronesia Trust Territory to be treated as if it were a territory of the United States.” This led the D.C. Circuit Court to rule in 1977 (in Ralpho v Bell35 ) that residents of Micronesia were “American subjects,” but it did not equate this status with that of “an alien held at a military base leased from another nation.” Rasul v Bush (2004)36 : Hearing an appeal of the preceding case, which was consolidated into Rasul v Bush, the Supreme Court decided that Johnson v Eisentrager did not apply to the detainees at Guantanamo Bay because their circumstances were sufficiently different from those of the prisoners held by the United States in postwar Germany. By rejecting the underlying premise of Al Odah v United States, it reopened the issue of the extraterritorial reach of U.S. jurisdiction in a broader sense, then used the Guantanamo Bay lease in judging this particular case. The Supreme Court had stated in Sale v Haitian Centers Council, Inc. that “Acts of Congress normally do not have extraterritorial application unless such an intent is clearly manifested,” but it concluded in Rasul v Bush that “Whatever traction the presumption against extraterritoriality might have in other contexts, it certainly has no application to the operation of the habeas statute with respect to persons detained within ‘the territorial jurisdiction’ of the United States.” It cited the lease for giving the United States “complete jurisdiction and control” over Guantanamo Bay and noted that a U.S. citizen held at the base would be subject to the jurisdiction of U.S. courts. “Considering that the statute draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the geographical coverage of the statute to vary depending on the detainee’s citizenship,” it said. The Supreme Court also ruled that with respect to the “privilege of litigation” sought by prisoners in Al Odah v United States,

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“nothing in Eisentrager or in any of our other cases categorically excludes aliens detained in military custody outside the United States” from having this right. The court further ruled that because the U.S. legal system has unquestioned jurisdiction over the government that was holding the prisoners at Guantanamo Bay and whose actions were the object of the prisoners’ legal challenges, the U.S. courts had jurisdiction to hear those challenges. A concurring opinion by one Supreme Court justice37 gave a different reason for concluding that the prisoners have habeas corpus rights—the lease itself and its performance over time: “This is no ordinary lease. Its term is indefinite and at the discretion of the United States. What matters is the unchallenged and indefinite control that the United States has long exercised at Guantanamo Bay. From a practical perspective, the indefinite lease of Guantanamo Bay has produced a place that belongs to the United States, extending the ‘implied protection’ of the United States to it.” The fact that the court was split three ways regarding the lease when it decided Rasul v Bush—the majority opinion,38 the concurring opinion, and the dissenting opinion (that Guantanamo Bay was “beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its courts”)39 —showed how the U.S.-Cuban arrangement and its interpretation remained problematic from the standpoint of U.S. jurisdictional decisions. Boumediene v Bush (2008)40 : It did not take long for the issue to arise again. A process of military commissions, or tribunals, that was established by presidential order soon after the 9/11 attacks was ruled illegal by the U.S. Supreme Court in 2006 after its application at Guantanamo Bay on grounds that it violated both the Uniform Code of Military Justice and the Geneva Conventions.41 This prompted the United States to enact the Military Commissions Act of 2006 as a legal basis for the tribunals it planned for the detainees. Among other things, the Act subverted the decision in Rasul v Bush by prohibiting the prisoners from challenging their detention in civilian courts.42 The removal of their habeas corpus rights once again came before the Supreme Court, which ruled in Boumediene v Bush that the detainees at Guantanamo Bay did in fact have those rights. In deciding that U.S. constitutional rights applied at Guantanamo Bay, the court said the nature of the state-territory relationship, in which it found the United States to have de facto sovereignty, was one of three relevant factors it weighed. The others were the detainees’ citizenship and status and how these were determined, and practical obstacles relating to their entitlement to habeas corpus writs. The ruling did not say the full U.S. Constitution applies in all circumstances at Guantanamo Bay; rather, it accepted “the idea that questions of extraterritoriality turn on objective factors and practical concerns.”43

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WHY GUANTANAMO BAY? The Selection of Guantanamo Bay Using military means to resolve a problem is often more dramatic, and sometimes more decisive, than resolving it through conventional peacetime channels. By reframing terrorism as a military threat instead of a problem for civilian law enforcement, the U.S. administration quickly secured broad public and legislative support for responding to the 9/11 attacks in ways that would appear rapid, determined, and tough. As Charles J. Dunlap, Jr., noted shortly after those events, “many Americans are exasperated with the law, especially when traditional applications of it proved to be an inadequate guarantor of basic security on September 11th.”44 The shift toward making terrorism a military enemy had important legal and practical consequences. First, it allowed the United States to pursue solutions outside its sovereign territory, which brought its actions into the sphere of international law in addition to (and sometimes instead of) municipal law. Second, it allowed the United States to use its armed forces in pursuing these solutions. Third, it created a means by which prisoners taken by the United States could become subject to its military justice system rather than to civilian courts. Treating the matter as a “war” to be waged abroad made it probable that these prisoners would be primarily non-U.S. citizens captured by military forces on the territory of other states. This created a need for the United States to have at least one facility where they could be brought for detention, and the decision regarding where to locate it was the task of an interagency working group created by the U.S. government for that purpose. Led by the Department of Defense, it also included the Department of Justice and its law enforcement branch, the Federal Bureau of Investigation; the Department of State; the Central Intelligence Agency; and the National Security Council.45 As described by Daniel F. McCallum, the working group considered four broad options for a site: 1. Within the U.S. states. 2. On other territory where the United States has sovereignty, such as Guam. 3. At Guantanamo Bay. 4. On the territory of other states.

It then assessed a series of factors in connection with each option: 1. The impact on U.S. domestic security, which would be of particular concern if the detention facility were located within the United States.

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2. The impact on U.S. foreign relations, which would be of particular concern if the facility were located in another state. 3. The ability to secure the facility and control access to the area surrounding it. 4. The size of the detention facility, and the potential to expand it if necessary. 5. The balance between the desirability of a remote location for security reasons and an accessible location so that U.S.-based intelligence and law enforcement personnel would have ready access to the prisoners. 6. The risk of litigation by the prisoners, specifically their access to U.S. federal courts where they could file writs of habeas corpus to challenge their detention. 7. The costs of preparing, maintaining, and operating the detention facility.

When these factors were matched against the possible locations, the working group deemed Guantanamo Bay to have the best mix of advantages and disadvantages, taking into account the primary interests of the various agencies involved in the group. It determined the advantages of Guantanamo Bay to be: 1. U.S. control of the territory. 2. Minimal concerns for U.S. foreign relations. 3. Minimal concerns for U.S. domestic security. 4. The immediate availability of facilities with room for expansion. 5. The fact that the facilities would be on a military base with adequate security and an existing infrastructure. 6. The proximity to the U.S. mainland, allowing ready access by intelligence and law enforcement personnel. 7. A minimal risk of litigation.

The only disadvantage it identified was the impact on relations with Cuba, but because these were already strained, this was not considered a serious problem. The decision thus was made to put the detention facility at Guantanamo Bay.46 From a security perspective, Guantanamo Bay was well-placed. It was accessible only by air and sea, except for a single land entry point, usually sealed, that connects it with the rest of Cuba’s sovereign territory47 ; the land portion of the U.S. naval facility was separated from the rest of Cuba’s territory by several layers of metal fencing plus barbed wire; and a minefield entirely surrounded the base on the Cuban side of the fence.48 Yet it was the minimal risk of litigation, an assessment made by the Department of Justice, that was later acknowledged by U.S. military and civilian authorities to have been the most critical factor in the decision and perhaps the only one that really counted. An article published by the U.S. Department of Defense in 2005 stated unambiguously that

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“Guantanamo Bay was chosen as a detention facility and site for trials because of its unique legal standing.”49 A high-security site can be established anywhere, but the U.S. administration felt that Guantanamo Bay had unparalleled advantages as a place where it could deal with prisoners without the threat of obstacles arising from the civilian legal system’s jurisdiction. The Justice Department was so intent on keeping the captured prisoners outside the reach of U.S. civilian courts that it even disparaged the court system’s capacity to handle the cases and argued that it could no longer be counted on as an ally: In the weeks following 9/11, lawyers at State, Defense, the White House, and Justice formed an inter-agency task force to study the issues related to detention and trial of members of al Qaeda. The one thing we all agreed on was that any detention facility should be located outside the United States. Civilian criminal courts might not even be able to handle the number of captured terrorists—overwhelming an already heavily burdened system. We researched whether the courts would have jurisdiction over the facility, and concluded that if federal courts took jurisdiction over POW camps, they might start to run them by their own lights, substituting familiar peacetime prison standards for military needs and standards. No location was perfect, but the U.S. Naval Station at Guantanamo Bay, Cuba, seemed to fit the bill. . . . Gitmo was well-defended, militarily secure, and far from any civilians. The first Bush and Clinton administrations had used Gitmo to hold Haitian refugees who sought to enter the United States illegally. One case from that period had concluded that by landing at Gitmo, Haitians did not obtain federal rights that might preclude their return. This suggested that the federal courts probably wouldn’t consider Gitmo as falling within their habeas jurisdiction, which had in any event been understood to run only within the territorial United States or to American citizens abroad.50

The assertion that the civil court system was so busy that it could not cope with a new influx of cases was dubious, as the claim was made only with respect to terrorism-related cases and not others. Moreover, an increase in these cases would most likely be incremental relative to the total activity of a large national judicial system that had always adjusted to rising caseloads and new forms of criminality that have accompanied the growth and changing character of the U.S. population. Indeed, if the influx of terrorism cases were to prove more than incremental, even the military justice system would be strained without substantially augmenting its physical infrastructure and personnel. “U.S. civilian courts have had considerable experience in trying terrorists, dating back a century,” notes Detlev F. Vagts. While there may be concerns about the confidentiality of sensitive information, the speed of the process, and problems arising from the way accused terrorists may have been handled before arraignment, he says, the system nonetheless

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has significant advantages that include a reputation for independence and impartiality and a greater likelihood of cooperation from foreign authorities.51 Fr´ed´eric M´egret likewise writes that “it is doubtful that there is something intrinsically impossible about conducting normal domestic trials for terrorists” in civilian courts. He notes that military justice may arouse distrust abroad, and that there is no obvious reason to use it with post-9/11 terrorism suspects given that it was not used with suspects in previous terrorism cases or in the “war against drugs.”52 Yet he observes that with military justice, “the state is left with a considerably freer hand than it would have” within the civilian court system.53 This may have been another factor that played into the decision to put the detention center at Guantanamo Bay. Its isolation from the mainland United States minimized the prospects for public scrutiny of the prisoners’ treatment, and there is evidence that some U.S. authorities believed this treatment could overstep the bounds of what the U.S. legal system allowed. Citing a report prepared by lawyers for Secretary of Defense Donald Rumsfeld, Gerard P. Fogarty notes that “the advantages [of Guantanamo Bay] lie principally in removing the rights of detainees to question the legality of their detention in U.S. courts and to facilitate permissive interrogation techniques that would otherwise be constrained by statute.”54 Similarly, British legislators visiting Guantanamo Bay in 2006 were told by U.S. authorities “that it would not be feasible to locate such a facility on U.S. territory, as this would mean that various rights would accrue to detainees, such as the right to apply for asylum or to pursue a legal action against guards. The fact that U.S. federal law does not apply in Guantanamo is the single most important reason why foreign detainees continue to be held there, and not in the United States.”55 While it was widely considered within the U.S. government that the treatment of prisoners at Guantanamo Bay was immune from domestic legal constraints, the U.S. Navy’s top legal officer went further, concluding that any actions the United States might take regarding the detainees there were also shielded from a broad range of international laws by virtue of the territory’s legal status vis-`a-vis U.S. sovereign territory: “Because of these unique circumstances the U.S. Torture Statute, the Constitution, the Geneva Conventions and customary international law do not apply, thereby affording policy latitude that likely does not exist in almost any other circumstance,” Michael J. Lohr said in a 2003 memorandum.56 Because Guantanamo Bay was leased, because U.S. courts had decided the lease agreement meant it was not sovereign U.S. territory, and because this legal status appeared to disallow certain rights that the detainees could otherwise exercise in their defense, the United States could readily conclude that Guantanamo Bay gave it the best chance of prosecuting the detainees successfully. Taking advantage of this opportunity was not all

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that different from the practice within the U.S. legal system of “shopping” for a jurisdiction or court that is most likely to deliver the desired outcome in a case. However, with the detainees at Guantanamo Bay, it was being applied to an entire judicial process. It may have had another purpose as well—something that has become known as “lawfare,” a term popularized by Dunlap, who describes it as “a method of warfare where law is used as a means of realizing a military objective.”57 Lawfare was initially seen within the United States as something its military enemies practiced against it, but its use was expanding.58 Kelly D. Wheaton notes that law has become “a tool of war” that is neither inherently right or wrong and that “lawfare in its broadest meaning represents both risk and opportunity for the U.S. military.”59 By transforming terrorism into a military enemy, the United States could view the legal rulings that limited the rights of asylum seekers at Guantanamo Bay as a tool it could use in its fight against terrorism after 9/11—a tool that would have been unavailable if terrorism were still a problem handled by the civilian court system. What made the rulings so attractive was that they blocked key aspects of U.S. law from applying to the detainees as long as they were sent to Guantanamo Bay. Removing the law, or at least a significant portion of it, effectively eased what some perceived as a constraint on the fight against terrorism that handicapped the United States in a military sense. One can infer from comments by Glenn Sulmasy and John Yoo that U.S. authorities were cognizant of this and were tempted to take actions that would overcome the handicap: Deciding what rules to apply to a new type of armed conflict inherently calls for judgments that are based far more on policy preferences and balancing of costs and benefits. . . . The post–World War II era has witnessed dramatic changes in media coverage of war, rapid growth in nongovernmental organizations, and vast technological advances in the means and methods of fighting wars. These issues, combined with our commitment to adhere to the law of armed conflict, have been a catalyst for opponents to use legal rules and processes as part of their operations, what military observers term “lawfare.” Our adherence to law and process within warfare has risen to a level that some now assert interferes with the efforts of military commanders to achieve victory on the battlefield.60

It is apparent that one of the “policy preferences” of U.S. authorities was to minimize the legal representation of the prisoners at Guantanamo Bay. David Luban, citing reports from lawyers who sought to aid them, says the difficulties they faced “include policies designed to reduce their access to their clients; policies that create knotty ethical difficulties for military commission defense lawyers, particularly lawyers in the

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uniformed armed services; and practices that, in the words of one lawyer, ‘are designed to drive a wedge between lawyers and their clients.’”61 He adds that “the effect of all these attacks—and the explicit purpose of at least some—was to win legal battles by eliminating or hobbling the advocates on the other side rather than by offering better arguments.”62 The combination of designating the prisoners as military rather than civilian and detaining them at Guantanamo Bay arguably gave U.S. authorities the greatest possible leeway in using lawfare as a means of pursuing their aims. The choice of Guantanamo Bay must also be viewed as a reflection of a broader theme in U.S. law involving the perceptions of territoriality with respect to its legal system. Raustiala, writing about geography as a determinant of the rights of individuals under U.S. law, notes how these rights can vary depending on whether or not an individual is a U.S. citizen or is within U.S. sovereign territory: A century ago, when Guantanamo was first acquired by the United States, Westphalian territoriality was relatively robust. Exceptions existed, but they were limited. Today, Westphalian territoriality persists in many areas, but both constitutional doctrine and statutory interpretation evidence a marked transformation in legal spatiality. Territorial location is no longer a bar to constitutional protections for American citizens. And it is now routine for U.S. statutes to apply to actions that occur entirely abroad, as long as these actions have effects in the United States. These changes illustrate how legal doctrine can evolve to accommodate exogenous changes in content. Yet this transformation in legal spatiality is decidedly partial. American courts maintain and occasionally deploy a presumption against extraterritoriality when interpreting statutes. Insular possessions and other “anomalous zones” are constitutionally distinct from the fifty states. And aliens . . . continue to face geographic limits to their legal rights. No one seriously argues that the reach of domestic law ought to be coterminous with the territorial borders of the sovereign. The implications are far too radical and frequently unsustainable—as conflicts scholars in the United States long ago recognized. But while the norm of Westphalian territoriality has endured, in practice, Westphalian territoriality is increasingly compromised and anachronistic, and lacks a coherent underlying theory to justify its continued use as a conclusive jurisdictional principle. There is wide variation in the treatment of legal spatiality, and this variation sometimes rests on pragmatic principles. But it frequently rests on little more than accidents of history and sheer inertia, since the doctrine has evolved in a haphazard and under-theorized manner over many decades. The rarity of cases addressing geographical location leads to a bumpy doctrinal path at best, schizophrenia at worst.63

The piecemeal development of the U.S. legal system’s jurisdiction at Guantanamo Bay, a direct function of how legislators and courts have

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interpreted the territory’s leased status, is arguably the best illustration of this. Whereas it may not have entered directly into the deliberations about where to put the detention center for captured terrorism suspects, it was certainly an important underlying factor. The combination of exclusive U.S control and jurisdictional gaps gave Guantanamo Bay an edge over the other choices, and, as events later showed, it would be vigorously used. Habeas Corpus and Extraterritoriality Habeas corpus rights have been a central theme of the jurisdictional issues that have arisen in regard to the Guantanamo Bay detainees. It is worth noting that the link between these rights and their territorial reach is a matter that arose hundreds of years ago, as the history of these rights formed part of the Boumediene v Bush case. The concept of habeas corpus, like many notions that contributed to the values embodied in the U.S. legal system, traveled to the U.S. from England, where it was applied as early as the twelfth century.64 The idea of preventing prisoners from exercising habeas corpus rights on territorial grounds is also not new, as recounted by Lord Steyn: In harsher times England resorted to the expedient of sending prisoners beyond the reach of the rule of law. One of the charges made against Edward Hyde, the First Earl of Clarendon, in his impeachment in 1667 was that he had attempted to preclude habeas corpus by sending persons to “remote islands, garrisons, and other places, thereby to prevent them from the benefit of the law,” that is, by sending persons to places where the writ of habeas corpus would not be available.65

The influential Habeas Corpus Act of 167966 sought to stop this practice by banning the detention of prisoners outside the territory where jurisdiction was comprehensive and unquestioned. Article XI of the Act reads in part: And for preventing illegall Imprisonments in Prisons beyond the Seas noe Subject of this Realme that now is or hereafter shall be an Inhabitant or Resiant of this Kingdome of England Dominion of Wales or Towne of Berwicke upon Tweede shall or may be sent Prisoner into Scotland Ireland Jersey Gaurnsey Tangeir or into any Parts Garrisons Islands or Places beyond the Seas which are or at any time hereafter shall be within or without the Dominions of His Majestie His Heires or Successors and that every such Imprisonment is hereby enacted and adjudged to be illegall. . . . 67

The Act made it clear that putting prisoners outside the territorial reach of habeas corpus was considered abusive on the part of authorities. Their

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efforts to avoid such writs, it said, were “contrary to their Duty and the knowne Lawes of the Land whereby many of the Kings Subjects have beene and hereafter may be long detained in Prison.”68 Although the Act ensured that prisoners could challenge their detention, its coverage did not encompass those who were not subjects of the realm, a fact reinforced by the habeas corpus rights being made contingent on residency in the kingdom.69 By contrast, habeas corpus rights in the United States do apply to aliens on U.S. territory—but the leased status of Guantanamo Bay provided an opportunity to weigh the territorial coverage of these rights through the court rulings that refined its legal relationship with sovereign U.S. territory. The influence of the Habeas Corpus Act was reinforced by England’s power as a state in the seventeenth century. Now, more than 300 years later, another powerful state had revived the practice of deliberately housing prisoners in a location deemed to be outside the territorial scope of its legal system. With Guantanamo Bay, the jurisdictional questions spawned by the lease and resolved by the courts had created an opening for the United States to assert the legal validity of barring the post-9/11 detainees there from having habeas corpus rights. It was not until the Supreme Court’s ruling in Boumediene v Bush that the matter finally seemed resolved, with the spirit of the Habeas Corpus Act restored.

CHAPTER 9 THE LEASE IN U.S.-CUBAN RELATIONS TERRITORIAL LEASES IN INTERNATIONAL RELATIONS Leases as Catalysts Territorial leases often become catalysts in the improvement of bilateral relations between the states that create them. The successful negotiation of a lease indicates a level of trust that allows the states to put into play a fundamental element of their existence—territory—with a realignment of sovereign rights and a view toward ongoing future cooperation.1 The lease becomes a joint project that the lessor and the lessee agree to pursue together for its duration, often an extended period. Yet a lease also can be a catalyst for problems to arise by creating a separate territorial space for activities and issues in which both states have a stake. Such problems may reflect, among other things, how the lease came about, how its terms are interpreted, or how rights on the territory are exercised. If we view the Guantanamo Bay lease strictly in relation to the objectives that existed when it was created in 1903, we can assess the arrangement as effective. The United States secured rights on a territory that it initially used for a number of years for the purposes it intended, as a coaling and naval station, while Cuba accomplished its main goal as well, which was to solidify its position as an independent state by honoring its Platt Amendment commitments. Because of U.S. disinterest in Bah´ıa Honda, Cuba even exceeded its aim of limiting the number of sites on its territory where the United States had coaling and naval stations—the United States had wanted four, agreed to two, and finally ended up with one. Yet the lease’s frequently negative impact on U.S.-Cuban relations clouded its technical success. In the early decades of the lease, Cuba’s rancor at having to accept the Platt Amendment in exchange for independence remained a dominant theme in their bilateral dealings. The periodic interventions by U.S. military forces were brief events, but they made it hard for the ill will among Cubans regarding the Platt Amendment to

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diminish, and Guantanamo Bay was an ever-visible reminder of it. Later, actions by the U.S. and Cuban governments relative to the lease’s terms inflamed anti-U.S. sentiment among Cuban insurgents before they ousted the government at the start of 1959, putting Guantanamo Bay at the center of what nearly became a military confrontation between the United States and the rebels. Since the 1959 revolution, Cuba’s inability under the lease to evict the United States as an unwanted tenant has been an ongoing issue in the hostile relations between the states.2 As with any territorial lease, the Guantanamo Bay arrangement set parameters for the behavior of the lessor and lessee states toward the territory involved. Such parameters can be considered “virtual boundaries” that define the legal limits of how each state may act within the physical boundaries that define the geographical space of the leased territory. These virtual boundaries function much like the physical ones and can also generate issues for the states involved. They must be recognized by both states, can be breached either accidentally or intentionally with varying degrees of severity, and can prompt reactions by one state when it detects a violation by the other. As we have seen with Guantanamo Bay, even no reaction can have consequences: the absence of Cuban protests against the progressive expansion of U.S. activities on the territory through the 1950s essentially allowed the United States to use Guantanamo Bay as it wished, including for operations that were unrelated to those authorized by the lease’s terms. This highlights the main difference between virtual boundaries and physical ones: virtual boundaries may be stretched. When both states involved in a territorial lease accept a behavioral breach by one of them, the virtual boundary shifts to accommodate the new situation created by the breach. This revised status quo becomes the starting point for any further changes in state behavior, and its very acceptance fosters a climate in which future breaches may occur. Each stretching of the virtual boundary may be small in itself, raising questions about whether it is a true violation,3 but cumulatively they may bring behavior to a point where it stops resembling what the states had originally agreed on. Over time, it became evident that the United States found that some specific terms of the Guantanamo Bay lease did not match its evolving interests, even though the lease gave the United States what it wanted in a general sense. Cuba, it seems, was prepared to accept loose U.S. interpretations of the lease’s terms and even breaches of the arrangement as long as it considered the results to be minor relative to the importance of other factors in their overall bilateral relations. The way a lease can enhance or erode relations between the lessor and the lessee states derives largely from the precision of its terms in allocating rights and competences between them and from the flexibility of the lease to adapt to new circumstances that may arise for one or both states. These

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factors reflect the quality of the lease itself as a product of diplomacy that requires expertise, creativity, and foresight. A lack of precision in a territorial lease can cause a virtual boundary to become a “gray area” for behavior where determinations must be made about how the lease divides the states’ respective rights and obligations. By the same token, very precise terms may be incompatible with the intertemporal flexibility that is necessary to allow a territorial lease to adapt to the states’ evolving situations. Sometimes these problems can be overcome through subsequent bilateral agreements, as they were in 1921 when the United States and Cuba agreed to allow private-sector communications cables to be laid at Guantanamo Bay. The terms of a lease also shape the ways the states interact with each other vis-`a-vis the territory. The reallocation of sovereign rights creates the basic framework for sharing the leased area, and putting this into practice can require cooperation and coordination. The compensation aspect typically results in some kind of arrangement for handling practical matters such as rent payments. The duration of a lease can influence the type of administrative process that is put in place for the bilateral management of questions that arise from it. A lease that transfers comprehensive rights to the lessee state may require less intense or less frequent interaction between the lessor and lessee than leases in which each state retains a significant role on the territory. These situations, too, can be either positive or negative for their bilateral relations. With the Guantanamo Bay lease, Cuba transferred the complete scope of its jurisdictional rights to the United States and gave up an active role on the territory, despite retaining sovereignty. This removed the need for most types of ongoing cooperation that a lease can promote between the lessor and lessee states and raised the prospect of new bilateral problems to develop regarding the undefined nature of Cuba’s “ultimate sovereignty” at Guantanamo Bay. The U.S. case of Gherebi v Bush showed how close those problems may be to surfacing by bringing out two distinct ways that “ultimate sovereignty” can be defined, and by leading the Ninth Circuit Court of Appeals to rule that the actual sovereign over Guantanamo Bay was not Cuba but the United States. A lease thus creates additional dynamics between the states through a territory in which they both have a legal association and injects itself into their bilateral relations by its very presence. THE LEASE BEFORE CUBA’S REVOLUTION The Platt Amendment Years From the moment of Cuba’s independence in 1902, relations between the United States and Cuba were tenuous, as the United States was openly

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reluctant to completely let go of Cuba in view of the prospects for further social and political instability on the island just as economic ties between the two states were poised to become increasingly vital for both. As summed up by Louis A. P´erez, Jr., bilateral relations “tended to reflect accurately the anomalous constraints under which the republic was created.”4 The sense of coercion that was felt within Cuba when it accepted the Platt Amendment in return for its independence persisted in varying degrees until the 1934 treaty eliminated most of the Amendment’s provisions. Although the worst aspect from the Cubans’ perspective was the right it gave the United States to intervene on their sovereign territory, the lease of Guantanamo Bay5 was a secondary irritant that was closely linked to it by its role in facilitating the U.S. interventions. Cuba’s domestic political scene had already been marked by decades of popular uprisings against poor leadership, and the fact that Cuba’s government was now accepting U.S. rent payments for a site where these interventions could be launched had the potential to perpetuate antigovernment sentiment— making the lease a factor in the very instability the interventions were meant to contain. The United States exercised its right to intervene on several occasions. An insurrection in Cuba in 1906 prompted the United States to send a force of Marines to the island to quell it, and U.S. troops were dispatched to Cuba again in 1912 when the government faced a violent uprising by the Independent Colored Party.6 In 1917 U.S. Marines were used for suppressing labor unrest in eastern Cuba, and in 1919 six thousand Marines were mobilized for duty in Cuba during a general strike that was causing serious financial losses for U.S. sugar industry interests.7 In one last move, the United States sent warships to Cuba in September 1933 after the island’s government was overthrown in another insurrection,8 although troops did not disembark and the United States maintained that the action was preventive, to protect U.S. citizens in Cuba and “with no possible question of the slightest interference with internal affairs of Cuba.”9 Despite the regularity of popular uprisings and government overthrows that occurred during these decades, it was a period in which U.S. and Cuban economic ties grew substantially stronger. Large amounts of property in Cuba were acquired by U.S. investors, including a number of plantations and refineries in the sugar sector, which remained Cuba’s main industry. For the United States, these strengthening economic relations meant it had major interests to protect in Cuba, and for Cuba they solidified the island’s dependence on the United States as both a source of investment and a market for its exports, primarily sugar. These links grew stronger not only in real terms but also in relative terms. Cuba’s dislike for the Platt Amendment gave its early leaders reason to seek stronger commercial ties with Great Britain and other

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European countries as a way to diminish the dominance of U.S. political and economic influence. This caused the United States to behave toward Cuba in ways that would reinforce its own influence, having determined that “any agreement . . . that grants Great Britain most favored nation treatment or any commercial concessions whatever in the Cuban market will be most unsatisfactory to the United States.”10 Although there is no evidence of a direct link between this attitude and U.S. preparations to expand its activities at Guantanamo Bay, the U.S. concerns did create a climate in which an expansion would be useful in reminding Cuba and other states that the United States would act to protect its interests. U.S.-Cuban relations were never more than intermittently harmonious in the first few decades of the new state’s existence as disputes flared up and waned over U.S. import tariffs, fixed prices, and import quotas for sugar. This commodity was not the only element of Cuba’s economy, but it was consistently the most vital, and it became even more so during World War I as European sugar output plunged, world sugar prices rose, and heavy U.S. investment flowed into the Cuban sugar industry.11 With the Platt Amendment ensuring the means by which the United States could protect these interests, there was persistent concern within Cuba about the expanding U.S. control of its economy.12 Throughout these decades, Guantanamo Bay symbolized this U.S. influence in the most profound way, giving Cubans pause to question their nation’s very ability to control its own territory against U.S. designs on it. As U.S. investors broadened their inroads into strategic sectors of the Cuban economy, the increasingly intricate structure of the U.S. presence grew as an issue. “These circumstances profoundly influenced the character of Cuban nationalism. To all the other sources that propelled the Cuban quest for nationality in the nineteenth century was added a deepening hostility toward the United States in the twentieth. Many believed that national self-fulfillment could be attained only by ending the North American hold over Cuba, past and present, at its sources, and in all its forms,” P´erez writes.13 Even so, by the 1920s enough time had passed for some Cuban political leaders to view the Platt Amendment as less negative than it had appeared two decades earlier, when they had initially assessed it as limiting the new state’s ability to fully participate in the community of nations. It “allowed the Cuban Republic to consolidate its liberty, its independence and its sovereignty” while also permitting Cuba to participate “with increasing effectiveness in international relations,” according to a leader of the Cuban Senate.14 Yet as Cuba increasingly found its footing as a state, and as the frequency of U.S. military interventions on its territory decreased, the lease of Guantanamo Bay (and of Bah´ıa Honda, even though it was not developed as a military site) came to be considered the most prominent restraint

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on Cuba’s ability to achieve greater de facto independence from the United States. Machado y Ortega noted that the Platt Amendment did not necessarily conflict with the existence of Cuban sovereignty, but “the coaling stations nonetheless could become a serious danger to our independence” by offering the United States bases of operations for the use of force on the island. Because Guantanamo Bay and Bah´ıa Honda were leased, they were legally linked to both the United States and Cuba at the same time, and there were fears that the arrangement could draw Cuba into wars in which it would otherwise have no involvement. “Because these zones constitute in reality American territory during the period of the lease, we Cubans can’t extricate ourselves from any armed conflict between the U.S. and another state, now that not only our enviable strategic position will be desired by enemies [of the U.S.] but also our own territory would be partly American territory and Cubans will be forced to see us maintain it by allying with the United States, no matter who is its adversary, without it being possible for us to determine if the cause is just or convenient for our own national interests,” Machado y Ortega wrote.15 Cuban Insecurity—and Security The sense of insecurity that the leasing arrangement created for Cuba was an integral part of the context for its ongoing relations with the United States. Yet Cuba was simultaneously tolerating the progressive broadening of U.S. activities at Guantanamo Bay to include operations that exceeded those allowed by the lease. This might seem contradictory until one considers the strategic implications of being drawn into joining the U.S. side of any conflict: a stronger U.S. presence at Guantanamo Bay would be a deterrent to potential attacks on Cuba itself. As a state that was small, still relatively new, and legally obliged to maintain the leasing arrangement it had with a much more powerful state, Cuba acted pragmatically in looking the other way as the United States overstepped the terms of the lease and shaped Guantanamo Bay into something different than either state had envisioned in 1903. Cuban leaders realized they had no means of applying military pressure on the United States and little chance of rolling back unwanted actions through international legal channels; this had become became evident amid the U.S. military interventions under the Platt Amendment, to which Cuba acquiesced despite disagreeing with the United States about their necessity.16 Cuba was clearly aware of its important geographic location—“the most important strategic position in the entire continent,” Machado y Ortega called it.17 The implied prospects for enhanced protection from other states that Cuba would get in return for a more comprehensive U.S.

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military presence at Guantanamo Bay meant that tolerating the additional U.S. activities did have a positive aspect—even if it also restored, unofficially, an element of the protectorate relationship that the United States had with Cuba before making Cuba independent. The expansion of U.S. military operations at Guantanamo Bay accelerated in this atmosphere in the late 1930s as the prospects for another world war developed. The formal reclassification of the facility in 1941 from a naval station to a naval operating base marked the first time the United States openly acknowledged that its activity at Guantanamo Bay, as defined in its own terms, no longer complied with the restrictions in the lease. Conditions throughout the 1930s had been ripe for positioning the United States to take such a step with minimal risk of any legal challenge by Cuba. The rapid conclusion of the 1934 treaty that reaffirmed the Guantanamo Bay lease occurred as the two states were entering a prolonged period of particularly good relations.18 The United States had already adopted a “good neighbor” policy toward Latin America that included a drive toward improved ties with states throughout the region, and Cuba was unusually well situated for this enhancement: a strongly pro–United States military sergeant, Fulgencio Batista, whose support from the United States was equally firm, had assumed power in a 1933 coup and effectively led the Cuban government directly or indirectly—including twice as its president—through the majority of the period until the 1959 revolution. At the same time, the relative political and military strengths of both states remained a highly important underlying factor in their relations. It provided the context for the United States to sense that its room to maneuver at Guantanamo Bay was greater than the lease allowed and to act accordingly time and again over many years—a situation that has continued to the present, as noted by U.S. Judge Susan P. Graber of the Ninth Circuit Court in her dissent in Gherebi v Bush: The fact that Cuba lacks the political or military might necessary to hold the United States responsible for breaching the Lease does not mean that the United States has not breached the Lease or that the Lease has ceased to exist. The ability to violate terms of an agreement with impunity does not render a party legally free to ignore the agreement. It means only that the party in breach is spared the practical consequences of its improper acts.19

Although the Guantanamo Bay lease persisted long after the Platt Amendment’s other provisions were eliminated in 1934, its continued existence was not sufficient to cause relations between the United States and Cuba to deteriorate as long as Cuba was governed by leaders who were generally compliant with U.S. wishes. The further expansion of U.S.

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activities at Guantanamo Bay did not pose a significant problem for them, and in this positive climate another reclassification of Guantanamo Bay into a full-fledged naval base occurred in 1952 to acknowledge the additional broadening of its operations. As a domestic insurgency developed against the Batista-led Cuban government in the 1950s, the United States supplied Batista’s armed forces with weapons and support, and it was reported that Guantanamo Bay was used for this activity in both 1957 and 1958.20 Although the United States became disillusioned with Batista and decided to stop the flow of weapons in March 1958,21 Cuban rebel leaders reported that Guantanamo Bay was still being used by the United States later that year to supply Batista’s forces with bombs that Cuban military aircraft were dropping in attacks against the insurgents.22 This prompted a rebel unit under the leadership ´ Castro to kidnap a group of twenty-nine U.S. military personnel of Raul stationed at Guantanamo Bay as they traveled outside the base.23 The incident nearly led to an armed confrontation between U.S. forces and the rebels, as U.S. military leaders wanted to free the hostages by force24 but were dissuaded through the efforts of the undersecretary of state for interAmerican affairs, Roy Rubottom.25 The episode demonstrated the readiness of the Cuban rebels to directly confront the United States regarding its activities at Guantanamo Bay. It was an early warning that if they succeeded in assuming power, they would view the continued U.S. presence on the territory as a serious problem. THE LEASE SINCE CUBA’S REVOLUTION A Catalyst for Discord After the rebels’ victory and the Cuban revolution at the start of 1959, the lease of Guantanamo Bay contributed to the sharp deterioration that occurred in U.S.-Cuban relations. The belief that the United States was using Guantanamo Bay to supply arms to Batista made it logical for the new Cuban government to be wary of U.S. behavior toward Cuba more generally. This distrust of the United States was something Cuba shared with another state, the Soviet Union, forming part of the common ground that facilitated the alliance between Cuba and the Soviets that would plague U.S.-Cuban relations throughout the Cold War years and beyond. Once in power, Fidel Castro’s administration initially pledged to abide by Cuba’s existing international treaty commitments.26 This statement was broadly taken as reassurance that it would honor all treaties then in force, but the Guantanamo Bay lease was an anomaly that became increasingly at odds with the direction that the government was establishing for Cuba. In early March 1959 a former political opponent of Batista,

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´ Grau San Mart´ın,27 who served as Cuban president from 1944 to Ramon 1948, injected Guantanamo Bay into the solidifying Cuban position when he called on the United States to give up the territory.28 After Cuba became allied with the Soviet Union, the lease took on new strategic and symbolic importance for the United States—it was the only legal instrument that allowed it to maintain a military installation on the sovereign territory of any of the Communist states that were its Cold War adversaries. Faced with this opportunity, the United States deviated from a de facto policy of refraining from having military bases in states opposed to hosting them,29 and it kept Guantanamo Bay despite subsequently closing other bases in states where they had once been welcome but where political sentiment had turned against the continuation of the bases’ presence.30 Cuba naturally considered the U.S. refusal to leave Guantanamo Bay to be a threat to its national security.31 Its inability to unilaterally oust the United States from the territory under the terms of the lease became part of the rhetoric that the Cuban government has employed until the present, coupled with publicly voiced protests that the United States has used the territory on many occasions to violate international law. In January 1962, during the period between the Bay of Pigs invasion and the Missile Crisis, the Cuban government lodged a formal protest with the United States, alleging that aircraft flying from Guantanamo Bay had violated Cuban airspace on many occasions.32 In March and April of that year, it filed additional protests against provocations by U.S. troops at the base.33 And, as we have seen, during the Missile Crisis itself the future of Guantanamo Bay became a bargaining chip in the negotiations among the United States, Cuba, and the Soviet Union. As early as 1961, Cuba alleged that its civilians working at or near Guantanamo Bay were being tortured by U.S. troops stationed there.34 Miranda Bravo later wrote that “all sorts of aggressions have emanated from the Naval Base: the violation of Cuban territorial waters and airspace, insults, provocations, shots (and) assassinations of members of our military and of Cuban workers employed at the Base.”35 Records kept by Cuba showed that between 1962 and 1996, U.S. personnel at Guantanamo Bay were involved in 610 land territory violations, 6,345 airspace violations, and 1,333 territorial water violations, plus 5,202 other provocations ranging from shooting and throwing objects into Cuba to verbal insults.36 The United States likewise reported incidents of provocations by Cuban military personnel stationed near the base, citing episodes of Cuban soldiers throwing rocks and using slingshots in the years following the Missile Crisis.37 Although such reports have diminished sharply in recent years, the accusations were continuing in 2007, when Castro wrote that “since January

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1st, 1959, the United States turned the usurped territory of the Guantanamo Naval Base into a permanent source of threats, provocation and violation of Cuba’s sovereignty, with the aim of creating trouble for the victorious revolutionary process. Said Base has always been present in the plans and operations conceived by Washington to overthrow the Revolutionary Government.”38 Among the lease’s early benefits for bilateral relations were the practical arrangements between the United States and Cuba that included the employment of Cuban nationals at Guantanamo Bay and the supply of Cuban water to the territory, but these arrangements also had the potential to create problems, and after the 1959 revolution they did. Cuba accused U.S. authorities of maintaining what was essentially a black market in Cuban pesos for the Cubans who were earning U.S. dollars for their work at the base, undermining attempts by Cuban monetary authorities to ensure the peso’s financial integrity.39 Meanwhile, in a celebrated 1964 incident, Cuba’s government shut off water supplies to Guantanamo Bay in retaliation for what it asserted was the illegal detention of Cuban fishermen in waters off the coast of Florida40 ; this prompted the United States to build a desalination infrastructure at Guantanamo Bay that allowed the territory to become self-sufficient in drinking water.41 The U.S. use of Guantanamo Bay for housing Cuban asylum seekers in 1994 became another point of contention between the two states, as seen in a news conference that Cuban President Castro held with foreign journalists at the time: Reporter: Commander, you mentioned that sending Cubans to Guantanamo violates the Guantanamo Bay Naval Base agreements. Will Cuba use this argument at some point in time? Castro: We mentioned that this was just one of the problems, during a review of the situation. I said today that there is a positive aspect to Clinton’s decision: They have spoken of measures to discourage these emigrations for the first time. We do not agree with how he said it or with the fact that the base is being used. This just complicates the problem. It does not benefit the United States to use that base for that purpose. We are not pleased with this. We do not know [word indistinct], but this is not the main problem.42

Cuba’s current constitution, which dates from 1976 with some modifications, addresses the continued U.S. presence at Guantanamo Bay with a clause that relieves Cuba from any obligation to comply with what it considers unequal treaties that were entered into by previous governments. This clause, however, has had no practical effect on U.S.-Cuban relations because the terms of the lease rendered it largely meaningless: Cuba’s primary obligations were one-time and front-end, and once the territory was

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supplied to the United States, there was very little for Cuba to do on an ongoing basis to comply with the lease except return the occasional fugitive from justice. Even this obligation became moot during the Cold War, when options for crossing between Guantanamo Bay and the rest of Cuba all but disappeared as the partly deteriorated boundary fence was restored,43 official crossings were narrowed to a single site (the Northeast Gate),44 and tens of thousands of mines were planted on both sides of the fence.45 Because the lease removed Cuban jurisdiction and control over the territory, Cuba effectively remains in compliance with it by doing nothing—or at least by not initiating military or legal actions to terminate the U.S. presence there, despite consistently holding the position since 1959 that the United States occupies the territory illegally. After the United States began detaining terrorism suspects at Guantanamo Bay, Cuba pledged to return any prisoners who might escape,46 although this promise was made with the certainty that it would never have to be carried out: a prisoner would have to escape twice to reach Cuba, once from the highly guarded prison camp into the surrounding part of Guantanamo Bay, and then from the leased territory itself.47 It is understandable why Cuba has refrained from using military force to recover Guantanamo Bay, but the fact that it has never initiated any legal action against the United States to secure its return is somewhat puzzling, given the chance for Cuba to benefit from a tribunal or arbitration procedure. There might be political risks, but the legal risk would be nil because an unfavorable judgment would simply reaffirm the status quo. Yet in 2000 the Cuban government actually adopted a formal policy of not pressing for the return of Guantanamo Bay. It has not detailed the rationale for doing this, but said in 2002 that the issue of the lease was a minor one that did not warrant priority: A basic principle of Cuba’s policy toward this bizarre and potentially dangerous problem between Cuba and the United States, which is decades long, has been to avoid that our claim would become a major issue, not even a specially important issue, among the multiple and grave differences existing between the two nations. In the Oath of Baragu´a48 presented on February 19, 2000, the issue of the Guant´anamo base is dealt with in the last point and formulated in the following way: “In due course, since it is not our main objective at this time, although it is our people’s right and one that we shall never renounce, the illegally occupied territory of Guant´anamo should be returned to Cuba!”49

This stance does, nonetheless, reinforce the notion that Cuba is taking a pragmatic approach to its dispute with the United States over the Guantanamo Bay lease. Given the relative situation of power between the two

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states, the Cuban government recognizes that as long as the United States opposes it on the matter, there is little likelihood of dislodging it from the territory. Even if Cuba were to pursue a legal judgment against the United States, some scenarios could entail political risks—losing the case, for example, or winning it but finding that the United States refuses to honor the judgment and remains at Guantanamo Bay. Either outcome could make the Cuban government appear weaker, whereas it now appears wary but prudent. A Catalyst for Cooperation Over time, the Guantanamo Bay lease came to have a limited positive influence on bilateral relations, as the unusual territorial situation it created allowed scattered areas of cooperation to emerge between the United States and Cuba. When the two states broke off diplomatic relations in January 1961, the lease prevented a permanent, absolute severance of direct communication by leaving them with a territory to which both were legally connected—an entity around which communication and confidence building could, and did, emerge. Although Guantanamo Bay was not the only facility to offer this possibility, its existence made it the most obvious one, particularly for issues that involved the territory itself. The flood of Haitian and Cuban asylum seekers who were brought to the base in the 1990s, for example, led the two states to initiate regular talks among senior U.S. and Cuban military personnel on matters of mutual interest.50 In this context, cooperation began to develop amid the deep differences that still separated the U.S. and Cuban governments. “Such circumstances contributed to an improvement of the atmosphere there and to authorized, albeit minimal, contacts that were indispensable to those in positions of responsibility on both sides of the base area. Consequently, what prevails there today is not what could be described as an atmosphere of hostility or war,” according to the Cuban Ministry of Foreign Affairs.51 This led the United States to advise Cuba in advance about two major developments involving the leased territory for the first time: the plan to transport people fleeing Kosovo to Guantanamo Bay in 1999, which was never implemented but prompted Cuba to offer medical or other services to the Kosovars if needed; and the decision to transport detainees from Afghanistan to Guantanamo Bay in January 2002. “We shall not set any obstacles to the development of the operation,” the Cuban government stated as the Afghan detainees began arriving. “Having been apprised of the operation and aware of the fact that it demands a considerable movement of personnel and means of air transportation, the Cuban authorities will keep in contact with the personnel at the American naval base to adopt such measures as may be deemed convenient to avoid

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the risk of accidents that might put in jeopardy the lives of the personnel thus transported.”52 This was a considerable step forward in bilateral relations. Although a U.S. Interests Section has existed in Havana and a Cuban Interests Section has existed in Washington under the legal auspices of the Swiss government since the 1970s,53 these are mainly consular offices. Direct bilateral talks between the United States and Cuba had been rare since 1959 and oriented toward single issues of concern; in 1988, for example, the only discussions in progress between the states involved “radio matters” such as Cuban interference with U.S. transmissions.54 Even today, the regular meetings at the boundary separating Guantanamo Bay from the rest of Cuba are the only structured forum for direct ongoing contacts between U.S. and Cuban officials. The talks, involving small groups of military and diplomatic personnel from each state, focus on issues related to the leased territory and its immediate surroundings and have been described as “a vital forum for averting misunderstandings that could lead to disaster.”55 Matters discussed have ranged from advance notice of unusual events at the naval station such as a ceremonial twenty-one-gun salute, to concerns about public health issues arising from local diseases.56 The bilateral cooperation arising from Guantanamo Bay in the mid1990s also included the establishment of a safe flying corridor over Cuban airspace for planes landing at the base, as the use by the United States of more modern aircraft created a need for changes in the route.57 During the late 1990s the United States unilaterally removed mines it had placed on parts of the base to prevent infiltrators from entering58 —a concrete sign that bilateral relations were improving, at least among officials concerned with the leased territory. In 2001 the commanders of Guantanamo Bay and the Cuban border troops stationed around it led groups that made reciprocal visits to hospital facilities at the naval base and in the nearby city of Guant´anamo, Cuba, to inspect the facilities available under an agreement for mutual assistance in the event of a natural disaster or fire. The United States calls this “an example of the positive working relationship the two military forces have developed in recent years.”59 According to Melanie M. Ziegler, “advance notification of military exercises, the granting of more airspace to U.S. planes, the regular meetings between U.S. and Cuban officers to discuss practical matters relating to base operations, and the Cuban government’s offer of medical assistance to the Kosovar refugees60 were all small steps that succeeded in reducing tensions” in the absence of any formal political agreements between the United States and Cuba regarding Guantanamo Bay. She refers to them as “remarkable achievements” in view of the long and contentious history surrounding the base.61 This type of limited cooperation continued when

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the United States decided to use Guantanamo Bay as the detention center for the prisoners it captured in its fight against terrorism. The United States admits that although relations between local U.S. and Cuban military troops may have improved, they do not necessarily coincide with the broader relations between the two states. Indeed, it must be remembered that Guantanamo Bay remains the most likely flashpoint for any violent conflict that might break out because it is the one location where both U.S. and Cuban armed forces are present on an ongoing basis. Nonetheless, the scattered improvement in local and state-level relations shows how the creation of a territorial entity like Guantanamo Bay offers a location from which broader change can emanate. As solutions sometimes are found first where problems are most numerous, Guantanamo Bay’s role in enhancing some elements of the U.S.-Cuban relationship is no accident. Its status as a leased territory certainly contributed to the poor relationship between the two states, but it has also spawned opportunities for them to cooperate in ways that range from symbolic to substantive, eroding the barrier that results from the absence of diplomatic ties.

CHAPTER 10 THE FUTURE OF THE GUANTANAMO BAY LEASE THE LEGAL ARGUMENTS PRESENTED Cuba’s Arguments for Ending the Lease Although Cuba has not initiated any formal proceedings to terminate the lease of Guantanamo Bay, its post-revolution government did make at least some preparations toward bringing a case against the United States by identifying four potential legal arguments. It appears that Cuba has never sought arbitration on the matter and has never accepted compulsory jurisdiction of the International Court of Justice, the logical tribunal for adjudicating such issues, so these legal options may have been developed as a contingency for possible future arbitration or a change in policy on the court’s jurisdiction. The arguments, published in 1970 and presented below, are not mutually compatible. This signals that Cuba did not intend to incorporate them all into a single, strong assertion, and also that Cuba had not settled on a specific legal course to pursue more than a decade after deciding it wanted the United States to leave Guantanamo Bay. Governments typically deliberate on such matters confidentially, but Cuba publicly disseminated its perceived options, a curious decision until one examines the circumstances: they were elaborated in a book produced by the Ministry of Foreign Affairs for distribution abroad,1 indicating that an objective was to influence opinion in other states and/or elicit foreign reactions in weighing which option (or options) had the most promise—information that could be politically valuable for Cuba in conducting its foreign relations in addition to having legal value in a possible challenge. Also, the publication was not a technical legal document but was geared for a general audience and appeared at a time when the United States and Cuba were actively denouncing each other in international settings. These suggest that the political motive weighed heavily in the effort.

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In the event, it provided the most complete details publicly available of Cuba’s potential plans for opposing the lease in a legal process. In doing so, Cuba ruled out an imminent legal challenge but reserved the right to launch one in the future, saying that “it will appeal, at the time it believes proper, against this illegal occupation to the pertinent international organisms.”2 That still had not occurred as of this writing, although Cuba has consistently maintained in diplomatic and public statements that the U.S. presence at Guantanamo Bay is unlawful. The legal choices it identified are as follows: Option 1. This argument asserts that the lease is void for various reasons associated with its fundamental nature. It is based on several foundations—the principle of territorial integrity, the claim elaborated since 1959 that the lease is perpetual, and the contention that after a certain point the very reason for the lease had disappeared. The first part of the argument holds that when Cuba’s government agreed to the lease in 1903, it overstepped its constitutional authority by giving up part of the state’s territory in perpetuity and disguising this action as a lease. “In keeping with our constitutional law, sovereignty belongs to the nation, no executive being authorized to enter into, or ratify, pacts or treaties, that in any way limit or undermine national sovereignty or territorial integrity,” it asserts.3 It notes that the object of the lease, “that which must be given,” is required to be both legal and possible, and that by violating the Cuban constitution it was not legal.4 Another part of this argument claims that the lease is void because voluntary consent was required but was absent when it was concluded in the context of Cuba’s acceptance of the Platt Amendment. “There is violence . . . when in order to acquire consent an irresistible force is used. There is intimidation (moral violence) when one of the contracting parties is filled with the rational and founded fear that he is going to suffer an imminent and serious injury to his person or property,” according to this position.5 A further assertion is that the lease is invalid because the reason for it has ceased to exist. It notes that the lease’s original purpose, as stated in the Platt Amendment, was “to enable the United States to maintain the independence of Cuba, and to protect the people thereof, as well as for its own defense,” and that the 1934 treaty reaffirmed the lease with a completely different motive—a “desire to fortify the relations of friendship between the two countries, and modify with this purpose, the relations established between them by the Treaty of Relations signed at Havana, 22 May 1903.”6 With neither purpose still intact, it concludes: “There is no doubt that the contract today lacks a reason and, therefore . . . it finds itself absolutely nullified.”7

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Option 2. This argument is based on the territoire-objet theory of the relationship between state and territory and a combination of international and municipal law. Like the first argument, it characterizes the lease’s duration as perpetual in the context of considering it to be a property contract with private-law characteristics. It is the one argument that hones in on the repeated U.S. overstepping of the lease’s terms, alluding to their cumulative impact. It asserts that Cuba, by retaining absolute sovereignty over Guantanamo Bay, retained “political sovereignty and the right of property, since it only granted the use and enjoyment of that property,” and thus “the contract should be ruled by the national law of the lessor.”8 The argument notes that Cuban municipal law considers a lease to be temporary by nature, and that perpetuity is incompatible with a leasing contract because it presents “a legally insurmountable obstacle that bars a proprietor from ever recovering the possession and direct use of the thing that is given up.”9 The argument further states that that the lessee “must devote the thing leased to the agreed-upon use” and notes that even if Cuba’s consent to lease the territory was coerced, “it was on this point that consent was given and its consideration was what determined the formation of the reason for the contract.” The argument recalls that since the Cuban revolution, “the use of the thing has been altered substantially,” and that under Cuban law the lessor can seek to terminate the contract and claim damages and losses.10 An internal contradiction in this argument is that it considers the lease invalid for having a perpetual term, while other terms of the lease that restrict the U.S. uses of the territory are considered valid insofar as they provide grounds for termination. Option 3. This is the argument that international jurists consider the most likely one for Cuba to make in a legal forum—the principle of rebus sic stantibus. In contrast to the first two options, it requires an assumption that the lease was a legally valid arrangement between the United States and Cuba until 1959, when the change in circumstances being invoked to justify its cancellation occurred. In elaborating this argument, Cuba notes that it considers rebus sic stantibus to be equal in weight to pacta sunt servanda in international law and adds that “from the principle of obligation by agreement cannot be deduced obligation against will, without which a juridical order is unimaginable.”11 This argument also asserts that municipal law in both the United States and Cuba supports the concept that a fundamental change in circumstances can warrant the voiding of a treaty. It submits, without citation, that the U.S. Supreme Court has accepted that a relationship can exist between laws and the circumstances that justify them. Regarding support from Cuban law, it refers to a Cuban Supreme Court decision that confirmed a 1956 ruling by a Havana district court in which a lease was

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voided in part because “by virtue of unforeseeable reasons outside the control of both sides, the essential conditions of the contract have been changed. . . . ”12 Option 4. Cuba’s fourth potential legal argument is that the 1934 treaty that reconfirmed the Guantanamo Bay lease was invalidated by the constitution that Cuba adopted in 1940, which stated: “The Republic will not enter into, or ratify pacts or treaties, that in any form whatsoever limit or undermine the sovereignty and integrity of the territory.”13 According to this argument, “This precept, because of its hierarchy, is for immediate application against any pact that denies, diminishes, restricts or adulterates the principle of sovereignty and territorial integrity consecrated in it.” As a result, it asserts, the constitution invalidates the lease as part of the 1934 treaty. It also claims that Cuba’s Supreme Court has jurisdiction to interpret the treaty because its ratification by Cuba transformed it from a diplomatic act into “a juridical act subject to internal law.”14 Whereas the wording in the Constitution of 1940 did not specifically address treaties that already existed, the subsequent Constitution of 1976 left no doubt that treaties deemed unequal by Cuba would be considered illegal retroactively: “The Republic of Cuba repudiates and considers illegal and null all treaties, pacts and concessions which were signed in conditions of inequality, or which disregard or diminish its sovereignty over any part of the national territory.”15 Separately from these arguments, the foreign ministry’s publication contended that Cuba’s municipal legal system retained complete jurisdiction over the lease—a situation that would, in effect, mean that a higher level of jurisdiction, Cuba’s, existed over the complete jurisdiction that the lease gave to the United States at Guantanamo Bay. According to this contention, although the United States may claim it is not obliged to comply with the decisions of Cuban courts, the U.S. acceptance of Cuba’s ultimate sovereignty over Guantanamo Bay leaves the United States with only certain rights that Cuba transferred to it. “Since in this lease only the use and enjoyment of such fixed property is granted, it is obvious that the Republic of Cuba preserves ‘dominium’ and ‘imperium’ over them, a condition that determines the full jurisdiction of Cuban courts for hearing controversies that arise around the legal validity and effectiveness of the aforementioned leasing contract, subject to domestic Cuban law.”16 In presenting this claim, however, the publication does not reconcile it with the Cuban Supreme Court ruling of 1934 that declared Guantanamo Bay to be “for all legal effects regarded as foreign.” Nor does it seem that the assertion has been tested in any legal setting. Despite the second option’s consideration of U.S. violations of the lease, this issue has never been prominent among Cuban criticisms of the U.S. presence at Guantanamo Bay. U.S. activities that fell outside a strict

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reading of the lease’s restrictions have been denounced only occasionally in Cuban legal commentary and political discourse, perhaps in recognition that for decades prior to 1959 Cuba showed little concern about their occurrence. Cuba has been more vocal in publicly criticizing U.S. activities at Guantanamo Bay since 2002, joining a wave of international criticism of the United States amid allegations that the human rights of terrorism suspects detained on the leased territory were being abused. Yet Cuba has not argued that the United States was violating the terms of the lease—rather, it has asserted that the United States was violating its international human rights obligations. Even so, the external attention that Guantanamo Bay has received as a result of the U.S. detention center gave Cuba a fresh political opportunity to explain its stance on the lease. This revealed an evolution in the Cuban government’s position: it has narrowed its choices of legal options to those that accept the lease as being, or having been, a valid instrument. As a report by the Cuban Foreign Ministry stated in March 2004: The Cuban government’s position as to the legal situation of the American Naval Base at Guantanamo is that, by being in the legal form of a lease, it does not grant a perpetual right but a temporary one over that part of our territory, by which, in due course, as a just right of our people, the illegally occupied territory of Guantanamo should be returned by peaceful means to Cuba.17

This stance has been repeated at various times since then; in 2008 the Foreign Ministry’s Web site was saying that Guantanamo Bay should revert to Cuban control because “being based on a lease, it is a temporary— not perpetual—occupation of part of our territory.”18 It is clear from these more recent statements that Cuba has not only abandoned the first and second legal arguments that it put forth in 1970, but it has also repudiated the logic behind them. Rather than saying that the lease is perpetual and therefore not valid, Cuba now says the lease is valid and therefore cannot be perpetual. These statements also suggest that Cuba has dropped the fourth legal option from 1970 as well—that the lease was rendered void by successive constitutions since 1940. The one option that has not been undermined by accepting the lease as having been valid is the rebus sic stantibus argument. Even so, Cuba’s political statements continue to inject ambiguity into the matter by asserting that the U.S. presence on the territory is illegal. What is evident from the different legal options published by the Cuban government in 1970 is that the return of Guantanamo Bay was not a priority even then. After eleven years of opposing the U.S. lease, it had not yet settled on a strategy for trying to win back the territory through legal means. Today’s discrepancy in saying that the lease is valid but the

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tenancy is illegal shows that Cuba apparently still has not formed a coherent or consistent view of how to recover the territory. This stands as one possible explanation of why Cuba has not brought any formal legal action against the United States with regard to Guantanamo Bay. Indeed, Cuba may have even harmed its chances to succeed in the legal arena by having publicly put forth its conflicting views over time that the lease is both legal and illegal. Another explanation may be that international law traditionally has not considered revolutions as events that would justify the termination of treaties on grounds of rebus sic stantibus,19 which adds a hurdle for a post-revolutionary government like Cuba’s if it indeed favors this argument. A third explanation stems from the geopolitical realities faced by Cuba. As a state whose military strength is far weaker than that of the United States, it never managed to make the Soviet Union eager to help it recover Guantanamo Bay during or after the Missile Crisis in 1962. For the Soviets it remained a side issue, although for Cuba a heightened Soviet commitment to the matter could have helped in both the legal and political arenas in view of the Soviets’ influence on international law and in the institutions through which it evolves. The Soviet Union’s demise ended Cuba’s most opportune period for having a powerful ally in a legal fight to recover the territory. Since then, the relative political and military strengths of the United States and Cuba have made it unlikely that Cuba could physically evict the armed forces of the United States from Guantanamo Bay, and its decision to reject the idea of taking back the territory by force20 appears to simply reflect realpolitik. It may have had little room to maneuver when it decided to put the issue of Guantanamo Bay’s return on the back burner in its bilateral relations with the United States. A fourth explanation of why Cuba is not seeking recovery of the territory through a legal process is that it does not accept compulsory jurisdiction by the International Court of Justice (ICJ) and thus effectively shuns the key channel for doing so. Its position in 1970 was that “Cuba has the right to bring the controversy before the International Court of Justice with respect to the interpretation of the treaty. . . . ”21 However, Miranda Bravo later wrote that Cuba’s reticence to accept ICJ jurisdiction is the result of rulings that led Cuba to conclude that the court is generally biased against the interests of developing countries.22 As it happens, the United States terminated its own acceptance of compulsory jurisdiction in 1986 after forty years23 because it, too, perceived that the court was biased against it—for which it put part of the blame on Cuban influence on other states to use the court “as a political weapon.”24 A final explanation may be that Cuba perceives the risk of launching a formal legal challenge as too great. This could indeed be the case if Cuba believes that the ICJ would not make a fair ruling. Even without taking

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into account its perception that the court is biased, the risk for Cuba of an unfavorable ruling may have grown simply because of the passage of a considerable number of years with no case being brought and with no effort to submit the matter to arbitration. A failure by Cuba to win its case would leave the United States with the right to remain at Guantanamo Bay under the lease, confirming the status quo. This could have significant repercussions on Cuba’s domestic political situation by causing the government to lose face and forcing it to drop a decades-old theme in its diplomatic and public rhetoric. A more extreme outcome might even result in the United States being awarded title to Guantanamo Bay—a scenario that cannot be entirely ruled out because of the history of leased territories in international law, in which title has sometimes shifted to the lessee state. The latter result, explored in more detail below, would have enormous implications for the United States and Cuba and geopolitics in general. However, it would not alter the existing relationship of control and jurisdiction over Guantanamo Bay because the United States already has full authority over the territory, and the lease prevents Cuba from exercising any. The greatest practical impact would be jurisdictional, within the U.S. legal system, as it would bring Guantanamo Bay inside the scope of U.S. sovereign territory. U.S. Arguments for Continuing the Lease The United States has never publicly disclosed any detailed legal arguments for countering a potential Cuban challenge of the Guantanamo Bay lease. In February 1962 the deputy legal adviser at the Department of State, Leonard Meeker, outlined in general terms the U.S. position on the lease’s legality in a confidential memorandum to the secretary of state, Dean Rusk.25 Bilateral relations between the United States and Cuba were precarious at the time the memo was written, and the United States considered it possible that Cuba might make an attempt through legal channels to regain Guantanamo Bay. The United States took the position that a Cuban denunciation of the lease would have no legal validity, with the United States retaining its rights on the territory and being justified in using force if necessary to counter any Cuban attempt to evict it. Meeker based this position on the rights afforded to the United States at Guantanamo Bay under the 1903 and 1934 agreements that created and reaffirmed the lease.26 “The United States presence in Guantanamo rests upon international agreements containing no termination date and making no provision for unilateral termination. Our rights subsist ‘until the two contracting parties agree to the modification or abrogation’ of the Guantanamo lease arrangements,” he wrote.27

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Meeker noted that the U.S. rights at Guantanamo Bay were more expansive than those at other U.S. military bases abroad that were secured in more recent agreements with other states, because they gave the United States the right to exercise “complete jurisdiction and control” at Guantanamo Bay for an indefinite period. “A declaration by Cuba that it denounced, repudiated or abrogated the Guantanamo Base arrangements would be legally ineffective. Those arrangements are to continue, according to their terms, until agreed otherwise between the United States and Cuba,” according to Meeker.28 He said an attempt by Cuba to invoke the doctrine of rebus sic stantibus “would not be well founded” because the options for using it were very narrow and its application had never been supported by an international legal tribunal. “Thus, if Cuba should claim that unilateral statements or actions on its part operated to deprive the United States of its Guantanamo base rights, we would be on strong legal ground in refuting this contention, and in using the necessary force to defend the base at Guantanamo and maintain our position there,” Meeker wrote.29 In addition to the 1903 and 1934 legal instruments that established and reaffirmed the lease itself, the United States took the position that two additional treaties supported its legal right to be present at Guantanamo Bay. One was the Treaty of Relations that was signed in May 1903 and entered into force after ratification the following year, which reaffirmed Cuba’s commitment to lease coaling and naval stations to the United States. In the second treaty, which was signed in March 1904 and took effect after being ratified in 1925, the United States gave up to Cuba any claim to title to the Isle of Pines,30 an island off the western Cuban coast where sovereignty was left undetermined between the United States and Cuba in the 1903 treaty. Article II of this second treaty stated: This relinquishment, on the part of the United States of America, of claim of title to the said Island of Pines, is in consideration of the grants of coaling and naval stations in the Island of Cuba heretofore made to the United States of America by the Republic of Cuba.31

The UN as a Legal Forum In 1947 the UN Security Council was presented with a dispute between Egypt and the United Kingdom that had some parallels to the one over the Guantanamo Bay lease. UN attorney Stavropoulos, in his 1962 note to the Secretary General, suggested that it could indicate how a Cuban complaint against the United States in the Security Council might fare. The dispute involved British troops stationed in Egypt under a 1936 treaty that Egypt maintained was imposed on it by the United Kingdom. Egypt argued that the treaty was no longer valid because the

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circumstances had changed from those existing in 1936, which were characterized by the impending outbreak of World War II, and because the continued presence of British troops violated the principle of sovereign equality of states that was embodied in the Charter of the United Nations. Among the United Kingdom’s counterarguments were that the treaty was still in force and that the principle of pacta sunt servanda should prevail. “The legal position espoused by Egypt appears to have been expressly supported only by the representatives of Poland and of the USSR. The remaining Members of the Council, on the other hand, sought to stress that a solution to the problem should be reached through direct negotiations between Egypt and the United Kingdom,” Stavropoulos wrote, noting that three resolutions calling for negotiations were introduced in the Security Council but none won approval. “It may be surmised that if Cuba were to bring a complaint to the Council, in the current circumstances, against the maintenance of the United States naval station at Guantanamo Bay similar arguments would be advanced, and the majority of the Council might again propose a negotiated settlement at best,” he said. Noting that jurists often maintain that rebus sic stantibus does not automatically release a state from its treaty obligations but gives it the right to claim such a release from the other party, Stavropoulos said the claimant state may be justified in renouncing the treaty if the counterparty state refuses to consider the claim. “In any event, from the practical point of view and legal considerations apart, for as long as the United States continues to occupy the Guantanamo Bay naval station, a peaceful adjustment or settlement can only be reached by negotiation when the atmosphere would be conducive to such negotiation,” he said.32 ALTERNATIVE SCENARIOS FOR THE LEASE Return of Guantanamo Bay to Cuba At least four scenarios can be established for the United States to return Guantanamo Bay to Cuban control by abandoning the territory under terms of the 1934 treaty that sanctioned this method of terminating the lease. The first is the one foreseen by the Helms-Burton Act, which made it U.S. policy to be prepared to enter into talks with Cuba to return Guantanamo Bay, or to revise the terms of the lease, if Cuba installs a democratically elected government. This would necessarily be contingent on two actions within Cuba—the governmental transformation and an agreement by the new government to engage in negotiations with the United States about the territory’s future.

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The second scenario involves the emergence of a geopolitical event that changes the nature of the two states’ behavior toward each other, such as a fresh dispute that heightens tensions or a circumstance that leads to a rapprochement, causing the U.S. retention of Guantanamo Bay to be part of a different bilateral political context. The sharp worsening of relations during the 1962 Missile Crisis, for example, created an opportunity for the United States to weigh the value of keeping or leaving Guantanamo Bay relative to the mix of near-term and longer-term factors that existed during that situation. This gave rise to Adlai Stevenson’s recommendation that strategic U.S. interests might be satisfied more readily by withdrawing from Guantanamo Bay than by staying there. In view of Cuba’s domestic military, political, and economic weakness vis-`a-vis the United States, this scenario is unlikely to occur in the absence of an alliance with a more influential power, as Cuba had with the Soviet Union. In the last few years, Venezuela has shown signs of assuming that role to some extent. It has asserted itself as a more significant regional actor and opponent of the United States and has provided Cuba with a degree of external political and economic support that it has not experienced since the Soviet Union’s collapse. The third scenario stems from the financial costs of maintaining a U.S. base at Guantanamo Bay in an era when both domestic and foreign military bases are periodically examined for potential closure. At various points throughout its history, the Guantanamo Bay facility has been mentioned as a possible candidate for such action. Technological advances in military equipment and in surveillance and communications capabilities may play a role in this scenario by diminishing the value to the United States of maintaining a physical military presence on the territory. This scenario, however, views the territory’s value as tied to traditional military activities, and these may no longer be decisive in evaluating costs against benefits since the structural change in U.S. naval operations that allows for tenant activities at its installations. As we have seen with the detention center for captured terrorism suspects, such activities can be dominant at Guantanamo Bay in view of its reduced military importance. A fourth scenario involves the emergence of political pressures that cause the United States to decide to abandon Guantanamo Bay. Activities at the naval station that result in public controversies, such as the one over alleged human rights abuses at the detention center, can create the conditions for such pressures to emerge within the United States or internationally, or both, and their strength and durability can influence the response. The U.S. lease of the Canal Zone in Panama was terminated because of political pressures that evolved over a period of years— they first built up as domestic pressures within Panama during the 1960s, and as they were sustained, they contributed toward a deterioration of

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U.S.-Panamanian relations.33 The 1977 treaty in which the United States agreed to terminate the Canal Zone lease played a critical role in alleviating the bilateral tensions.34 Revision or Reinterpretation of the Lease’s Terms This can occur through mutual agreement, the other possibility foreseen in the 1934 treaty that reaffirmed the lease. Once again, the Helms-Burton Act may be the vehicle for this to occur if the requisite condition of a democratic government in Cuba is met. There is considerable room for revising the lease’s terms if the two states so desire. The rights and competences granted to the United States can be widened to encompass some or all of the additional activities it has pursued at Guantanamo Bay, or they may become more restrictive. The duration aspect could be revised to incorporate a mechanism by which Cuba can end the lease unilaterally or to restrict the U.S. right to do so. In the same way, an expiration date that is either fixed or renewable can be established. The compensation element may be revised as well, not least to end the discrepancy between the currencies stated in the English and Spanish texts. Options may include establishing a new amount for the annual rent, strengthening the significance of the existing rental amount as an affirmation of Cuban sovereignty, waiving the U.S. requirement to pay it, or specifying a new method for the payment. The United States may also unilaterally alter its interpretation of certain terms of the lease and act accordingly, as it did in 1934 when it adjusted the form and the dollar amount of the annual rental payments to reflect the abandonment of the gold standard and the dollar’s devaluation and as it did in the 1970s when it adjusted the dollar amount again to take into account the changes in the official value of old U.S. gold dollars. Various ways exist to calculate the current annual value of $2,000 in old gold dollars, so it is conceivable that the United States might adopt a different formula than the one it has been using since 1934 if an appropriate reason for doing so emerges. It could, for example, incorporate the open market price of gold, as expressed in dollars, as a factor in determining how much to pay Cuba. Likewise, the United States could, either through a negotiated agreement or unilaterally, alter the annual rental payment to reflect an updated estimate of the value of the physical territory that comprises Guantanamo Bay. These last two options might seem unlikely in the current political climate because either would cause the United States to substantially increase its annual rental payment to a state it views as an enemy. Moreover, changes such as these could once again elevate the compensation aspect of the lease to being a material element of the arrangement, which would restore the legal consequences of nonperformance by the United States.

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Nonetheless, there are scenarios in which these changes may be envisioned. An improvement in bilateral relations that makes the United States amenable to providing funds to Cuba, or to strengthening its political commitment to it, would be one potential trigger. Another would be to use the lease as a political instrument to press for change in Cuba in ways that the Helms-Burton Act did not foresee. A sharp increase in the rental payment that is made retroactive to 1960 and coincides with a period of Cuban budgetary need, for example, might be great enough to generate pressure for the Cuban government to alter its policy of spurning the U.S. funds, although the financial benefit of such a move would have to be weighed against the potential internal political consequences. U.S. Acquisition of Territorial Title The existing situation appears to offer the United States a remarkably smooth path toward obtaining title to Guantanamo Bay through prescription if it should decide that having sovereignty over the territory is more desirable than having jurisdiction and control without sovereignty.35 Unlikely as it may seem right now, this scenario cannot be ruled out as a possible response to changing geopolitical circumstances. Historical precedents show that states with comprehensive authority over leased territories may develop this temptation; indeed, cases in which states acted in this regard gave rise to the notion that territorial leasing is a disguised form of cession. International law holds that several conditions must be met for a state to acquire territorial title by prescription36 : 1. It must act as sovereign on the territory, without acknowledging that sovereignty resides in the other state. 2. Its display of sovereignty must be peaceful, durable, and uninterrupted. 3. Its display of sovereignty must not be contested; or, as some scholars put it, it must be “public”—known to the other state—in order to establish acquiescence.

Some of the key ingredients are already present. The United States has actively displayed effective control and jurisdiction at Guantanamo Bay over a prolonged period, a requirement for having title that was established through cases such as Island of Palmas, Eastern Greenland, and Minquiers and Ecrehos. Cuba, despite asserting since 1959 that the U.S. presence on the territory is unlawful, has not put a high priority on recovering it by legal means and has not pressed for its return in any form of international legal proceeding. Cuba has an even longer history of tolerating a variety of U.S. activities on the territory—including some that have been dominant—that fall outside the lease’s usage restrictions. And

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Cuba’s own municipal law considers Guantanamo Bay to be foreign territory—the result of the In re Guzman & Latamble decision by its Supreme Court. The transformation of the annual rental amount into a token level renders the compensation aspect of the Guantanamo Bay lease financially inconsequential. However, the act of paying the rent still has a residual and potentially critical role as a means by which the United States can regularly acknowledge Cuban sovereignty over the territory. If the United States were to decide it no longer wished to make this acknowledgment and halted the rent payments while retaining physical control of Guantanamo Bay, Cuba could try to recover legal control of the territory by arguing that nonpayment constitutes a serious enough breach of the lease to justify its abrogation. Such an argument would have to overcome two obstacles that suggest that neither state previously considered the compensation element as a critical pillar: they never acted to prevent the amount of the rental payment from becoming trivial over time, and they never sought to correct the currency discrepancy between the English and Spanish texts. By continuing to issue the annual checks, the United States not only displays its affirmation of Cuban sovereignty over Guantanamo Bay, it also signals that it continues to see the lease as a valid legal instrument. At present, this has value for the United States in two respects. From the standpoint of bilateral relations, it allows the lease to be a diplomatic tool that the United States is using to press for changes in Cuba’s form of government. From a legal perspective, maintaining Guantanamo Bay as a leased area with neither U.S. sovereignty nor Cuban jurisdiction preserves the territory’s character as an extrajurisdictional entity to the extent that U.S. legislation and court rulings allow. Yet both forms of value stem from U.S. government policies, and policies rarely remain static in the long term as they respond to evolving state interests. A policy change toward not paying the rent might put the United States in the situation of complying with all of the prerequisites for obtaining title through prescription. Faced with the prospect of losing title to Guantanamo Bay if it were completely passive, Cuba pursues modest but visible acts of resistance to the U.S. control of the territory. As Zayas notes, “Cuba, of course, has no possibility to expel the United States from Guantanamo; it can only protest, and its protests have the function in international law of frustrating any eventual United States contention about putative Cuban acquiescence, thus preventing the United States from being able to claim sovereignty over the territory by virtue of occupation and prescription.”37 Cuba uses two vehicles for this resistance—public rhetoric in its conduct of international relations and its openly stated refusal to cash the annual rent checks. But are these sufficient to permit Cuba to successfully counter a potential shift of territorial title? Events have shown that Cuba’s denunciations of the U.S. presence at Guantanamo Bay can conflict with

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its actions regarding the territory—an example being Cuba publicly asserting that the U.S. presence on the territory is illegal while volunteering a degree of cooperation with the United States with regard to certain activities on the territory, such as the establishment of the detention center for alleged terrorists. Meanwhile, Cuba’s refusal to cash the annual rent checks from the United States also might be problematic. With the rent assuming a symbolic level, the only reason for its existence today is to serve as an annual U.S. affirmation of Cuban sovereignty. By not turning away the checks, Cuba does not formally reject these affirmations, but keeping the checks uncashed prevents the affirmation of its sovereignty from being as complete an act as it otherwise would be. Between the private-law treatment of transactions by check and the time limit for cashing U.S. government checks, the United States actually is not paying for its presence at Guantanamo Bay, and this raises some critical questions. One is whether the United States is really serious in showing its recognition of Cuban sovereignty. Tendering checks while knowing they will not be cashed may be considered an empty act and arguably not even a valid show of good faith. The United States has not, after all, sought to pay Cuba in cash or by other alternative means. At the same time, one must question the seriousness of Cuba’s non-cashing policy as a protest against the U.S. presence at Guantanamo Bay, as the result can be said to facilitate the U.S. presence there by making it free of charge. By doing this, Cuba creates a more favorable condition for the United States than the lease had envisioned. Rulings in cases of disputed title to territory show that international law gives greater weight to what actually occurs in state-territory relationships than to what is intended or meant to occur by treaty when there is a difference. “With regard to sovereignty, actual and effective control, particularly during the past century, is the most important factor, and it will usually be decisive if some level of acquiescence or acceptance by other nations can also be established,” writes Van Dyke.38 Another relevant factor is the length of time during which Cuba has accepted the U.S. presence and range of activities at Guantanamo Bay. Although there are no fixed standards for this duration in international law,39 the U.S.-Cuban situation has persisted far longer than some jurists believe is a necessary minimum in cases of title transfers by prescription,40 heightening the importance of Cuba’s protests as a deterrent. But are the protests legally sound if Cuba’s rhetoric and behavior do not match and the signals from its actions regarding the U.S. checks are ambiguous? As Gerald Fitzmaurice notes: An opposition, even if persistently maintained, may end by losing all legal force because of its insufficient character. In short, protests, in order to preserve (or rather to go on preserving) the rights of the protesting State, and prevent the acquisition of a prescriptive right by the acquiring State, must

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be effective. Put in another way, this means that diplomatic protests will not indefinitely preserve rights or prevent the process of prescription unless they constitute the sole lawful means in the circumstances by which the State concerned can act, and can endeavor to keep its position intact.41

It is here that the absence of a formal legal challenge to the Guantanamo Bay lease by Cuba may be critical. Fitzmaurice maintains that if legal means are available to settle a territorial issue, “a mere continuance of diplomatic (i.e. paper) protests will not serve indefinitely to keep the position open” and “can in the end be construed as a constructive abandonment by the State of its rights—a tacit acquiescence in the situation, debarring it, as has been said, ‘from further questioning what has become part of the established legal order.’”42 This tacit acquiescence then becomes “the real and proximate cause of the change of sovereignty.”43 It should be mentioned that it is not outside the realm of possibility for a transfer of title to occur if Cuba were to file a legal complaint against the validity of the Guantanamo Bay lease—if Cuba loses the case and the ruling reflects judicial activism of a sort that is occasionally seen in international adjudications. The International Court of Justice said in a 1950 ruling that an international tribunal should not decide matters that go beyond the arguments presented in a case,44 although occasionally its subsequent rulings have shown the court to act otherwise. This occurred in a 1997 judgment in which the court decided that a treaty breached by both Hungary and Slovakia remained in force, but that the states did not have to revert to its terms if events subsequent to the breaches allowed its objectives to be met in other ways.45 Hugh Thirlway considers that the court was arguably “deciding issues that were not before it for decision.”46 Because the Guantanamo Bay lease allocated control, jurisdiction, and sovereignty, the adjudication of a challenge of its validity may consider these features in their own right. Unless a legal proceeding is launched, however, the existing sovereign ambiguity of Guantanamo Bay is bound to remain intact for now, as neither the United States nor Cuba appears willing to force the issue in the near term. But by failing to maintain the integrity of key aspects of the lease during its first century of existence,47 both states have set the stage for a potential transfer of title through prescription if either state becomes proactive in asserting a claim. Continuation of the Lease in its Present Form The lease of Guantanamo Bay could, of course, remain in its present form indefinitely. As the terms require the United States to either take the initiative in ending the arrangement or voluntarily accept a Cuban request to change or terminate it (such a request would be necessary, as Cuba may

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not act unilaterally toward these ends), U.S. political policy becomes the factor that determines how long the status quo is maintained. As long as Cuba remains without a government that the United States deems to be democratic, there is nothing to force the adoption by the United States of a new policy toward the territorial lease like the one envisioned by the Helms-Burton Act. Various factors may contribute to the desire of the United States to continue the territorial lease as it currently stands. It may see the lease as having ongoing political value as a vehicle for inducing eventual change in Cuba’s form of government; it may want to maintain a military installation on the island for strategic or other reasons; or it may wish to keep the site from being developed by Cuba as a museum or other commemoration that portrays the United States in an unfavorable light. Additionally, the United States may want to make further use of the distinction that exists between U.S. jurisdiction on its sovereign territory and its jurisdiction at Guantanamo Bay. Cuba, too, may find it convenient to not make any genuine overtures for changing the lease despite its public denunciations. Its tolerance of U.S. activities and its reluctance to launch a legal challenge to the U.S presence at Guantanamo Bay might reflect, in some measure, such an attitude, even if it mainly reflects a pragmatic response to the power imbalance between the United States and Cuba. Politically, the Cuban government may help sustain its standing with the domestic population and within the international community of states through the voice it gains from having an enemy state physically at its doorstep, occupying a piece of its territory, a situation that allows it to regularly portray itself as an underdog against a superpower.48 The risk of losing title to the United States through prescription also may be a deterrent to taking any steps that might alter the existing Guantanamo Bay arrangement. Even a future Cuban government that meets the U.S. vision of democracy may find reasons to want the Guantanamo Bay lease to stay in its current form. The most apparent one is the territory’s potential as an engine for the regional economy, fueled by what is essentially an outpost of a wealthier country. Full and friendly relations between the United States and Cuba could revive the situation that existed prior to the 1959 Cuban revolution, when the U.S. naval base was a major employer of Cubans who lived in the surrounding area, providing several thousand jobs, and when spending by these employees and U.S. personnel stationed at Guantanamo Bay considerably bolstered commercial activity in nearby towns.

CHAPTER 11 THE GLOBAL IMPACT OF THE LEASE GUANTANAMO BAY AS A LEGAL LABORATORY The Lease’s Role in Questions of Law By creating geographical entities that are one step removed from states, territorial leases can generate situations that are not addressed by the prevailing concepts and norms of international law and international relations. The Guantanamo Bay lease has been unusually prolific in doing this throughout its history because of the terminology it employs and the way the United States and Cuba have interpreted and applied its provisions. It must be acknowledged that these were the product of a fairly sloppy diplomatic process. Elements of the lease were spread over three separate agreements, the last of which was rushed to completion in 1934. The lease has ambiguities in some of the concepts it contains, obsolescence in some of its terms, discrepancies between its English and Spanish texts, and substantial flaws in its compensation aspect. Compounding this was the fact that some parts of the lease were interpreted strictly, others loosely—and some were interpreted strictly and loosely at different times. The issues it raised for U.S. jurisdiction on the territory apparently were not considered when the lease was negotiated, approved, or reconfirmed, and by drawing in the involvement of different U.S. courts, they all but ensured a variety of rulings on the same essential issue: whether U.S. law applied at Guantanamo Bay. The lease proved functional and durable despite all of this amid considerable political shifts and divergent views regarding its existence. In the process, it turned Guantanamo Bay into a legal laboratory. To the extent that it was a model of how to do it, the United States went on to lease territory for military installations throughout the world, as did many other states. And by providing lessons in what not to do, subsequent U.S. territorial leases did avoid some of the problems caused by its terms. Yet those terms have remained intact, raising questions that pertain to

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major areas of international law—the concept of sovereignty, the nature and functioning of treaties, the meaning of occupation, and the emergence and exploitation of jurisdictional “black holes.” An Unexplored Aspect of Sovereignty At the most fundamental level, the lease caused sovereignty to be viewed in a manner that has not been previously explored. It introduced the concept of a state having “ultimate sovereignty” (English text) or “definitive sovereignty” (Spanish text) over a territory where it does not have, and may never have, any jurisdiction or control. This concept necessarily entails the inverse notion as well—that of a state with complete, exclusive, and indefinite jurisdiction and control of a territory where it is not, and may never be, sovereign. Although the “ultimate sovereignty” in the English text was a new term for a diplomatic and legal construct, it was left undefined as the United States and Cuba implemented the lease. U.S. scholars and courts have wrestled with its meaning since then, in most cases without reference to the Spanish version of the lease, where the term “definitive” is less ambiguous. At times they have concluded that “ultimate sovereignty” means what the Spanish text says—an underlying, definitive type of sovereignty that currently resides with Cuba while the United States exercises a full range of sovereign rights on the territory. This meaning splits sovereignty into a de facto aspect that is actively displayed and a de jure aspect that is recognized and is the one the U.S. Supreme Court accepted in Boumediene v Bush. At other times, however, U.S. legal scholars have deemed “ultimate sovereignty” to have a strictly temporal meaning, in which Cuba would become the final sovereign over Guantanamo Bay only at some point in the future, if and when the United States abandons its complete jurisdiction and control. This definition clashes with the meaning in the Spanish text but is seen, for example, in Lazar’s assessment that Cuban sovereignty over the territory is currently suspended.1 More significantly, it was the definition adopted by the Gherebi v Bush court in declaring the United States as the actual current sovereign. This confused situation was not improved by how the United States and Cuba have implemented the lease, as they have behaved in ways that display both meanings of “ultimate sovereignty,” rather than acting strictly in alignment with its “definitive” meaning. When “ultimate sovereignty” is used in the underlying, definitive sense, its de facto aspect is evidenced by the active U.S. control of the territory and by Cuba’s open recognition that it does not have such control. Its de jure aspect is evidenced by the United States issuing checks for the annual rent to Cuba and, through 1959, their acceptance by Cuba, and by official U.S. references to the territory as “Guantanamo Bay, Cuba.” Their use of the temporal meaning of

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“ultimate sovereignty” is shown in the 1934 treaty reaffirming the lease with an acknowledgment that it may end in the future, by the stipulation in the Helms-Burton Act that looks toward a possible termination of the lease, and by Cuba’s assertion that it will have future control over the territory. The simultaneous use of both meanings of “ultimate sovereignty” creates a paradox that is critical to any determination of where sovereignty actually resides: Cuba will never display sovereignty in the temporal sense if the United States does not abandon Guantanamo Bay, so the very existence of ultimate sovereignty in this sense depends on the United States—which means that ultimate sovereignty in the underlying, definitive sense rests with the United States and not with Cuba. Moreover, because the United States is the sole determinant of whether it keeps Guantanamo Bay forever or abandons it so Cuba can have sovereignty there, the nature of U.S. sovereignty becomes no different from the sovereignty that any state has over territory and would turn a U.S. abandonment of Guantanamo Bay into a simple, classic territorial cession. Neither the United States nor Cuba intended “ultimate sovereignty” to have this potential. The 1934 treaty created it by granting the U.S. control over ending the lease. Its inadvertent nature is obvious from the behavior of both states, which have shown no sign of perceiving any sovereignty shift and which continue to recognize Cuba as having current and underlying sovereignty at Guantanamo Bay. We cannot know a century after the fact why the English and Spanish texts did not both say “definitive sovereignty,” but a likely explanation is that the term first arose as “ultimate sovereignty” in English during the negotiations and was translated into Spanish in a way that matched its “underlying, definitive” meaning. The reverse probably would have resulted in both texts saying “definitive sovereignty,” because the word “definitive” has the same definition in both languages. Of course, no legal judgment at an international level would view the lease as being able to transfer title to the territory against the will of both states. Even so, because the passage of time is one of the factors influencing whether a state that controls territory has sovereignty over it, it cannot be ruled out that the matter might arise in a future court case. Questions for Treaty Law The terms of the lease that govern the range of transferred rights, duration, and compensation also generated new types of legal issues and paradoxes. With these, viable responses emerged that have allowed the lease to function, although they, too, left behind a confused legal situation. With regard to rights at Guantanamo Bay, for example, Cuba’s transfer of total authority to the United States is incompatible with the restrictions

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that limit the U.S. activities to a coaling station and/or naval station. A state with “complete jurisdiction and control” of a territory inherently has the authority to determine how to use it in any way and at any time, with no outside state or other entity having the jurisdiction or control necessary to impose limits. This would cause any restrictions on U.S. activities at Guantanamo Bay to be voluntary ones, although their inclusion in the lease as a negotiated legal instrument makes them legal obligations. They can be seen to conflict with the U.S. right, under its complete control, to alter its voluntary limits if and when it desires to do so. In this context, Cuba has interpreted the lease to mean that the United States has complete jurisdiction and control “in its material and restricted sense, that is, insofar as they are indispensable for the enjoyment and use of the territory by the Government of the United States according to the object or purpose for which it was destined.”2 By contrast, the United States has generally interpreted the lease extremely loosely, stretching some of the restrictions and deviating from others. It is here that the interplay of international relations and treaty law can be seen: the limits on U.S. activities that are stipulated in the lease have, in practice, become political limits shaped by the strong state–weak state dynamic, with the U.S. actions that deviate from the lease’s restrictions stopping short of provoking Cuba into severe enough reactions to cause intolerable diplomatic or legal consequences. Here, too, the Gherebi v Bush decision proved a rich source of judicial reflection on the influence of this dynamic. “For a considerable period of time, our government has purposely acted in a manner directly inconsistent with the terms of the Lease and continuing Treaty [the 1934 treaty],” the majority opinion reads, adding that “the United States has used the Base for whatever purposes it deemed necessary or desirable,” while Cuba has been powerless to prevent it.3 A derivative question this poses for international law is how far states can deviate from the object and purpose of a treaty to meet their changing needs and interests without changing the text of the treaty. Put another way, can a treaty evolve without alteration if the parties continue to accept its original content as justifying actions that no longer match the treaty’s initial aims? Some jurists argue that the political nature of treaties and the evolution of international relations can be grounds for reinterpretations, although this view is not universally held.4 What the Guantanamo Bay lease shows is that reinterpretations can occur without disturbing a treaty’s ongoing functioning as long as the political dynamics allow for it. Hence the shifts from a coaling station to an oil supply depot, and from a naval station to a naval operating base and then to a full-fledged naval base, generated no particular difficulty. The latter example, moreover, shows this can occur in a progressive manner, with each new action adding distance from the original text.

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That a treaty can be stretched quite far and remain valid is indicated by the 1934 treaty in which the United States and Cuba reconfirmed the Guantanamo Bay lease. That treaty placed the lease into an updated legal framework for their bilateral relations, but it kept intact the immediate object and purpose of the lease itself as well as its original 1903 terms, even though some were clearly obsolete, having been discarded and replaced in actual practice. Treaty interpretations can also swing between broader and narrower over time, as evidenced by the issuing and later rescinding of the authority for some private businesses to operate at Guantanamo Bay. The practicality of a future reversion to an earlier situation may dictate whether a “point of no return” is reached with loose interpretations. The downgrading of the U.S. facility to a naval station in 2003 showed that significant deviations can be rolled back to conform to a narrower interpretation (although that was not the reason it was done in this case, and the presence of non-naval tenants admittedly adds complications), but it is unlikely that further advances in naval fuel technology would result in the return of coaling stations. A related issue is whether deviations from a treaty that are not considered material by the parties involved and/or are accepted and tolerated at the time they occur may, at some future point, attain a cumulative magnitude that constitutes a material violation. The execution of the Guantanamo Bay lease and the evolution of U.S.-Cuban relations provide the principal ingredients for weighing this question. What is material in a treaty also is put into question by the Guantanamo Bay lease through its compensation aspect, which combines two functions—financial and symbolic. The absence of sufficient adjustments for the amount of rent to remain significant in real terms caused it to lose value financially, but whether the rent’s residual value as a symbolic U.S. acknowledgment of Cuban sovereignty is necessarily a material element is uncertain. The lease of Hong Kong’s New Territories by China to Great Britain (1898) and the lease of Naharayim/Baqura and Zofar/Al Ghamr by Jordan to Israel (1994) entailed no financial compensation whatsoever, and the lease of Tin Bigha by India to Bangladesh (1992) set such a low annual token rent that the lease itself waived the requirement for Bangladesh to pay it. These show that states sometimes consider the act of concluding a territorial arrangement in the form of a lease, combined with the lessee’s ongoing compliance with its terms, as sufficient recognition of the lessor’s sovereignty, with no purely symbolic ongoing acknowledgment necessary. When states consider financial compensation to be a key element of a lease but no mechanism exists to preserve its relative importance as currency values and economic contexts change, they sometimes make subsequent adjustments, as occurred with the lease of Quinto Real Norte

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(Pays Quint Septentrional) by Spain to France. Other than adjusting the dollar amount for changes in the official price of U.S. gold dollars, no such corrections were made with the Guantanamo Bay lease. Likewise, nothing was done to correct the currency discrepancy between the English and Spanish texts of the lease. Either situation could have created serious problems. Whether they were intentionally ignored or simply not detected as matters to rectify, they show that neither state behaved as if the compensation element of the lease were particularly important—a fact that could play into any judgment about its role in acknowledging Cuban sovereignty. Defining Occupied Territory Another matter raised by the lease’s implementation since 1959 is whether Guantanamo Bay is an occupied territory. The Hague Regulations defining and governing occupation in international law were clearly intended for the sort of factual situation that exists—a state exercising full control of another state’s territory through a military presence against the wishes of the other state—but they did not take into account that this situation could arise through events other than belligerent conflict. The Guantanamo Bay lease allowed it to occur through a dramatic change in bilateral relations between the parties, with the United States not desiring to abandon the territory. At issue, then, is whether the law of occupation is flexible enough to accommodate the means as well as the result when the method by which a territory enters this condition differs from military conflict. An affirmative answer would create a need to address situation-specific factors that are not in harmony with existing rules of occupation, which in the case of Guantanamo Bay involve the use of U.S. rather than Cuban legal norms on the territory. A negative answer prompts the question of whether occupation law should encompass such deviations. Charles de Visscher’s observation that a situation of occupation is recognizable by the established fact that constitutes it5 shows that at least some scholars have viewed the observed result as sufficient to establish that occupation exists, regardless of the means. Nonetheless, the shortcomings of the law of occupation are acknowledged by many legal scholars today, as it has not evolved in line with changes in the nature of occupation itself.6 The idea of a “trustee occupancy” as differentiated from belligerent occupancy has been advocated by some legal scholars, and the situation at Guantanamo Bay is broadly aligned with that concept: Unlike a belligerent occupant, a trustee occupant confronts no likelihood that the predecessor power will regain control. Whereas a belligerent occupant is barred from implementing any changes in the existing laws or

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institutions providing such amendments are in the best interest of the inhabitants, the trustee occupant may govern without such categorical restrictions. The trustee occupant has this power since the raison d’ˆetre for requiring adherence to the status quo ante, preservation of the ousted legitimate sovereign’s reversionary interest, would no longer be relevant.7

Although it is possible that the United States will abandon Guantanamo Bay in the future, causing control to revert to Cuba, this concept accommodates such matters as the presence of U.S. jurisdiction. Henry H. Perritt, Jr., notes, however, that the idea of trustee occupancy has not been widely accepted.8 Moreover, the examples cited by scholars, such as the U.S. occupation of Germany after World War II and Israel’s occupation of the West Bank since the 1967 Six-Day War, grew from military victories in conflict, whereas the situation at Guantanamo Bay did not. Still, the general nature of the occupants’ presence is similar to that which exists at Guantanamo Bay, and postwar Germany and the West Bank have been acknowledged as occupied territory in a legal sense. The question of occupation at Guantanamo Bay is linked to the 1934 treaty that reconfirmed the lease. At its creation in 1903 the lease contained no reference to duration, but the 1934 treaty added conditions that allowed for its unilateral termination by one party and not the other—and thus for the United States to remain on the territory after Cuba’s will turned against it. This lopsided aspect of the lease is something that is not cleanly addressed in international law. Article 56 of the 1969 Vienna Convention on the Law of Treaties prohibits a state from terminating, denouncing, or withdrawing from a treaty unless the treaty intends or implies that these actions can occur9 —something the 1934 treaty does with respect to the U.S. role in the lease but does not with respect to Cuba’s. The 1934 treaty also injects the role of estoppel into the equation—if Cuba has a legal obligation to respect its own reaffirmation of the lease, a determination that Guantanamo Bay is occupied territory might require recognition of a fundamental change in circumstances similar to that embodied in the rebus sic stantibus doctrine. The Legality of the Lease Is the lease itself legal? There is nothing in international law that prevents two sovereign states from making a leasing arrangement with terms and conditions like those in the lease for Guantanamo Bay. Meanwhile, Cuba has abandoned the view that the lease is made invalid by the nature of its terms or by its relationship to Cuban constitutional law, and a judgment on whether it is invalidated today by factors such as a fundamental change in bilateral circumstances is unlikely. But the unique way the lease came into existence did generate questions about the legality of the

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process, bringing into focus the role of coercion in treaty law. Specifically, the Soviet Union held up Guantanamo Bay as an example when it argued to have the controversial doctrine of unequal treaties, or those resulting from coercion, incorporated into the Vienna Convention on the Law of Treaties. While the United States did insist that Cuba accept the Platt Amendment, which led to the lease, it is doubtful that its actions could be judged to constitute illegal coercion, because the Convention finally stated that only treaties obtained by force are void (Article 52), and the idea that “force” included political or economic coercion was widely discounted. As Maris notes, however, the nature of the U.S. pressure on Cuba did have a hint of force, as the U.S. military troops that controlled the island would have stayed in control if Cuba had not accepted the Platt Amendment and secured its independence.10 The 1934 treaty had the effect of largely neutralizing this issue by eliminating most of the Platt Amendment’s provisions; as far as the Guantanamo Bay lease was concerned, the treaty, which ensured its continuation, was acknowledged by Cuba to have been entered into at its free will. Cuba did assert in one of the legal arguments it made much later (and subsequently abandoned) that the lease was illegal because it was the product of coercion. Yet hidden behind this argument is another paradox: Cuba could oppose the way it obtained sovereignty only by obtaining sovereignty, through which it became an actor in international law.

The Legal “Black Hole” At present, the most noteworthy legal anomaly resulting from the lease is the jurisdictional vacuum that it allowed to develop at Guantanamo Bay—the so-called legal “black hole,” which was largely but perhaps not completely eliminated by the U.S. Supreme Court’s Boumediene v Bush ruling. It came about because a state with full jurisdictional rights transferred them in their entirety to another state that later determined it was incapable of exercising them all, and because other aspects of the lease blocked off the options for correcting this. According to the lease, the United States does not have to give back the jurisdictional authority it obtained at Guantanamo Bay, while Cuba has no right to exercise any aspect of jurisdiction that the United States does not display or to reassume control over the territory without U.S. approval. The two states’ sovereign authority by nature prevents any third-party state or international entity from intervening on its own to fill the gap. The only other option would be for the lease to be terminated and for Cuban jurisdiction to apply, which appears unlikely in the foreseeable future. To the extent that Boumediene v Bush leaves room for a residual jurisdictional vacuum at Guantanamo Bay, it

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must be recognized and addressed as a real element of the international legal framework as long as the lease remains in effect. Here again, there is no indication that the lease’s negotiators considered the potential consequences of the jurisdictional aspect of their arrangement, even though these would have been clear from the U.S. Supreme Court ruling in Downes v Bidwell just two years earlier. The “black hole” emerged early in the lease’s implementation as the United States began to develop a framework of piecemeal jurisdiction at Guantanamo Bay, but it was benign for nearly a century, and as such, it hardly raised any eyebrows. Only in recent years was it recognized as an exploitable feature of the territory’s legal status through the U.S. court cases involving the rights of Haitian and Cuban asylum seekers in the 1990s and the realization by the U.S. government after September 11, 2001, that this feature had practical value for its plan to detain suspected terrorists. Because the Supreme Court decisions in Rasul v Bush and Boumediene v Bush may not have eliminated this value completely, there may be future attempts to determine when and how it can be exploited. Some scholars argue that far from being a space of legal exception because of a jurisdictional vacuum, Guantanamo Bay actually represents an elaborate, localized legal framework that has been developed within the confines of the U.S. legal system to entail its own form of jurisdiction, operating, as Fleur Johns puts it, “under circumstances not pre-codified by pre-existing norms.”11 Even when seen this way, however, the jurisdiction of the U.S. legal system as it applies on U.S. sovereign territory would have remained partially absent at Guantanamo Bay if the local jurisdictional framework developed for a specific area of law (e.g., the detention and trial of prisoners held as terrorism suspects) did not in itself address the gaps that existed on the territory for other areas of law. The fact that the Boumediene v Bush ruling was founded partly on the U.S. intent to govern Guantanamo Bay indefinitely might limit the validity of the Constitution’s application on the territory to the duration of Cuba’s current form of government. A change to an acceptable democracy would trigger the Helms-Burton Act’s mandate that the United States must be ready to negotiate the future of Guantanamo Bay and its possible return to Cuba. This may usher in a period in which the United States still controls the territory but no longer intends this control to be indefinite. The continued application of the Constitution at Guantanamo Bay could hinge on the relative importance of this point among those weighed in Boumediene v Bush. Even if the prospect of withdrawing the Constitution’s application at Guantanamo Bay under these circumstances is remote, it creates a unique scenario: due to the Helms-Burton Act’s provision regarding Guantanamo Bay, an event in one state could become a determinant of how the constitution of another is applied.

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Importantly, a jurisdictional vacuum like the one that emerged at Guantanamo Bay is not restricted to domestic U.S. legal matters—it also affects U.S. jurisdiction in its role as an agent for applying international law that the United States is obliged to apply through its adherence to international legal instruments and standards. International law cannot impose itself; it must be administered, and the only entity capable of administering it at Guantanamo Bay is the state that has jurisdictional rights on the territory. As a result, Guantanamo Bay became a location where the application of international legal norms required determinations by the U.S. legal system that the United States has the jurisdiction necessary to apply them. Questions that arise about U.S. law can spur such determinations, but so can questions of international law for which there is no guidance from municipal jurisdictional decisions. Any residual “black hole” that may be found at Guantanamo Bay after the Boumediene v Bush ruling can still leave the territory without international law coverage in whatever ways the United States determines that its own jurisdiction does not apply. THE FUTURE IMPACT State Behavior, Regimes, and International Law The Guantanamo Bay lease makes an important contribution to understanding the nature of the Westphalian system by exposing the capability of states to create a previously unknown type of territorial space, one where aspects of jurisdiction can be missing. Because this affects the application of both municipal law and international law, it is essential to determine whether it is a unique phenomenon that can occur only at Guantanamo Bay, or whether the circumstances that gave rise to it can be replicated elsewhere. If it can occur elsewhere, additional questions arise. One has to do with the scope that a jurisdiction gap may have. Another is whether the creation of a “black hole” can happen only inadvertently, as was the case at Guantanamo Bay (where it was a side effect of the lease, not its purpose), or whether it can result from intentional action. If we break down the jurisdiction gap at Guantanamo Bay into its structural features, we see that it derives from a combination of elements from international law and municipal law. It required two sovereign states as the legal actors, a bilateral agreement in which one state granted jurisdictional rights on part of its territory to the other state, and a legal system in the state receiving the rights that created a distinction between the breadth of jurisdiction on its sovereign territory and that which it applied extraterritorially. History has shown that other territorial leases sometimes have transferred jurisdiction comprehensively from the lessor to the lessee, and it is not unknown for states’ legal systems to establish unequal jurisdictional regimes on different territories where they exercise control.12

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From this, we can conclude that the jurisdiction gap at Guantanamo Bay may be an isolated occurrence so far as is known, but it is not necessarily the only one that can exist. In looking at the potential scope of jurisdictional vacuums, examining the one at Guantanamo Bay is a useful starting point. The fact that some parts of the U.S. legal system have applied there and others have not is the result of a specific mix of legislation and court rulings, which suggests that a different mix of laws and judgments would have caused a greater or lesser degree of U.S. jurisdiction to exist on the territory. From this, one can envision that, in the most extreme case, a jurisdiction gap might be great enough to cause the absence of most or all jurisdiction of the state that has the right to exercise it on a particular leased territory. This result, however, would be of little value to a state receiving that right at the bilateral level, as it would undermine other aspects of the lease for which the jurisdictional right was transferred. A practical limit may therefore exist on how much jurisdiction actually can be removed from a territory. To see if this kind of phenomenon might happen intentionally demands a look at how Guantanamo Bay originated. It was created through entirely conventional diplomatic processes that states had been using in their relations with each other—executive agreements and treaties—and the lease itself was not an unusual form of state-to-state arrangement, either in 1903 or today. But unlike previous leases, the terms of the Guantanamo Bay lease created a Frankenstein-like territory that eluded the legal control of its creators: two states with full and exclusive legal jurisdiction over their own sovereign territories were able to jointly establish a geographic space that became completely exempt from the jurisdiction of one state and partly exempt from the jurisdiction of the other. Moreover, their sovereign authority, by its nature, prevents any third-party state or international entity from intervening to fill the gap. It does appear, then, that a lease can be created with this intent. Guantanamo Bay has exemplified what Neuman calls an “anomalous zone,” where “certain legal rules, otherwise regarded as embodying fundamental policies of the larger legal system, are locally suspended.”13 He notes that such geographical exceptions to fundamental policies can be dangerous for the policies’ basic values. “In a sense, any exception to a rule tests the firmness of the rule. Exceptions may multiply, and even if they do not, the rule is only as strong as the barriers to bringing oneself within the exception,” he writes, adding that “within an anomalous zone, disrespect for one fundamental value may breed disrespect for others.”14 Exceptions to a rule may spread vertically, within a state, as Neuman notes, but they can also spread horizontally, among states.15 Harold Hongju Koh has cited the use of Guantanamo Bay as a detention center as influencing other states to deviate from their established legal

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procedures with regard to the handling of suspected terrorists or other persons deemed to be security threats.16 It is common for states to replicate the behavior of other states when faced with similar situations, producing what political scientists call an international regime—defined by Krasner as a set of “principles, norms, rules and decision-making procedures around which actors’ expectations converge in a given area of international relations.”17 A recognized regime can be a catalyst for other states to act accordingly. International relations theorists have debated whether a regime can exist only if states knowingly emulate the actions of other states or whether it does not matter how states came to behave along similar lines,18 but one thing is clear: regimes provide the models of state behavior that act as a source of customary international law. As Shaw notes, “Customary law is founded on the performance of state activities and the convergence of practices, in other words, what states actually do.”19 Meanwhile, Arthur A. Stein writes that common interests and aversions among states are among the factors that allow regimes to develop.20 A number of states in all parts of the world consider terrorism to be a problem separate from traditional crime, giving rise to a regime of state behavior in which municipal penal codes have been supplemented with special legal processes and rules that apply to suspected or convicted terrorists but not to persons charged or convicted of other crimes. As Anil Kalhan et al. note, “The impulse to enact special laws stems from real and perceived problems concerning the effectiveness of the regular criminal justice system itself, which create intense pressures to take particular offenses outside of that system.”21 This observation was made in reference to India’s antiterrorism laws, but they are equally valid for those of many other states. These laws often generate their own set of questions and controversies vis-`a-vis human rights; for example, by authorizing detention without charges for periods of time, incommunicado detention, or other procedures by which suspected terrorists may be afforded fewer legal rights or given harsher treatment than they would experience through the application of standard criminal law. With the globalization of terrorism in recent decades, states regularly look to each other’s behavior in regard to dealing with it, and the use of Guantanamo Bay as a detention center with limited jurisdiction has now provided states with another option that is available for their consideration. Because the existence of a jurisdictional vacuum affects the application of international law in addition to U.S. law, it is reasonable to ask whether Cuba might have the right, or even the obligation, to take steps to ensure compliance with international law at Guantanamo Bay if it considers the United States to be violating it. The events since 2002 involving the treatment of prisoners detained on the territory make this a particularly relevant issue to explore. As both states consider Cuba’s “ultimate

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sovereignty” to be an underlying, definitive type of sovereignty as part of the meaning they give the term, does this mean that Cuba has transcendent legal rights at the international level for what occurs on the territory? If it does, can Cuba exercise them after having relinquished jurisdiction and control? It is not an exaggeration to say that questions like this put the integrity of international law at stake; as Jim Russell notes with regard to international human rights law, its universality can be threatened by situations of sovereignty like that at Guantanamo Bay, and this is highlighted by the U.S. ruling in Sale v Haitian Centers Council, Inc., which restricted the geographic scope of U.S. application of international legal obligations to its own sovereign territory.22 This brings us back to the basic issue of sovereignty at Guantanamo Bay by adding another aspect to examine: whether “ultimate sovereignty” includes, for the state that has it, ultimate jurisdiction for purposes of international law. Implications for the Future of Territorial Leasing The political decisions that led to Guantanamo Bay’s use as a detention center, and the legal decisions that have shaped U.S. activities there, highlight the territory’s capability to have a jurisdiction gap and create the conditions for a new regime of state behavior to emerge around this point. Historically, states have gravitated toward using leased territories for similar types of activities—the exploitation of natural resources, the placement of military bases, the installation of diplomatic missions, and so on. With Guantanamo Bay, the United States has established that a leased territory may also be useful as an extrajurisdictional zone, and the court rulings that allowed for this use effectively legitimized it as a form of state behavior. This may contribute to giving other leased territories intrinsic value as extrajurisdictional zones if the terms of the leases allow for it. This raises the possibility that leased territories, simply by virtue of being leased, may be employed by states for practices they do not conduct on other types of territories where sovereignty and jurisdiction are more clearly established. This is not automatically a bad thing, because these practices may be entirely in harmony with municipal and international law and provide positive benefits, as with a special economic zone.23 However, it opens the door for practices that might conflict with legal norms, as the issues that have arisen at Guantanamo Bay have shown. It also gives rise to the possibility that states might negotiate the creation of territorial leases specifically in order to have territory that is under their control but where their actions may be less restricted than under the legal systems on their sovereign territory, in order to test the limits of those systems or to intentionally subvert them. States could thus use leased

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territories as spaces of experimentation with the systems that sustain them. At the same time, criticism from other states of how the United States has used the jurisdictional vacuum at Guantanamo Bay may discourage states from concluding future territorial leases with terms that might allow such “black holes.” Guantanamo Bay could thus become a model for other states to copy—or to avoid. Guantanamo Bay reveals a major difference between territorial leases and private-law leases: a state-to-state lease is simultaneously a legal instrument with contractual characteristics and a political vehicle by which a state can pursue its interests. The political aspect influences how a lease is interpreted and administered, and Guantanamo Bay shows what can happen when a lease survives a collapse in bilateral relations. Territorial leases tie two states together in a way that can become difficult to untangle if relations turn bad, and a strong-state lessee may not go easily if it perceives its interests are better served by staying. The terms of the Guantanamo Bay lease allowed the United States to do this, but it might also occur through a lease’s expiration, with the defiant lessee becoming a territorial squatter. This has particular relevance for leased military bases because of the questions that the presence of military personnel raise about occupation if the lessee defies the lessor’s will and declines to give up its rights. Periodic efforts by states to subvert the international legal ban on acquiring territory by conquest suggest that overstaying a lease cannot be ruled out as a means.24 The Guantanamo Bay lease also serves to warn states that territorial leases are high-risk agreements relative to other kinds of bilateral accords because of their potential to bring territorial title into question. Notably, it even shows how this can occur domestically within each state, as seen in the Cuban Supreme Court ruling that Guantanamo Bay must be considered foreign and the U.S. Ninth Circuit Court finding that the United States is the actual sovereign. Implications for the Westphalian System of States Leased territories contribute to the evolution of the Westphalian order by creating challenges for it. The questions they raise about sovereignty and its derivative structures affect the entire system of states, reaching far beyond the two states that are directly involved in creating and administering a specific lease. The lease of Guantanamo Bay adds to this process in two ways. The first involves notions of sovereignty, specifically “ultimate sovereignty” and “de facto sovereignty.” Regarding the first of these, the temporal definition of “ultimate sovereignty” derives a degree of legitimacy (regardless of the intent of the negotiators who used the term)

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through its use by both the United States and Cuba in executing the lease, and this has consequences for the relationship between states and territory in a broader sense. This temporal view of “ultimate” assumes that sovereignty over territory can exist for a duration that is less than permanent, or at least shorter than the assumed permanency of states. Yet sovereignty as it has applied to states has not been viewed as something temporary, except by the handful of French legal scholars early in the twentieth century who saw territorial leases as temporary cessions of sovereignty in the absolute sense and who saw the return of leased territories to the lessor states as being equally complete cessions of sovereignty. One scholar at the time, Perrinjaquet, analyzed this with regard to practical issues for the states involved, but the implications for the nature of sovereignty and for the Westphalian system of states have never been explored. Acknowledging that sovereignty can have a temporary form could force a reassessment of the basic characteristics of sovereignty and could undermine the order of the Westphalian system by allowing such things as temporary states or temporary transfers of title to portions of their territory. The norms of state behavior would have to adapt to include both the presence of such phenomena and the situations they create. Guantanamo Bay provides an indication of one of the various ways that temporary sovereignty might be incorporated into the system—the lease essentially emulates modern financial market instruments known as options, which give the holder the right to buy or sell specified securities or commodities under fixed conditions, such as a time period and price, if the holder so decides. Under the lease, the United States may either keep its sovereign rights at Guantanamo Bay or give them up, and if it does the latter it may only divest them to one party, Cuba. Meanwhile, the U.S. Supreme Court’s reliance on the concept of de facto sovereignty in its Boumediene v Bush ruling raises questions about how it can be identified as a legal circumstance. One international law scholar has described six possible interpretations of de facto sovereignty that range from a narrow form that matches Guantanamo Bay’s situation exactly and makes it the only example to a broad form involving a state’s exercise of extraterritorial authority over citizens of other states.25 The other challenge to the Westphalian system that stems from the lease is the jurisdiction gap. It allows us to see for the first time that states not only can create a territorial entity that lacks a key feature that the states have themselves, but also that the states can view this difference as an asset to exploit. The distinct political and legal status of a leased territory can be a tool that the lessee state uses in carrying out activities that are not inherently related to the territory, rather than being simply an arrangement covering a defined space where a lessee can pursue activities linked to the territory’s own attributes or geographic location.

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For a state that sprang from the Westphalian system to value a territory precisely because it does not have the same characteristics as territory where it is sovereign is a disruptive development for the system, contributing to the erosion of state-based notions of territory. It signals a new application of the pragmatism that territorial leasing has attracted states to display, and in this sense it enhances our understanding of state behavior. But until now, lessee states have always used their rights on leased territories to pursue objectives related to preserving or enhancing their own viability as states. With Guantanamo Bay, we have witnessed the first case in which a state has used its leased territory primarily to bypass a fundamental process—the U.S. court system—that it had created toward that end.

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APPENDICES

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APPENDIX 1 TREATY OF PARIS (1898) TREATY OF PEACE BETWEEN THE UNITED STATES OF AMERICA AND THE KINGDOM OF SPAIN1 The United States of America and Her Majesty the Queen Regent of Spain, in the name of her august son Don Alfonso XIII, desiring to end the state of war now existing between the two countries, have for that purpose appointed as plenipotentiaries: The President of the United States; William R. Day, Cushman K. Davis, William P. Frye, George Gray, and Whitelaw Reid, citizens of the United States; And Her Majesty the Queen Regent of Spain; Don Eugenio Montero R´ıos, President of the Senate, Don Buenaventura de Abarzuza, Senator of the Kingdom and ex-Minister of the Crown, Don Jos´e de Garnica, Deputy of the Cortes and Associate Justice of the Supreme Court, Don Wenceslao Ram´ırez de Villa-Urrutia, Envoy Extraordinary and Minister Plenipotentiary at Brussels, and Don Rafael Cerero, General of Division; Who, having assembled in Paris, and having exchanged their full powers, which were found to be in due and proper form, have, after discussion of the matters before them, agreed upon the following articles: ARTICLE I Spain relinquishes all claim of sovereignty over and title to Cuba. And as the Island is, upon its evacuation by Spain, to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, for the protection of life and property. ARTICLE II Spain cedes to the United States the Island of Porto Rico and other islands now under Spanish sovereignty in the West Indies, and the Island of Guam in the Marianas or Ladrones.

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ARTICLE III Spain cedes to the United States the archipelago known as the Philippine Islands, and comprehending the islands lying within the following line: A line running from west to east along or near the twentieth parallel of north latitude, and through the middle of the navigable channel of Bachi, from the one hundred and eighteenth (118th) to the one hundred and twenty-seventh (127th) degree meridian of longitude east of Greenwich, thence along the one hundred and twenty seventh (127th) degree meridian of longitude east of Greenwich to the parallel of four degrees and forty five minutes (4◦ 45’) north latitude, thence along the parallel of four degrees and forty five minutes (4◦ 45’) north latitude to its intersection with the meridian of longitude one hundred and nineteen degrees and thirty five minutes (119◦ 35’) east of Greenwich, thence along the meridian of longitude one hundred and nineteen degrees and thirty five minutes (119◦ 35’) east of Greenwich to the parallel of latitude seven degrees and forty minutes (7◦ 40’) north, thence along the parallel of latitude seven degrees and forty minutes (7◦ 40’) north to its intersection with the one hundred and sixteenth (116th) degree meridian of longitude east of Greenwich, thence by a direct line to the intersection of the tenth (10th) degree parallel of north latitude with the one hundred and eighteenth (118th) degree meridian of longitude east of Greenwich, and thence along the one hundred and eighteenth (118th) degree meridian of longitude east of Greenwich to the point of beginning. The United States will pay to Spain the sum of twenty million dollars ($20,000,000) within three months after the exchange of the ratifications of the present treaty. ARTICLE IV The United States will, for the term of ten years from the date of the exchange of the ratifications of the present treaty, admit Spanish ships and merchandise to the ports of the Philippine Islands on the same terms as ships and merchandise of the United States. ARTICLE V The United States will, upon the signature of the present treaty, send back to Spain at its own cost the Spanish soldiers taken as prisoners of war on the capture of Manila by the American forces. The arms of the soldiers in question shall be restored to them. Spain will, upon the exchange of the ratifications of the present treaty, proceed to evacuate the Philippines, as well as the Island of Guam, on

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terms similar to those agreed upon by the Commissioners appointed to arrange for the evacuation of Porto Rico and other islands in the West Indies, under the Protocol of August 12, 1898, which is to continue in force till its provisions are completely executed. The time within which the evacuation of the Philippine Islands and Guam shall be completed shall be fixed by the two Governments. Stands of colors, uncaptured war vessels, small arms, guns of all calibres, with their carriages and accessories, powder, ammunition, livestock, and materials and supplies of all kinds, belonging to the land and naval forces of Spain in the Philippines and Guam, remain the property of Spain. Pieces of heavy ordnance, exclusive of field artillery, in the fortifications and coast defences, shall remain in their emplacements for the term of six months, to be reckoned from the exchange of ratifications of the treaty; and the United States may, in the meantime, purchase such material from Spain, if a satisfactory agreement between the two Governments on the subject shall be reached. ARTICLE VI Spain will, upon the signature of the present treaty, release all prisoners of war, and all persons detained or imprisoned for political offences, in connection with the insurrections in Cuba and the Philippines and the war with the United States. Reciprocally, the United States will release all persons made prisoners of war by the American forces, and will undertake to obtain the release of all Spanish prisoners in the hands of the insurgents in Cuba and the Philippines. The Government of the United States will at its own cost return to Spain and the Government of Spain will at its own cost return to the United States, Cuba, Porto Rico, and the Philippines, according to the situation of their respective homes, prisoners released or caused to be released by them, respectively, under this article. ARTICLE VII The United States and Spain mutually relinquish all claims for indemnity, national and individual, of every kind, of either Government, or of its citizens or subjects, against the other Government, that may have arisen since the beginning of the late insurrection in Cuba and prior to the exchange of ratifications of the present treaty, including all claims for indemnity for the cost of the war. The United States will adjudicate and settle the claims of its citizens against Spain relinquished in this article.

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ARTICLE VIII In conformity with the provisions of Articles I, II, and III of this treaty, Spain relinquishes in Cuba, and cedes in Porto Rico and other islands in the West Indies, in the island of Guam, and in the Philippine Archipelago, all the buildings, wharves, barracks, forts, structures, public highways and other immovable property which, in conformity with law, belong to the public domain, and as such belong to the Crown of Spain. And it is hereby declared that the relinquishment or cession, as the case may be, to which the preceding paragraph refers, can not in any respect impair the property or rights which by law belong to the peaceful possession of property of all kinds, of provinces, municipalities, public or private establishments, ecclesiastical or civic bodies, or any other associations having legal capacity to acquire and possess property in the aforesaid territories renounced or ceded, or of private individuals, of whatsoever nationality such individuals may be. The aforesaid relinquishment or cession, as the case may be, includes all documents exclusively referring to the sovereignty relinquished or ceded that may exist in the archives of the Peninsula. Where any document in such archives only in part relates to said sovereignty, a copy of such part will be furnished whenever it shall be requested. Like rules shall be reciprocally observed in favor of Spain in respect of documents in the archives of the islands above referred to. In the aforesaid relinquishment or cession, as the case may be, are also included such rights as the Crown of Spain and its authorities possess in respect of the official archives and records, executive as well as judicial, in the islands above referred to, which relate to said islands or the rights and property of their inhabitants. Such archives and records shall be carefully preserved, and private persons shall without distinction have the right to require, in accordance with law, authenticated copies of the contracts, wills and other instruments forming part of notarial protocols or files, or which may be contained in the executive or judicial archives, be the latter in Spain or in the islands aforesaid. ARTICLE IX Spanish subjects, natives of the Peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty, may remain in such territory or may remove therefrom, retaining in either event all their rights of property, including the right to sell or dispose of such property or of its proceeds; and they shall also have the right to carry on their industry, commerce and professions, being subject in respect thereof to such laws as are applicable to other foreigners. In case they

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remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they may reside. The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress. ARTICLE X The inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be secured in the free exercise of their religion. ARTICLE XI The Spaniards residing in the territories over which Spain by this treaty cedes or relinquishes her sovereignty shall be subject in matters civil as well as criminal to the jurisdiction of the courts of the country wherein they reside, pursuant to the ordinary laws governing the same; and they shall have the right to appear before such courts, and to pursue the same course as citizens of the country to which the courts belong. ARTICLE XII Judicial proceedings pending at the time of the exchange of ratifications of this treaty in the territories over which Spain relinquishes or cedes her sovereignty shall be determined according to the following rules: 1. Judgments rendered either in civil suits between private individuals, or in criminal matters, before the date mentioned, and with respect to which there is no recourse or right of review under the Spanish law, shall be deemed to be final, and shall be executed in due form by competent authority in the territory within which such judgments should be carried out. 2. Civil suits between private individuals which may on the date mentioned be undetermined shall be prosecuted to judgment before the court in which they may then be pending or in the court that may be substituted therefor. 3. Criminal actions pending on the date mentioned before the Supreme Court of Spain against citizens of the territory which by this treaty ceases to be Spanish shall continue under its jurisdiction until final judgment; but, such judgment having been rendered, the execution thereof shall be committed to the competent authority of the place in which the case arose.

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ARTICLE XIII The rights of property secured by copyrights and patents acquired by Spaniards in the Island of Cuba and in Porto Rico, the Philippines and other ceded territories, at the time of the exchange of the ratifications of this treaty, shall continue to be respected. Spanish scientific, literary and artistic works, not subversive of public order in the territories in question, shall continue to be admitted free of duty into such territories, for the period of ten years, to be reckoned from the date of the exchange of the ratifications of this treaty. ARTICLE XIV Spain will have the power to establish consular officers in the ports and places of the territories, the sovereignty over which has been either relinquished or ceded by the present treaty. ARTICLE XV The Government of each country will, for the term of ten years, accord to the merchant vessels of the other country the same treatment in respect of all port charges, including entrance and clearance dues, light dues, and tonnage duties, as it accords to its own merchant vessels, not engaged in the coastwise trade. ARTICLE XVI It is understood that any obligations assumed in this treaty by the United States with respect to Cuba are limited to the time of its occupancy thereof; but it will upon termination of such occupancy, advise any Government established in the island to assume the same obligations. ARTICLE XVII The present treaty shall be ratified by the President of the United States, by and with the advice and consent of the Senate thereof, and by Her Majesty the Queen Regent of Spain; and the ratifications shall be exchanged at Washington within six months from the date hereof, or earlier if possible. In faith whereof, we, the respective Plenipotentiaries, have signed this treaty and have hereunto affixed our seals.

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Done in duplicate at Paris, the tenth day of December, in the year of Our Lord one thousand eight hundred and ninety-eight. William R. Day Cushman K. Davis William P. Frye Geo. Gray Whitelaw Reid Eugenio Montero R´ıos B. de Abarzuza J. de Garnica W. R. de Villa Urrutia Rafael Cerero Signed on December 10, 1898; ratified by the United States on February 6, 1899, and by Spain on March 19, 1899; entered into force upon exchange of ratifications on April 11, 1899.

APPENDIX 2 THE PLATT AMENDMENT (1901)1 Whereas the Congress of the United States of America, by an Act approved March 2, 1901, provided as follows: Provided further, That in fulfillment of the declaration contained in the joint resolution approved April twentieth, eighteen hundred and ninetyeight, entitled “For the recognition of the independence of the people of Cuba, demanding that the Government of Spain relinquish its authority and government in the island of Cuba, and withdraw its land and naval forces from Cuba and Cuban waters, and directing the President of the United States to use the land and naval forces of the United States to carry these resolutions into effect,” the President is hereby authorized to “leave the government and control of the island of Cuba to its people” so soon as a government shall have been established in said island under a constitution which, either as a part thereof or in an ordinance appended thereto, shall define the future relations of the United States with Cuba, substantially as follows: “I. That the government of Cuba shall never enter into any treaty or other compact with any foreign power or powers which will impair or tend to impair the independence of Cuba, nor in any manner authorize or permit any foreign power or powers to obtain by colonization or for military or naval purposes or otherwise, lodgement in or control over any portion of said island. “II. That said government shall not assume or contract any public debt, to pay the interest upon which, and to make reasonable sinking fund provision for the ultimate discharge of which, the ordinary revenues of the island, after defraying the current expenses of government shall be inadequate. “III. That the government of Cuba consents that the United States may exercise the right to intervene for the preservation of Cuban independence, the maintenance of a government adequate for the protection of life, property, and individual liberty, and for discharging the obligations with respect to Cuba imposed by the treaty of Paris on the United States, now to be assumed and undertaken by the government of Cuba.

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“IV. That all Acts of the United States in Cuba during its military occupancy thereof are ratified and validated, and all lawful rights acquired thereunder shall be maintained and protected. “V. That the government of Cuba will execute, and as far as necessary extend, the plans already devised or other plans to be mutually agreed upon, for the sanitation of the cities of the island, to the end that a recurrence of epidemic and infectious diseases may be prevented, thereby assuring protection to the people and commerce of Cuba, as well as to the commerce of the southern ports of the United States and the people residing therein. “VI. That the Isle of Pines shall be omitted from the proposed constitutional boundaries of Cuba, the title thereto being left to future adjustment by treaty. “VII. That 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 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. “VIII. That by way of further assurance the government of Cuba will embody the foregoing provisions in a permanent treaty with the United States.”

APPENDIX 3 LEASE AGREEMENT, FIRST PART (1903) English text1 :

AGREEMENT Between the United States of America and the Republic of Cuba for the 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 United States of America and the Republic of Cuba, being desirous to execute fully the provisions of Article VII of the Act of Congress approved March second, 1901, and of Article VII of the Appendix to the Constitution of the Republic of Cuba promulgated on the 20th of May, 1902, which provide: “Article VII. 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.” have reached an agreement to that end, as follows:

ARTICLE I The Republic of Cuba hereby leases to the United States, for the time required for the purposes of coaling and naval stations, the following described areas of land and water situated in the Island of Cuba: 1st. In Guantanamo (see Hydrographic Office Chart 1857). From a point on the south coast, 4.37 nautical miles to the eastward of Windward Point Light House, a line running north (true) a distance of 4.25 nautical miles;

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From the northern extremity of this line, a line running west (true), a distance of 5.87 nautical miles; From the western extremity of this last line, a line running southwest (true), 3.31 nautical miles; From the southwestern extremity of this last line, a line running south (true), to the seacoast. This lease shall be subject to all the conditions named in Article II of this agreement. 2nd. In Northwestern Cuba (see Hydrographic Office Chart 2036). In Bahia Honda (see Hydrographic Office Chart 520b). All that land included in the peninsula containing Cerro del Morrillo and Punta del Carenero situated to the westward of a line running south (true) from the north coast at a distance of thirteen hundred yards east (true) from the crest of Cerro del Morrillo, and all the adjacent waters touching upon the coast line of the above described peninsula and including the estuary south of Punta del Carenero with the control of the headwaters as necessary for sanitary and other purposes. And in addition all that piece of land and its adjacent waters on the western side of the entrance to Bahia Honda included between the shore line and a line running north and south (true) to low water marks through a point which is west (true) distant one nautical mile from Pta. del Cayman. ARTICLE II The grant of the foregoing Article 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. Vessels engaged in the Cuban trade shall have free passage through the waters included within this grant. ARTICLE III 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 (under conditions to be hereafter agreed upon by the two Governments) 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.

216

Appendix 3. Lease Agreement, First Part (1903)

Done in duplicate at Habana, and signed by the President of the Republic of Cuba this sixteenth day of February, 1903. T. Estrada Palma Signed by the President of the United States the twenty third of February, 1903. Theodore Roosevelt Spanish text2 : CONVENIO ´ Entre la Republica de Cuba y los Estados Unidos de Am´erica para arrendar a los Estados Unidos (bajo las condiciones que habr´an de convenirse por los dos Gobiernos) tierras en Cuba para estaciones carboneras y navales. ——— ´ Deseando la Republica de Cuba y los Estados Unidos de Am´erica ejecutar en todas sus partes lo prevenido en el Art´ıculo VII de la Ley del Congreso que fue aprobada el 2 de Marzo de 1901 y en el Art´ıculo VII del ´ de la Republica ´ Ap´endice de la Constitucion de Cuba promulgada el 20 de Mayo de 1902, en los cuales se dispone que: “Art´ıculo VII. Para poner en condiciones a los Estados Unidos de mantener la independencia de Cuba y proteger al pueblo de la misma, as´ı como para su propia defensa, el Gobierno de Cuba vender´a o arrendar´a a los Estados Unidos las tierras necesarias para carboneras o estaciones navales en ciertos puntos determinados que se convendr´an con el Presidente de los Estados Unidos.” han celebrado con ese objeto el siguiente convenio: ARTICULO I ´ La Republica de Cuba arrienda por el presente a los Estados Unidos por el tiempo que las necesitaren y para el objeto de establecer en ellas estaciones carboneras o navales, las extensiones de tierra y agua situadas ´ se describen: en la Isla de Cuba que a continuacion 1◦ . En Guant´anamo (v´ease la Carta 1857 de la Oficina Hidrogr´afica). Partiendo de un punto de la costa sur situado a 4.37 millas mar´ıtimas al ´ este del faro de la “Punta de Barlovento,” una l´ınea que corre en direccion Norte (franco) por una distancia de 4.25 millas mar´ıtimas; Partiendo de la extremidad norte de esta l´ınea, una l´ınea de 5.87 millas mar´ıtimas hacia el Oeste (franco); Partiendo de la extremidad occidental de esta l´ınea, una l´ınea de 3.31 millas mar´ıtimas hacia el Sudoeste (franco);

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´ Partiendo de la extremidad sudoeste de esta ultima l´ınea, una l´ınea en ´ Sur (franco) hasta la costa. direccion Esta arrendamiento quedar´a sujeto a todas las condiciones que se mencionan en el Art´ıculo II de este Convenio. 2◦ . En la parte noroeste de Cuba (v´ease la Carta 2036 de la Oficina Hidrogr´afica). En Bah´ıa Honda (v´ease la Carta 520c de la Oficina Hidrogr´afica). Todo el terreno comprendido en la pen´ınsula en que se halla el Cerro del Morrillo y la Punta del Carenero y que est´a situado al oeste de una l´ınea ´ sur (franco) a una distancia de trazada desde la costa norte en direccion 1300 yardas al este (franco) de la cresta del Cerro del Morrillo y todas las aguas adyacentes que se confinan con el litoral de la pen´ınsula arriba de´ scrita incluyendo el estero al sur de la Punta del Carenero con jurisdiccion sobre las cabezadas en cuanto sea necesario para fines sanitarios y de otro g´enero. ´ de terreno y sus aguas adyacentes al lado Y, adem´as, toda la extension oeste de la entrada de Bah´ıa Honda comprendido entre el litoral y una l´ınea de Norte a Sur (franco) hasta donde llegue la bajamar atravesando un punto que est´a al oeste (franco) y distante una milla mar´ıtima de Punta del Caim´an. ARTICULO II ´ del Art´ıculo anterior incluir´a el derecho a usar y ocupar La concesion las aguas adyacentes a dichas extensiones de tierra y agua, y a mejorar y profundizar las entradas de las mismas y sus fondeaderos, y en general a hacer todo cuanto fuere necesario para poner dichos lugares en condiciones de usarse exclusivamente como estaciones carboneras o´ navales y ´ otro objeto. para ningun Los lugares dedicados al comercio con Cuba gozar´an de libre tr´ansito ´ por las aguas incluidas en esta concesion. ARTICULO III ´ de Si bien los Estados Unidos reconocen por su parte la continuacion ´ la soberan´ıa definitiva de la Republica de Cuba sobre las extensiones de ´ tierra y agua arriba descritas, la Republica de Cuba consiente, por su parte, en que, durante el per´ıodo en que los Estados Unidos ocupen dichas a´ reas a tenor de las estipulaciones de este Convenio, los Estados Unidos ejerzan ´ y senorio ˜ jurisdiccion completos sobre dichas a´ reas con derecho a adquirir (bajo las condiciones que m´as adelante habr´an de convenirse por ambos ´ Gobiernos) para los fines publicos de los Estados Unidos cualquier ter´ reno u otra propriedad situada en las mismas por compra o expropriacion forzosa indemnizando a sus poseedores totalmente.

218

Appendix 3. Lease Agreement, First Part (1903)

Hecho por duplicado en la Habana; y firmado por el Presidente de la ´ Republica de Cuba, hoy d´ıa diez y seis de Febrero de 1903. T. Estrada Palma Firmado por el Presidente de los Estados Unidos hoy d´ıa veinte y tres de Febrero de 1903. Theodore Roosevelt Signed by the president of Cuba on February 16, 1903, and by the president of the United States on February 23, 1903; ratified by Cuba on July 16, 1903.

APPENDIX 4 TREATY OF RELATIONS (1903) RELATIONS WITH CUBA1 Whereas the Congress of the United States of America, by an Act approved March 2, 1901, provided as follows: Provided further, That in fulfillment of the declaration contained in the joint resolution approved April twentieth, eighteen hundred and ninetyeight, entitled, “For the recognition of the independence of the people of Cuba, demanding that the Government of Spain relinquish its authority and government in the island of Cuba, and to withdraw its land and naval forces from Cuba and Cuban waters, and directing the President of the United States to use the land and naval forces of the United States to carry these resolutions into effect,” the President is hereby authorized to “leave the government and control of the island of Cuba to its people” so soon as a government shall have been established in said island under a constitution which, either as a part thereof or in an ordinance appended thereto, shall define the future relations of the United States with Cuba, substantially as follows: “I. – That the government of Cuba shall never enter into any treaty or other compact with any foreign power or powers which will impair or tend to impair the independence of Cuba, nor in any manner authorize or permit any foreign power or powers to obtain by colonization or for military or naval purposes or otherwise, lodgement in or control over any portion of said island.” “II. – That said government shall not assume or contract any public debt, to pay the interest upon which, and to make reasonable sinking fund provision for the ultimate discharge of which, the ordinary revenues of the island, after defraying the current expenses of government shall be inadequate.” “III. – That the government of Cuba consents that the United States may exercise the right to intervene for the preservation of Cuban independence, the maintenance of a government adequate for the protection of life, property, and individual liberty, and for discharging the

220

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obligations with respect to Cuba imposed by the treaty of Paris on the United States, now to be assumed and undertaken by the government of Cuba.” “IV. – That all Acts of the United States in Cuba during its military occupancy thereof are ratified and validated, and all lawful rights acquired thereunder shall be maintained and protected.” “V. – That the government of Cuba will execute, and as far as necessary extend, the plans already devised or other plans to be mutually agreed upon, for the sanitation of the cities of the island, to the end that a recurrence of epidemic and infectious diseases may be prevented thereby assuring protection to the people and commerce of Cuba, as well as to the commerce of the southern ports of the United States and the people residing therein.” “VI. – That the Isle of Pines shall be omitted from the proposed constitutional boundaries of Cuba, the title thereto being left to future adjustment by treaty.” “VII. – That 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 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.” “VIII. – That by way of further assurance the government of Cuba will embody the foregoing provisions in a permanent treaty with the United States.” Whereas the Constitutional Convention in Cuba, on June twelfth, 1901, adopted a Resolution adding to the Constitution of the Republic of Cuba which was adopted on the twenty-first of February 1901, an appendix in the words and letters of the eight enumerated articles of the above cited act of the Congress of The United States; And whereas, by the establishment of the independent and sovereign government of the Republic of Cuba, under the constitution promulgated on the 20th of May, 1902, which embraced the foregoing conditions, and by the withdrawal of the Government of the United States as an intervening power, on the same date, it becomes necessary to embody the above cited provisions in a permanent treaty between the United States of America and the Republic of Cuba; The United States of America and the Republic of Cuba, being desirous to carry out the foregoing conditions, have for that purpose appointed as their plenipotentiaries to conclude a treaty to that end, The President of the United States of America, Herbert G. Squiers, Envoy Extraordinary and Minister Plenipotentiary at Havana, And the President of the Republic of Cuba, Carlos de Zaldo y Beurmann, Secretary of State and Justice, – who after communicating to each

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other their full powers found in good and due form, have agreed upon the following articles: ARTICLE I The government of Cuba shall never enter into any treaty or other compact with any foreign power or powers which will impair or tend to impair the independence of Cuba, nor in any manner authorize or permit any foreign power or powers to obtain by colonization or for military or naval purposes, or otherwise, lodgement in or control over any portion of said island. ARTICLE II The Government of Cuba shall not assume or contract any public debt to pay the interest upon which, and to make reasonable sinking-fund provision for the ultimate discharge of which, the ordinary revenues of the Island of Cuba, after defraying the current expenses of the Government, shall be inadequate. ARTICLE III The Government of Cuba consents that the United States may exercise the right to intervene for the preservation of Cuban independence, the maintenance of a government adequate for the protection of life, property, and individual liberty, and for discharging the obligations with respect to Cuba imposed by the treaty of Paris on the United States, now to be assumed and undertaken by the government of Cuba. ARTICLE IV All acts of the United States in Cuba during its military occupancy thereof are ratified and validated, and all lawful rights acquired thereunder shall be maintained and protected. ARTICLE V The government of Cuba will execute, and, as far as necessary, extend the plans already devised, or other plans to be mutually agreed upon, for the sanitation of the cities of the island, to the end that a recurrence of epidemic and infectious diseases may be prevented, thereby assuring protection to the people and commerce of Cuba, as well as to the commerce of the Southern ports of the United States and the people residing therein.

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Appendix 4. Treaty of Relations (1903)

ARTICLE VI The Island of Pines shall be omitted from the boundaries of Cuba specified in the Constitution, the title thereto being left to future adjustment by treaty. ARTICLE VII 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 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. ARTICLE VIII The present Convention shall be ratified by each party in conformity with the respective Constitutions of the two countries, and the ratifications shall be exchanged in the City of Washington within eight months from this date. In witness whereof, we the respective Plenipotentiaries, have signed the same in duplicate, in English and Spanish, and have affixed our respective seals at Havana, Cuba, this twenty-second day of May, in the year nineteen hundred and three. H. G. Squiers Carlos de Zaldo Signed on May 22, 1903; ratification period extended by supplementary convention on January 20, 1904; ratified by Cuba on June 20, 1904, and by the United States on June 25, 1904; entered into force upon exchange of ratifications on July 1, 1904.

APPENDIX 5 LEASE AGREEMENT, SECOND PART (1903) English text1 : LEASE OF CERTAIN AREAS FOR NAVAL OR COALING STATIONS The United States of America and the Republic of Cuba, being desirous to conclude the conditions of the lease of areas of land and water for the establishment of naval or coaling stations in Guantanamo and Bahia Honda the Republic of Cuba made to the United States by the Agreement of February 16/23, 1903, in fulfillment of the provisions of Article Seven of the Constitutional Appendix of the Republic of Cuba, have appointed their Plenipotentiaries to that end. The President of the United States of America, HERBERT G. SQUIERS, Envoy Extraordinary and Minister Plenipotentiary in Havana. And the President of the Republic of Cuba, JOSE M. GARCIA MONTES, Secretary of Finance, and acting Secretary of State and Justice, who, after communicating to each other their respective full powers, found to be in due form, have agreed upon the following Articles: ARTICLE I The United States of America agrees and covenants to pay to the Republic of Cuba the annual sum of two thousand dollars, in gold coin of the United States, as long as the former shall occupy and use said areas of land by virtue of said agreement. All private lands and other real property within said areas shall be acquired forthwith by the Republic of Cuba. The United States of America agrees to furnish to the Republic of Cuba the sums necessary for the purchase of said private lands and properties and such sums shall be accepted by the Republic of Cuba as advance payment on account of rental due by virtue of said Agreement.

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Appendix 5. Lease Agreement, Second Part (1903)

ARTICLE II The said areas shall be surveyed and their boundaries distinctly marked by permanent fences or inclosures. The expenses of construction and maintenance of such fences or inclosures shall be borne by the United States. ARTICLE III 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. ARTICLE IV Fugitives from justice charged with crimes or misdemeanors amenable to Cuban Law, taking refuge within said areas, shall be delivered up by the United States authorities on demand by duly authorized Cuban authorities. On the other hand the Republic of Cuba agrees that fugitives from justice charged with crimes or misdemeanors amenable to United States law, committed within said areas, taking refuge in Cuban territory, shall on demand, be delivered up to duly authorized United States authorities. ARTICLE V Materials of all kinds, merchandise, stores and munitions of war imported into said areas for exclusive use and consumption therein, shall not be subject to payment of customs duties nor any other fees or charges and the vessels which may carry same shall not be subject to payment of port, tonnage, anchorage or other fees, except in case said vessels shall be discharged without the limits of said areas; and said vessels shall not be discharged without the limits of said areas otherwise than through a regular port of entry of the Republic of Cuba when both cargo and vessel shall be subject to all Cuban Customs laws and regulations and payment of corresponding duties and fees. It is further agreed that such materials, merchandise, stores and munitions of war shall not be transported from said areas into Cuban territory. ARTICLE VI Except as provided in the preceding Article vessels entering into or departing from the Bays of Guantanamo and Bahia Honda within the limits

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of Cuban territory shall be subject exclusively to Cuban laws and authorities and orders emanating from the latter in all that respects port police, Customs or Health, and authorities of the United States shall place no obstacle in the way of entrance and departure of said vessels except in case of a state of war. ARTICLE VII This lease shall be ratified and the ratifications shall be exchanged in the City of Washington within seven months from this date. In witness whereof, We, the respective Plenipotentiaries, have signed this lease and hereunto affixed our Seals. Done at Havana, in duplicate in English and Spanish this second day of July nineteen hundred and three. H. G. Squiers Jos´e M. Garc´ıa Montes Spanish text2 : REGLAMENTO PARA EL ARRENDAMIENTO DE LAS ESTACIONES NAVALES Y CARBONERAS ´ Deseando la Republica de Cuba y los Estados Unidos de Am´erica dejar terminadas las condiciones del arrendamiento de las a´ reas de terreno y agua que, para el establecimiento de estaciones navales o carboneras, ´ en Guant´anamo y Bah´ıa Honda, hizo la Republica de Cuba a los Estados Unidos por el convenio de 16–23 de febrero de 1903 llevado a cabo en cumplimiento de lo preceptuado en el art´ıculo VII del Ap´endice Con´ stitucional de la Republica de Cuba, han nombrado con ese objeto sus plenipotenciarios: ´ El Presidente de la Republica de Cuba a Jos´e M. Garc´ıa Montes, Secretario de Hacienda e interino de Estado y Justicia. Y el Presidente de los Estados Unidos de Am´erica a Herbert G. Squiers, Enviado Extraordinario y Ministro Plenipotenciario en La Habana, quienes, previo el canje de sus respectivos plenos poderes que encontraron estar en debida forma, han convenido en los siguientes art´ıculos: ARTICULO I Los Estados Unidos de Am´erica acuerdan y estipulan pagar a la ´ Republica de Cuba la suma anual de dos mil pesos en monedas de oro de los Estados Unidos, durante todo el tiempo que e´ stos ocuparen y usaren dichas a´ reas de terreno en virtud del mencionado Convenio.

226

Appendix 5. Lease Agreement, Second Part (1903)

Todos los terrenos de propriedad particular y otros bienes inmuebles comprendidos en dichas a´ reas ser´an adquiridos sin demora por la ´ Republica de Cuba. Los Estados Unidos de Am´erica convienen en suministrar a la ´ Republica de Cuba las cantidades necesarias para la compra de dichos ´ terrenos y bienes de propriedad particular, y la Republica de Cuba aceptar´a dichas cantidades como pago adelantado a cuenta de la renta debida en virtud de dicho Convenio. ARTICULO II ´ Dichas a´ reas ser´an deslindadas y sus linderos marcados con precision ´ por medio de cercas o vallados permanentes. Los gastos de construccion de estas cercas o vallados ser´an sufragados por los Estados Unidos. ARTICULO III Los Estados Unidos de Am´erica convienen en que no se permitir´a a ´ alguna establecer o ejercer empresas compersona, sociedad o asociacion erciales, industriales o de otra clase dentro de dichas a´ reas. ARTICULO IV ´ Los delincuentes profugos de la justicia acusados de delitos o faltas su´ de las leyes cubanas y que se refugiaren dentro de jetos a la jurisdiccion dichas a´ reas, ser´an entregados por las autoridades de los Estados Unidos cuando lo pidieren autoridades cubanas debidamente autorizadas. Por ´ ´ otra parte, la Republica de Cuba conviene en que los profugos de la justi´ de las leyes de los cia acusados de delitos o faltas sujetos a la jurisdiccion Estados Unidos, cometidos dentro de dichas a´ reas y que se refugiaren en territorio cubano, ser´an, cuando se le pida, entregados a las autoridades de los Estados Unidos debidamente autorizadas. ARTICULO V Los materiales de todas clases, mercanc´ıas, pertrechos y municiones de guerra, importados en dichas a´ reas para uso y consumo exclusivo de las ´ mismas, no estar´an sujetos al pago de derechos arancelarios ni a ningun otro derecho o carga, y los buques que los condujeren no estar´an sujetos al pago de derechos de puerto, tonelaje, anclaje ni a cualquier otro, salvo, cuando dichos buques se descargaren fuera de los l´ımites de las referidas a´ reas; y dichos buques no ser´an descargados fuera de los l´ımites de las referidas a´ reas, a menos que no sea por un puerto habilitado de la ´ Republica de Cuba, y en este caso tanto el cargamento como los buques

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estar´an sujetos a todos las leyes y reglamentos de Aduanas cubanos y al pago de los derechos correspondientes. Se acuerda, adem´as, que esos materiales, mercanc´ıas, pertrechos y municiones de guerra no podr´an ser transportados de dichas a´ reas a territorio cubano. ARTICULO VI ´ de lo dispuesto en el art´ıculo anterior, los buques que Con excepcion entren o salgan de la bah´ıa de Guant´anamo y Bah´ıa Honda dentro de los l´ımites del territorio cubano estar´an exclusivamente sujetos a las leyes y autoridades cubanas, y a las disposiciones emanadas de e´ stas en todo lo concerniente a la Polic´ıa del Puerto, a las Aduanas y a la Sanidad, y las ´ obst´aculo a la autoridades de los Estados Unidos no opondr´an ningun entrada y salida de dichos buques, excepto en el caso de un estado de guerra. ARTICULO VII Este arrendamiento ser´a ratificado y las ratificaciones ser´an canjeadas en la ciudad de Washington, dentro de siete meses despu´es de la fecha. En testimonio de lo cual, nosotros, los respectivos plenipotentiarios, hemos firmado este arrendamiento y estampado en el presente nuestros sellos. Hecho en La Habana, por duplicado, en castellano y en ingl´es, hoy d´ıa dos de julio de mil novecientos tres. Jos´e M. Garc´ıa Montes H. G. Squiers Signed on July 2, 1903; ratified by Cuba on August 17, 1903 and by the United States on October 2, 1903; entered into force upon exchange of ratifications on October 6, 1903.

APPENDIX 6 GUANTANAMO BAY EXPANSION TREATY (1912) PROPOSED AGREEMENT BETWEEN THE UNITED STATES AND CUBA FOR THE ENLARGEMENT OF THE GUANTANAMO NAVAL STATION1 The United States of America and the Republic of Cuba having entered into certain agreements on February 16/23 and on July 2, 1903, by which certain described areas of land and water in Guant´anamo and Bah´ıa Honda in the Island of Cuba were leased to the United States for the purpose of coaling and naval stations, and the two Governments being now desirous of cancelling so much of the said lease as relates to the areas in Bah´ıa Honda and of extending the said lease over certain additional areas of land and water in Guant´anamo, they have therefore resolved to enter into an agreement for that purpose and to that end have named as their plenipotentiaries—the President of the United States; Mr. Arthur M. Beaupr´e, Envoy Extraordinary and Minister Plenipotentiary at Habana; and the President of the Republic of Cuba; Sr. Manuel Sanguily y Garritt, Secretary of State. Who, after communicating to each other their respective full powers found to be in due form, have agreed upon the following articles: ARTICLE I The limits of the areas of land and water of Guant´anamo which were ceded in lease to the United States of America by the agreements of February 16/23 and July 2, 1903, are hereby enlarged and fixed in the following form: 1. From the middle of the river Yateras at the place of its discharge into the ocean, a curved line following the middle of said river to its farthest western intersection with the parallel of 20◦ north latitude.

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2. From the northwestern extremity of this line, a straight line running west (true) a distance of 3.50 miles more or less to its point of intersection with an extension of the line that constitutes the eastern boundary prescribed in the original lease by the Republic of Cuba to the United States; that is to say, to its point of intersection with a line running north (true) from a point on the south coast of Cuba 4.37 nautical miles to the eastward of the present position of Windward Point Lighthouse. 3. From the western extremity of this line, a straight line running south (true) a distance of 1.68 nautical miles more or less to a point east (true) from the northern extremity of the point of North Toro Cay that is situated about 5.68 nautical miles north 201/2 degrees east (true) from the position of the present lighthouse on Windward Point. 4. From the southern end of this line, a straight line running west (true) to its point of intersection with a line running north 35◦ east (true) from the monument H 12 on the northern boundary laid down in the original lease by the Republic of Cuba to the United States. 5. From the western end of this line, a straight line running south 35◦ west (true) to its point of intersection at the monument H 12 with the northern boundary laid down in the original lease by the Republic of Cuba to the United States. 6. From the southwest end of this line, a straight line running north 59◦ 7 west (true) through the said monument H 12 to the line of the east coast of the northeastern point of North Toro Cay. 7. From the northwestern end of this line, a curved line coinciding with the northeastern, northern and northwestern line of the coast of the northeastern point of North Toro Cay to the point of intersection with the prolongation of the said straight line that runs north 59◦ 7 west (true) through the said monument H 12 and the point at the northern extremity of North Toro Cay previously mentioned. 8. From the southwestern end of this line, a straight line that runs north 59◦ 7 west (true) to the point on the northern extremity of North Toro Cay previously mentioned. 9. From the northwestern extremity of this line, a broken line running first north 61◦ 50 west (true) a distance of 0.42 nautical mile more or less, then south 33◦ 53 west (true) a distance of 0.66 nautical mile more or less, said line terminating on the western shore of North Toro Cay at a point south 61◦ west (true) from the southern extremity of Fort Toro, and having its two parts respectively tangent to the northeastern and northwestern shores of the unnamed islet lying northward from Toro Cay. 10. From the southwestern extremity of this line, a straight line running west (true) a distance of 0.21 nautical mile more or less to the shore-line of Flamingo Cay at Cayoba Point. 11. From the western extremity of this line, a curved line running in coincidence with the northeastern and northern shore-line of Flamingo Cay to the westernmost extremity of the northwestern point of Flamingo Cay.

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12. From the western extremity of this line, a straight line running north 70◦ 4 west (true) a distance of 0.48 nautical mile. 13. From the northwestern extremity of this line, a straight line running west (true) a distance of 1.39 nautical miles more or less to a point northeast (true) from the western extremity of the northern boundary described in the original lease granted by the Republic of Cuba to the United States. 14. From the western extremity of this line, a broken line running first southwest (true) a distance of 0.52 nautical mile more or less to the western extremity of the northern boundary described in the aforesaid original lease, and thereafter conforming with the northwestern and western boundaries as laid down in said lease.

ARTICLE II All the rights acquired and all the obligations contracted by the United States of America and the Republic of Cuba in regard to the areas leased at Guant´anamo by virtue of the above-mentioned agreements are hereby extended to the new leased areas. The United States of America agrees and covenants to pay to the Republic of Cuba the annual sum of five thousand dollars in gold coin of the United States as long as the former shall occupy and use the areas leased by this agreement. All or any private lands and other real property within said areas shall, upon the request of the Government of the United States of America, be acquired by the Republic of Cuba. The United States of America agrees to furnish to the Republic of Cuba the reasonable sums necessary for the purchase of said private lands and properties, and such sums shall be accepted by the Republic of Cuba as advance payment on account of rental due by virtue of this agreement. ARTICLE III All the clauses and provisions of the agreements of February 16/23 and July 2, 1903, that are not altered or modified by the present agreement shall remain in full force. ARTICLE IV The United States of America hereby relinquishes all rights over and upon, and the Republic of Cuba hereby releases the United States of America from all duties and obligations connected with and concerning the areas of land and water at Bah´ıa Honda as established by the cession in lease by the Republic of Cuba to the United States of America under the agreements of February 16/23 and July 2, 1903.

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ARTICLE V This agreement of lease and renunciation shall be ratified, and the ratifications shall be exchanged in the City of Habana within six months from the date of this document. In testimony of which we, the respective plenipotentiaries, have signed this lease and renunciation and affixed hereto our seals. Done at Habana in duplicate in English and Spanish this 27th day of December, 1912. A. M. Beaupr´e Manuel Sanguily This treaty was not ratified by either the United States or Cuba.

APPENDIX 7 TREATY OF RELATIONS (1934) TREATY OF RELATIONS1 The United States of America and the Republic of Cuba, being animated by the desire to fortify the relations of friendship between the two countries and to modify, with this purpose, the relations established between them by the Treaty of Relations signed at Habana, May 22, 1903, have appointed, with this intention, as their Plenipotentiaries: The President of the United States of America; Mr. Cordell Hull, Secretary of State of the United States of America, and Mr. Sumner Welles, Assistant Secretary of State of the United States of America; and ˜ Dr. Manuel The Provisional President of the Republic of Cuba, Senor M´arquez Sterling, Ambassador Extraordinary and Plenipotentiary of the Republic of Cuba to the United States of America; Who, after having communicated to each other their full powers which were found to be in good and due form, have agreed upon the following articles: ARTICLE I The Treaty of Relations which was concluded between the two contracting parties on May 22, 1903, shall cease to be in force, and is abrogated, from the date on which the present Treaty goes into effect. ARTICLE II All the acts effected in Cuba by the United States of America during its military occupation of the island, up to May 20, 1902, the date on which the Republic of Cuba was established, have been ratified and held as valid; and all the rights legally acquired by virtue of those acts shall be maintained and protected. ARTICLE III Until the two contracting parties agree to the modification or abrogation of the stipulations of the agreement in regard to the lease to the

Appendix 7. Treaty of Relations (1934)

233

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, and by the President of the United States of America on the 23rd day of the same month and year, the stipulations of that agreement with regard to the naval station of Guant´anamo shall continue in effect. The supplementary agreement in regard to naval or coaling stations signed between the two Governments on July 2, 1903, also shall continue in effect in the same form and on the same conditions with respect to the naval station at Guant´anamo. So long as the United States of America shall not abandon the said naval station of Guant´anamo or the two Governments shall not agree to a modification of its present limits, the station shall continue to have the territorial area that it now has, with the limits that it has on the date of the signature of the present Treaty. ARTICLE IV If at any time in the future a situation should arise that appears to point to an outbreak of contagious disease in the territory of either of the contracting parties, either of the two Governments shall, for its own protection, and without its act being considered unfriendly, exercise freely and at its discretion the right to suspend communications between those of its ports that it may designate and all or part of the territory of the other party, and for the period that it may consider to be advisable. ARTICLE V The present Treaty shall be ratified by the contracting parties in accordance with their respective constitutional methods; and shall go into effect on the date of the exchange of their ratifications, which shall take place in the city of Washington as soon as possible. In faith whereof, the respective Plenipotentiaries have signed the present Treaty and have affixed their seals hereto. Done in duplicate, in the English and Spanish languages, at Washington on the twenty-ninth day of May, one thousand nine hundred and thirtyfour. Cordell Hull Sumner Welles M. M´arquez Sterling Signed on May 29, 1934; ratified by Cuba on June 4, 1934, and by the United States on June 5, 1934; entered into force upon exchange of ratifications on June 9, 1934.

APPENDIX 8 U.S. LEGAL ARGUMENTS (1962) This note from Secretary of State Dean Rusk to National Security Adviser McGeorge Bundy includes a memorandum that U.S. Department of State Deputy Legal Adviser Leonard Meeker sent to Rusk on February 2, 1962.1

DEPARTMENT OF STATE THE SECRETARY \f

February 8, 1962 MEMORANDUM FOR THE HONORABLE McGEORGE BUNDY DC XOIT-M-SOG'n

APR ; • .>Mr. Tim Zuniga-Brown Deputy Director Office of Cuban Affairs Department of State Washington D.C. 20520 Dear Mr. Zuniga-Brown: The Department of the Navy requires the continued use of the United States Naval Base, Guantanamo Bay, Cuba, for the period July 2, 2006 through July 1, 2007, under the terms of the lease agreement between the United States of America and the Government of Cuba signed July 2, 1903. Article 1 of the lease provides that the United States shall pay the annual sum of $2,000.00 in gold coins of the United States for use of the land comprising the Naval Base. The sum will be due on or before July 2, 2006. We request that the Department of State arrange to pay the annual rental through the Swiss Embassy in Havana, at the equivalent of $2,000.00 in gold coins as determined by the Secretary of the Treasury. Funds are available for the payment under the appropriation cited below: AA 1761804 52FA 232 00052 0 068732 2D C001RB 605146FAF11M $4,085.00 Please forward copies of the* pv,blic voucher for tho* funds to Commander, U.S. Naval Base Guantanamo Bay, Public Works Department, Attention Administrative Officer, PSC 1005 Box 37, FPO, AE 09593 and to this office. Sincerely,

"Scott L. Whiteford Deputy Director Real Estate Services Enclosure

252

Appendix 12. U.S. Rent Payment Documents (2006)

EMBASSY OF SWITZERLAND

United States of America Interests Section No. 184

The United States of America Interests Section of the Embassy of Switzerland presents its compliments to the Ministry of Foreign Relations of the Republic of Cuba and transmits herewith United States Treasury Check number 876900191472 in the amount of 4,085 dollars which represents the annual rent payment due July 2, 2006, under the Agreement signed July 2, 1903, covering lease to the United States by Cuba of land and water for the Naval and Coaling Station at Guantanamo Bay.

The amount is tendered as the amount owed

under Article 1 of the Agreement, and has been computed in the manner of which the Government of Cuba has been advised in connection with previous rental payments. The United States of America Interests Section of the Embassy of Switzerland avails itself of this opportunity to renew to the Ministry of Foreign Relations of the Republic of Cuba the assurances of its consideration. Enclosure

(as stated)

Ministry of Foreign Relations Havana, May 16, 2006

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NOTES

INTRODUCTION 1. For example, they occupy four of 1,432 pages in Shaw, International Law (459– 462), and four of 1,510 pages in Nguyen Quoc, Daillier, and Pellet, Droit international public (484–487). 2. This role may be more prominent than that of many states in the system in terms of visibility or influence on the system’s nature. Guantanamo Bay, Hong Kong, and the Canal Zone are among modern examples. 3. Van Kleffens, “Sovereignty in International Law,” 87; Cooley, “Imperial Wreckage,” 101. 4. For a discussion of these divergent theories, see Fowler and Bunck, Law, Power, and the Sovereign State, 63–82. 5. Wilson, “Leased Territories,” 703. 6. Sometimes other forms of agreement are used. The Guantanamo Bay lease was established in 1903 by two instruments, an executive agreement and a treaty. 7. H. Lauterpacht, Private Law Sources, 181–190. 8. Convention between China and Great Britain Respecting an Extension of Hong Kong Territory (Convention of Peking), 186 Consol Treaty Ser 310 (1898). The treaty called the arrangement a lease, although it entailed no compensation— an aspect of territorial leases that was certainly known to both parties; an earlier, short-lived lease involving part of the Kowloon Peninsula obliged the United Kingdom to pay an annual rent to China. See Dicks, “Treaty, Grant, Usage,” 442, 446–447. CHAPTER 1 1. Nguyen Quoc, Daillier, and Pellet, Droit international public, 408–419. 2. Malanczuk, Akehurst’s Modern Introduction, 79–81. 3. This capacity was incorporated into the Convention on Rights and Duties of States (Montevideo Convention), 49 Stat 3097, Treaty Ser 881, Art 1 (1933), signed by 20 states: “A state as a person in international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.” However, some scholars view it as a consequence rather than a criterion of statehood, e.g., Crawford, The Creation of States, 47. 4. Shaw, International Law, 409.

256

Notes

5. Reuter, Droit international public, 20. 6. Brownlie, Principles of Public International Law, 105. Some scholars refer to the high seas as not subject to territorial jurisdiction, or res extra commercium; see Schwarzenberger and Brown, Manual of International Law, 95. 7. Lazar, “The Status of Leasehold,” 56–57. 8. Rousseau, Cours de droit international public, 17. 9. Van Kleffens, “Sovereignty in International Law,” 95. 10. H. Lauterpacht, Private Law Sources, 93. 11. Van Kleffens, “Sovereignty in International Law,” 94–95. 12. Nguyen Quoc, Daillier, and Pellet, Droit international public, 413–414. 13. Brownlie, Principles of Public International Law, 119. 14. Menon, “Title to Territory,” 2. 15. Distefano, L’Ordre International, 33. 16. Ibid., 39. 17. Ibid., 35. 18. Rousseau, Cours de droit international public, 28–29. 19. Nguyen Quoc, Daillier, and Pellet, Droit international public, 414. 20. H. Lauterpacht, Private Law Sources, 93. The italics are his. 21. Van Kleffens, “Sovereignty in International Law,” 96. 22. W. D. Smith, “Friedrich Ratzel,” 51–68. 23. Timasheff, “Theory of Territorial Settlement,” 185. 24. H. Lauterpacht, Private Law Sources, 95–96. 25. Ibid., 96. ´ 26. Lopez Mart´ın, El territorio estatal, 9. 27. Ibid., 8. 28. Case Concerning the Frontier Dispute (Burkina Faso/Mali), 1986 ICJ Rep 554, 580–588, 618–619, 642, 649–651 (1986); Castellino and Allen, Title to Territory, 25. 29. See, among others, Malanczuk, Akehurst’s Modern Introduction, 149. The term occupation also has other legal and informal definitions vis-`a-vis states, notably with respect to their behavior and historical periods, e.g., occupation by a hostile military force. 30. Menon, “Title to Territory,” 9. 31. Ibid., 7, citing C. H. M. Waldock, “Disputed Sovereignty in Falkland Island Dependencies,” The British Yearbook of International Law 25 (1948): 317. ´ 32. See, e.g., Lopez Mart´ın, El territorio estatal, 14–15. 33. Kohen, Possession contest´ee, 27–29. 34. Menon, “Title to Territory,” 18. 35. U.S. Naval War College, International Law Situations 1912, 93; Shaw, International Law, 421–422. 36. Shaw, International Law, 421. 37. Ibid., 420–421. 38. Menon, “Title to Territory,” 17. 39. “Historically, there have been two categories of cession: first, the cession resulting from the use of force against the state ceding the territory in question, in which case the treaty of cession merely formalized military coercion; and second, the cession effected by sale, gift, exchange, or other voluntary transaction.” Boczek, International Law: A Dictionary, 190.

Notes

257

40. Menon, “Title to Territory,” 22. Malanczuk notes that “normally a state defeated in war used to cede territory to the victor by treaty, but conquest alone, without a treaty, could also confer title on the victor under traditional law.” Malanczuk, Akehurst’s Modern Introduction, 151. 41. “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Charter of the United Nations, 59 Stat 1031, Treaty Ser No 993, Ch 1, Art 2, Para 4 (1945). 42. Shaw, International Law, 423–424. 43. See, e.g., Menon, “Title to Territory,” 26–27. He notes that an abrupt change in a river’s course (avulsion) does not result in a boundary change. ´ 44. Lopez Mart´ın, El territorio estatal, 18. 45. Malanczuk, Akehurst’s Modern Introduction, 151. 46. Rousseau, Cours de droit international public, 393–394. The cases he cites involved disputes between Great Britain and Portugal over the Bay of Delagoa (1872), and between Great Britain and Guatemala over the boundary between British Honduras and Guatemala (1937). ´ 47. Lopez Mart´ın, El territorio estatal, 16. 48. Distefano, “La notion de titre juridique,” 346; Menon, “Title to Territory,” 10. 49. Brownlie, Principles of Public International Law, 126–127. 50. Island of Palmas Case (or Miangas), United States of America v The Netherlands, 2 UN Rep Intl Arb Awards 829 (Perm Ct Arb 1928). 51. Ibid., 869–871. 52. Legal Status of Eastern Greenland (Denmark v Norway), PCIJ Series A/B, No 53, 45 (1933). 53. Minquiers and Ecrehos Case (France v United Kingdom). 1953 ICJ Rep 47 (1953). 54. E.g., “Both Eritrea and Yemen claimed title to the various islands on the basis of historic title and more recent acts which they submitted were manifestations of effective occupation of the islands.” E. Lauterpacht, Greenwood, and Oppenheimer, “Government of the State of Eritrea,” 3. 55. E.g., “Rights through succession on a basis of uti possidetis, may give a sort of inchoate starting point for a potential title; but actual title can only exist if (i) the parent State did indeed effectively possess the territory at the date of the succession—for nemo dare potest quod non habet; (ii) the successor State did actually enter into effective possession itself at the time of the succession; and (iii) the successor State subsequently continuously maintained that effective possession.” Fitzmaurice, “General Principles,” 148. 56. Brownlie, Principles of Public International Law, 133–134; Schwarzenberger and Brown, Manual of International Law, 97. 57. Shaw, International Law, 429. 58. Brownlie, Principles of Public International Law, 135–137. 59. Ibid., 133–134. 60. Lee, “Continuing Relevance of Traditional Modes,” 4. 61. Brownlie, Principles of Public International Law, 133–134. 62. Schwarzenberger and Brown, Manual of International Law, 97. 63. Jennings, The Acquisition of Territory, 30.

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64. Sumner, “Territorial Disputes,” 1787, citing Yehuda Z. Blum (Historic Titles in International Law. Leyden: Martinus Nijhoff, 1965). 65. Ibid., 1788. 66. Castellino and Allen, Title to Territory, 49. 67. Brownlie, Principles of Public International Law, 133. 68. Shaw, “Peoples, Territorialism and Boundaries,” 478. 69. Sovereignty over Certain Frontier Land (Belgium v Netherlands), 1959 ICJ Rep 209 (1959). 70. Land and Maritime Boundary (Cameroon v Nigeria), 2002 ICJ Rep 303 (2002). 71. Sumner, “Territorial Disputes,” 1806. 72. Sukiennicki, La Souverainet´e des Etats, 46, citing Raymond Carr´e de Malberg (Contribution a` la th´eorie g´en´erale de l’Etat. Paris: Sirey, 1922). 73. Cohan, “Sovereignty in a Postsovereign World,” 917–918. 74. Nguyen Quoc, Daillier, and Pellet, Droit international public, 474–503. See also Van Kleffens, “Sovereignty in International Law,” 94–99. 75. Roche, Relations Internationales, 89. He notes that independence and sovereignty are equal from a juridical point of view, but from a political standpoint independence means the capacity of a state to meet its own material needs. 76. Shaw, International Law, 412. 77. Island of Palmas Case, 2 UN Rep Intl Arb Awards 829, 839 (Perm Ct Arb 1928). 78. Roche, Relations Internationales, 89–90. 79. Nagan and Hammer, “The Changing Character of Sovereignty,” 143–145. Citing various sources, the authors say sovereignty may refer to absolute, unlimited control of power; political legitimacy; political authority; self-determined, national independence; governance and constitutional order; juridical personality of sovereign equality; international recognition; immunities or privileges; jurisdictional competence to make and/or apply law; and basic governance competencies. They also note that it can be a criterion of jurisprudential validation of all law and a formal unit of a legal system. 80. Fowler and Bunck, Law, Power, and the Sovereign State, 6. 81. Combacau, “Pas une puissance,” 50. 82. Rigaudi`ere, “L’invention de la souverainet´e,” 5. 83. Cohan, “Sovereignty in a Postsovereign World,” 920. 84. Fowler and Bunck, Law, Power, and the Sovereign State, 57–58. 85. Island of Palmas Case, 2 UN Rep Intl Arb Awards 829, 839, 846 (Perm Ct Arb 1928). 86. Ibid., 869. 87. Kohen, Possession contest´ee, 14. 88. Island of Palmas Case, 2 UN Rep Intl Arb Awards 829, 840 (Perm Ct Arb 1928). 89. Nguyen Quoc, Daillier, and Pellet, Droit international public, 474. 90. Ibid., 474–479. 91. Ibid., 479. 92. Fowler and Bunck, Law, Power, and the Sovereign State, 47–51. 93. Krasner, “Troubled Societies,” 3. The term Vattellian stems from the writings of Emmerich von Vattel, who in 1758 was the first to clearly describe noninterference as a principle linked to sovereignty. 94. Nguyen Quoc, Daillier, and Pellet, Droit international public, 483–503.

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95. Sukiennicki, La Souverainet´e des Etats, 82–83. 96. Van Kleffens, “Sovereignty in International Law,” 90–91. 97. Roche, Relations Internationales, 87–89. 98. Van Kleffens, “Sovereignty in International Law,” 93. 99. Roche, Relations Internationales, 90–91. 100. E.g., “The United States recognizes the Tibet Autonomous Region (TAR) and Tibetan autonomous prefectures and counties in other provinces to be a part of the People’s Republic of China.” U.S. Department of State, “Country Reports on Human Rights Practices, 2006—China.” 101. Reuter, Droit international public, 80. 102. Guilhaudis, Relations internationales contemporaines, 75. 103. Malanczuk, Akehurst’s Modern Introduction, 82–86. 104. Krasner, “Troubled Societies,” 29–30. 105. For discussions of these theories, see Grant, The Recognition of States, particularly 1–18; Shaw, International Law, 368–376. 106. Rich, “Recognition of States,” 36. 107. Convention on Rights and Duties of States, (Montevideo Convention), 49 Stat 3097, Treaty Ser 881, Art 3 (1933). 108. Charter of the Organization of American States, 2 UST 2394, TIAS No 2361, Art 9 (1948). 109. Restatement (Third) of Foreign Relations Law of the United States § 202 Comment a. 110. Malanczuk, Akehurst’s Modern Introduction, 85. 111. Shaw, International Law, 370. 112. Huang, “The Modern Concept of Sovereignty,” 128. 113. Kadi´c v Karadˇzi´c, 70 F3d 232, 244–245 (2d Cir 1995). 114. Sukiennicki, La Souverainet´e des Etats, 85; Van Kleffens, “Sovereignty in International Law,” 85–87. 115. Van Kleffens, “Sovereignty in International Law,” 87. 116. Fowler and Bunck, Law, Power, and the Sovereign State, 64–70. 117. Ibid., 70–72. 118. V´ali, Servitudes of International Law, 15–16. 119. Strauss, “The Viability of Territorial Leases,” 46–55. 120. Graham, “Affirming Canadian Sovereignty.” He was minister when he made the comment. 121. Cooley, “Imperial Wreckage,” 101. CHAPTER 2 1. Reid, International Servitudes, 21. Also see Shaw, International Law, 459; he states that leases and servitudes are “legal rights exercisable by states over the territory of other states, which fall short of absolute sovereignty.” 2. Young, International Legal Status of Kwantung, 130. 3. Perrinjaquet, Cessions temporaires, 365. 4. V´ali, Servitudes of International Law, 63. 5. E.g., Lazar, “The Status of Leasehold.” 6. E.g., Reid, International Servitudes; V´ali, Servitudes of International Law.

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7. Lazar, “The Status of Leasehold,” 94–95. 8. Elvin, “The Status of Leased Territories,” 20, citing S. A. Korff, Russia’s Foreign Relations During the Last Half Century. New York: The Macmillan Company, 1922, 65. 9. H. Lauterpacht, Private Law Sources, 188–189. 10. Reid, International Servitudes, 3–4. 11. This, of course, is not always borne out in practice, as transfers of title to territory illustrate. However, the notion of permanence underpins the very concept of sovereign states, and its acceptance as an ideal, however elusive, has fostered the effectiveness of the international system of states and international law. States normally adhere to this ideal when concluding treaties and other agreements, including territorial leases. 12. Rousseau, Droit international public, 49. 13. Elvin, “The Status of Leased Territories,” 21, commenting on H. Lauterpacht, Private Law Sources, 188. 14. Lazar, “The Status of Leasehold,” 91, citing Herbert Thorndike Tiffany, Outlines of Real Property. Chicago: Callaghan, 1929, 32. 15. E.g., the U.S. state of Louisiana. See M. Moore, “New Civil Code Lease Articles.” 16. Elvin, “The Status of Leased Territories,” 22. 17. Reid, International Servitudes, 19–21. 18. Malanczuk, Akehurst’s Modern Introduction, 159. 19. Fabre, Servitudes, 20. 20. Verzijl, International Law in Historical Perspective, 397. 21. Reid, International Servitudes, 28. 22. Strauss, “Leased Territories and Their Role.” 23. Reid, International Servitudes, 57–58. 24. Perrinjaquet, Cessions temporaires. 25. G´erard, Cessions d´eguis´ees, iv. 26. Reid, International Servitudes, xxi. 27. Ibid., xxi–xxii. 28. The North Atlantic Coast Fisheries Case (Great Britain v United States), 11 U.N. Rep. Intl. Arb. Awards 173, 182 (1910). 29. Ibid. Also see Richards, “North Atlantic Coast Fisheries Arbitration,” 20–21. 30. Strauss, “The Viability of Territorial Leases,” 101–104. 31. An international organization would normally be the recipient of the rights (e.g., for a headquarters site), but it could be the lessor if it controls territory itself, such as a trust territory. 32. However, there have been some cases of reciprocal servitudes, such as one that Bolivia and Brazil agreed to establish in 1903 in which each state granted transit rights on its territory to the other state. See Reid, International Servitudes, 155. 33. It is usually very small relative to the total area of the state, but this does not necessarily have to be the case. A servitude that covers a majority (or even, in theory, the totality) of a lessor state’s territory would, however, raise serious questions about effective control.

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34. Insofar as treaties and other agreements between states are voluntary; Fabre has noted that a treaty concluded at the end of a war cannot be equated with a freely concluded treaty with trade as a motive. See Fabre, Servitudes, 25. 35. Malanczuk, Akehurst’s Modern Introduction, 158. 36. Reid, International Servitudes, xxi. 37. This assignment of rights may take the form of a sublet arrangement with a third-party state, although many lease and servitude arrangements forbid this. See Perrinjaquet, Cessions temporaires, 345–348. A case of rights reverting to the lessor state occurred when the United States gave Panama greater authority in the Canal Zone. See Treaty of Mutual Understanding and Cooperation between the United States of America and the Republic of Panama, 6 UST 2273, TIAS No 3297 (1955) and the accompanying Memorandum of Understandings Reached. 38. Reid, International Servitudes, 44. 39. V´ali, Servitudes of International Law, 67–192. 40. Ibid., 199–252. 41. Ibid., 273–283. 42. Vienna Convention on Diplomatic Relations, 23 UST 3227, TIAS No 7502, Art 22 (1961). 43. See, generally, Strauss, “The Viability of Territorial Leases.” 44. These agreements were known as faceries, lies, and passeries in French and facer´ıas in Spanish. One that involved payment in the form of livestock dates to 1375 (between the valleys of Roncal and Bar´etous); by the 1500s they often stipu´ ˜ lated payment in currency. See Cavailles, Lies et Passeries, 12; Gomez-Ib´ anez, The Western Pyrenees, 45. 45. They tended to involve trading posts, such as Pondicherry (in today’s India), which France leased from local sovereigns in 1672. See Van Bogaert, “The Lease of Territory,” 315. 46. Ibid., 316–317. 47. Nguyen Quoc, Daillier, and Pellet, Droit international public, 484. 48. Van Bogaert, “The Lease of Territory,” 316. 49. Danwall, “Guantanamo Bay,” 2. 50. Cooley, “Imperial Wreckage,” 106. 51. Convention for the Construction of a Ship Canal to Connect the Waters of the Atlantic and Pacific Oceans (Hay-Bunau-Varilla Treaty), 33 Stat 2234, Treaty Ser No 431, Art III (1903). 52. Luckenbach S.S. Co. v United States, 280 US 173, 177–178 (1930). 53. Maris, “International Law and Guantanamo,” 261–262; Danwall, “Guantanamo Bay,” 18–20. 54. “British administration of the island began in 1878, when England leased Cyprus from Turkey to guard the new Suez Canal route. On the outbreak of World War I, the island was annexed by London.” Roucek, “Geopolitics of the Mediterranean,” 354. Also see U.S. Library of Congress, “A Country Study: Cyprus— British Rule” and “A Country Study: Cyprus—British Annexation.” 55. Yang, Les territories a` bail. 56. G´erard, Cessions d´eguis´ees, ii–iv. 57. Perrinjaquet, Cessions temporaires, 365. 58. Curzon, “Romanes Lecture.”

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59. Elvin, “The Status of Leased Territories,” 28, citing Amos S. Hershey, The Essentials of International Public Law and Organization. New York: Macmillan, 1927, 282. 60. Wilson, “Leased Territories,” 704. 61. Young, International Legal Status of Kwantung, 5–6. 62. New York Times, “The Partition of China,” March 27, 1898. 63. Lawrence, War and Neutrality, 270–271. 64. A reference to 1898. 65. A reference to 1904. 66. Lawrence, War and Neutrality, 271–274. 67. Yang, Les territories a` bail, 148–149. 68. H. Lauterpacht, Private Law Sources, 184–187. 69. Rousseau, Cours de droit international public, 114–115. 70. V´ali, Servitudes of International Law, 273–274. 71. Van Bogaert, “The Lease of Territory,” 315–316. 72. For instance, in the Convention of Paris of 1898, Great Britain granted to France rights on two pieces of territory along the Niger River. The arrangement was called a “lease,” while the annex that detailed its terms used the word “lease” as both a verb and a noun and described the French payment to Britain as “rent.” See Perrinjaquet, Cessions temporaires, 22–30. 73. Rabin, “Address to the Knesset.” 74. Haddadin, Diplomacy on the Jordan, 394. 75. Dalia Mazori, “Agriculture and Water.” Ma’ariv, July 25, 1995. 76. Venezuela Const Title II, Ch I, Art 13. 77. Constitutional Council of the Republic of Kazakhstan, “On the Official Interpretation.” 78. Lazar, “The Status of Leasehold,” 1–2. 79. Ibid., 353–355. 80. Ibid., 360. 81. Strauss, “The Viability of Territorial Leases,” 123–131. 82. Perrinjaquet, Cessions temporaires, 305–308, 329–345. 83. Ibid., 308–320. 84. Ibid., 348–354. 85. Ibid., 309. 86. Danwall, “Guantanamo Bay,” 37. 87. “The jurisdiction based on sovereignty is in general exclusive, though exceptions are sanctioned by international law and international practice. The jurisdiction based upon lease is naturally dependent on the conditions of lease. The leases vary.” U.S. Naval War College, International Law Situations 1907, 10. 88. Treaty of Bayonne (Treaty of Limits), Art 16 (1856). See De Clercq, Recueil des trait´es, 196–204. 89. Elvin, “The Status of Leased Territories,” 13. 90. Ibid., 15. 91. Dicks, “Treaty, Grant, Usage,” 449–450. 92. High Commission of India (Dhaka, Bangladesh), “Terms of Lease in Perpetuity.”

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93. Agreement for the lease to the United States of lands in Cuba for coaling and naval stations, Treaty Ser No 418 (1903). See Bevans, Treaties and Other International Agreements, vol. 6, 1114. 94. Sandars, America’s Overseas Garrisons, 326. 95. See Yambrusic, Treaty Interpretation, 9–14; J. N. Moore, Treaty Interpretation, 8–10. 96. Strauss, “The Viability of Territorial Leases,” 125–126. 97. Convention between China and Great Britain Respecting an Extension of Hong Kong Territory (Convention of Peking), 186 Consol Treaty Ser 310 (1898). 98. Israel-Jordan Peace Treaty, Annex 1(b), Annex 1(c), 34 ILM 43 (1994). 99. Rousseau, Cours de droit international public, 114, 121–122; U.S. Department of State, International Boundary Study No. 106. 100. Treaty of Bayonne (Treaty of Limits) (1856). See De Clercq, Recueil des trait´es, 196–204. 101. Zayas, “The Status of Guantanamo Bay,” 16–23. 102. This is how the U.S. lease of the Canal Zone from Panama was terminated. 103. Yang, Les territories a` bail, 155–156. 104. Strauss, “The Viability of Territorial Leases,” 129–131. 105. Treaty of Amritsar, Art 10 (1846) states: “Maharajah Gulab Singh acknowledges the supremacy of the British Government and will in token of such supremacy present annually to the British government one horse, twelve shawl goats of approved breed (six male and six female) and three pairs of Cashmere shawls.” Panikkar, Gulab Singh, 114. “On the 13th March, 1884, it was arranged by mutual consent that in future the Maharajah should present, instead of 12 goats, 10 lbs. of pashm in its natural state as brought to Kashmir from Leh, 4 lbs. of picked and assorted black wool, 4 lbs. grey wool, 4 lbs. white wool, and 1 lb. of each of the three best qualities of white yarn.” Ibid., 114. Pashm is wool from goats in Kashmir. 106. High Commission of India (Dhaka, Bangladesh), “Terms of Lease in Perpetuity.” 107. Marjorie Miller, “Britain Illegally Expelled Chagos Islanders for U.S. Base, Court Rules,” Los Angeles Times, November 4, 2000; Richard Beeston, “It may be our territory, but America is in control,” Times (London), February 22, 2008; Chagos Islanders v The Attorney General, [2003] EWCH 2222 (QB), Appendix A. 108. Vienna Convention on the Law of Treaties, 1155 UN Treaty Ser 331, Art 60 (1969). 109. Strauss, “The Viability of Territorial Leases,” 185–187. 110. In the case of the Canal Zone lease, the payment was revised by the General Treaty of Friendship and Cooperation (Hull-Alfaro Treaty), 53 Stat 1818, Treaty Ser No 945 (1936). In the case of the Quinto Real Norte lease, the payment was revised several times by exchanges of diplomatic letters, then by the adoption of a formula. See Strauss, “The Viability of Territorial Leases,” 185–187, 409–411. CHAPTER 3 ´ Guerrero, “El Segundo viaje colombino,” 327–330. Columbus called the 1. Leon bay Puerto Grande. 2. Murphy, Varner, and Coze, History of Guantanamo Bay, Ch. 1.

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3. U.S. Department of the Navy, “United States Naval Base, Guantanamo Bay.” 4. Murphy, Varner, and Coze, History of Guantanamo Bay, Ch. 1. 5. Ibid. The British first called the bay Walthenham Harbor, then renamed it Cumberland Harbor in 1741. 6. Hitchman, “U.S. Control over Cuban Sugar Production,” 93. 7. Knight, “Origins of Wealth,” 249. 8. Ibid., 245–248. 9. For an account of the war, see Ferrer, Insurgent Cuba. 10. P´erez, “Toward Dependency and Revolution,” 133–134. 11. J. Smith, The Spanish-American War, 29. Also see Hern´andez, “The World of 1898”; he notes that with 90% of Cuban exports going to the United States and only 6% going to Spain by 1894, “clearly, Spain had ceased to be Cuba’s economic metropolis.” 12. Madariaga, Espana, ˜ 75; Tusell, Historia de Espana, ˜ 12. 13. J. Smith, The Spanish-American War, 6–18, 30–47. 14. Sweeney, “Guantanamo and U.S. Law,” 677–678. 15. Bevans, Treaties and Other International Agreements, vol. 11, 613–614. 16. Treaty of Peace between the United States of America and the Kingdom of Spain (Treaty of Paris), 30 Stat 1754, Treaty Ser No 343 (1898). See Bevans, Treaties and Other International Agreements, vol. 11, 615–621. 17. American Journal of International Law, “Origin and Purpose of the Platt Amendment,” 587. 18. Isern, Del Desastre Nacional, 512–513. 19. J. Smith, The Spanish-American War, 195; Benton, International Law and Diplomacy, 237. 20. J. Smith, The Spanish-American War, 195. 21. Ibid., 197–200. 22. Benton, International Law and Diplomacy, 238–239. 23. Isern, Del Desastre Nacional, 518–520; Barrio Jala, “El Tratado de Paris.” The U.S. arguments prompted legal scholars to formulate the “doctrine of odious debt.” Under this doctrine, sovereign debt incurred without consent of the people and without benefiting them should not be transferable from a state or government to its successor (see Michael Kremer. 2003. Incentives, Institutions, and Development Assistance. Clemens Lecture, September 11, St. John’s University, Collegeville, Minn.). 24. A postwar finance minister, Raimundo Fern´andez Villaverde, estimated that Spain spent 2 billion pesetas to fight the war. At the time, annual state revenues, including the amount generated from the colonies, were about 1 billion pesetas. ´ See Pan-Montojo, “El atraso economico,” 288. 25. U.S. Department of the Treasury. “Historical Debt Outstanding.” 26. U.S. Library of Congress, “The World of 1898.” 27. New York Times, “The War Revenue Taxes: Statement of the Rates, Under the New Law, Prepared by the Bureau of Statistics,” June 27, 1898. 28. Isern, Del Desastre Nacional, 512–513. 29. Barrio Jala, “El Tratado de Paris.” 30. Isern, Del Desastre Nacional, 513–514. 31. New York Times, “Spain Will Pay the Cuban Debt,” October 28, 1898. In the event, the economic crisis was managed adeptly and overcome relatively quickly

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as the postwar peace triggered a surge in investments, leading to greater exports and an explosion of commercial banking activity that ultimately helped modernize ´ Spain’s financial system. See Pan-Montojo, “El atraso economico,” 289–290. 32. Barrio Jala, “El Tratado de Paris.” 33. Rold´an de Montaud, La Banca de Emisi´on, 182. 34. Benton, International Law and Diplomacy, 257–259. 35. Randolph, “Some Observations,” 353–357. 36. Benton, International Law and Diplomacy, 265–266. 37. The ruling in one case, Downes v Bidwell, 182 US 244, acknowledged the Supreme Court’s own inconsistent treatment of this issue. 38. Sweeney, “Guantanamo and U.S. Law,” 680. 39. Cummins, “Formulation of the ‘Platt’ Amendment,” 379. 40. Ibid., 370–372. Also see American Journal of International Law, “Origin and Purpose of the Platt Amendment,” 585–591. 41. An Act Making Appropriations for the Support of the Army for the Fiscal Year Ending June 30, 1902 (Act of March 2, 1901), 31 Stat 895, Ch 803 (1901). 42. Referred to in some texts as the Constituent Assembly and the Constitutional Convention. The name used here is a translation of the “Convencion Constituyente” used by Machado y Ortega (La Enmienda Platt) and M´arquez Sterling (Proceso Hist´orico). 43. Act Making Appropriations for the Support of the Army for the Fiscal Year Ending June 30, 1902 (Act of March 2, 1901), 31 Stat 895, Ch 803, Para 7 (1901). 44. Lazar, “International Legal Status,” 731, citing a presentation to Congress by Senator Platt on April 27, 1904. 45. M´arquez Sterling, Proceso Hist´orico, 213, 224–225. The meeting was held on April 25, 1901, in Washington. 46. New York Times, “Platt Amendment Rejected,” April 13, 1901. 47. New York Times, “Accept Platt Amendment,” May 29, 1901. 48. New York Times, “The Platt Amendment Is Accepted by Cuba,” June 30, 1901. 49. Sierra, “Timetable History of Cuba.” 50. U.S. Department of State, “The United States, Cuba, and the Platt Amendment.” ´ Las Constituciones de Cuba, 75–82. 51. Lazcano y Mazon, 52. M´arquez Sterling, Proceso Hist´orico, 295–302. 53. Machado y Ortega, La Enmienda Platt, 51. 54. Council on Foreign Relations, Survey of American Foreign Relations 1929, 23– 24. 55. Machado y Ortega, La Enmienda Platt, 47. 56. Council on Foreign Relations, Survey of American Foreign Relations 1929, 23. 57. U.S. Naval War College, International Law Situations 1912, 104, citing U.S. Foreign Relations 1903, 365. 58. Agreement for the lease to the United States of lands in Cuba for coaling and naval stations, Treaty Ser No 418 (1903); Bevans, Treaties and Other International Agreements, vol. 6, 1113–1115. 59. Ibid., 1114. While Article I said the territories were being leased for the purposes of “coaling and naval stations,” Article II authorized preparations for their use as “coaling or naval stations only” [author’s italics]. It became clear when the

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lease was implemented that both the United States and Cuba saw the two uses coexisting. 60. Differences in procedures for executive agreements and treaties in the United States are described in U.S. Library of Congress, Congressional Research Service. Treaties and Other International Agreements: The Role of the United States Senate. 2001. Washington, D.C.: Government Printing Office, 24–40. 61. New York Times, “Naval Stations in Cuba: Agreement with President Palma Signed at Washington,” February 24, 1903. 62. Roig de Leuchsenring, Historia de la enmienda Platt, 449. 63. Lease of certain areas for naval or coaling stations, Treaty Ser No 426 (1903); Bevans, Treaties and Other International Agreements, vol. 6, 1120–1122. 64. The amount of the annual rent was fixed at 2,000 U.S. dollars in the English text and 2,000 pesos in the Spanish text. The implications of this divergence are discussed in Chapter 7. The “$” sign represents both the dollar (in the United States) and the Cuban peso (in Cuba), but in this book it refers only to the dollar, with peso referring to the Cuban currency and to the Spanish colonial peso that preceded it in Cuba. 65. New York Times, “Cuba Offers Naval Station,” November 8, 1903. 66. New York Times, “Transfer of Guantanamo,” November 12, 1903. 67. New York Times, “Flag Raised at Guantanamo,” November 18, 1903. 68. New York Times, “Cuba Offers Naval Station,” November 8, 1903. 69. Roig de Leuchsenring, Historia de la enmienda Platt, 167. 70. Miranda Bravo, Vecinos indeseables, 69–70. 71. Murphy, Varner, and Coze, History of Guantanamo Bay, Ch. 3. 72. Letter from the Cuban Secretary of State to the American Minister in Havana, February 8, 1911, which gives the measurement as 50 caballer´ıas, reproduced in U.S. Department of State, FRUS 1911, 118. 73. Treaty Between the United States and Cuba Embodying the Provisions Defining the Future Relations of the United States with Cuba (Treaty of Relations), 33 Stat 2248, Treaty Ser No 437 (1903). 74. Murphy, Varner, and Coze, History of Guantanamo Bay, Ch. 10, 17. 75. Machado y Ortega, La Enmienda Platt, 48–49. The canal was completed in 1914. 76. New York Times, “Meyer Would Drop Eight Naval Bases,” December 5, 1910. Taft called for expanding Guantanamo Bay in his annual message to Congress on December 6, 1910; see U.S. Department of State, FRUS 1910, XLVII. 77. New York Times, “Naval Stations in Cuba,” February 25, 1903. 78. Machado y Ortega, La Enmienda Platt, 48–49. 79. M´arquez Sterling, Proceso Hist´orico, 430; Machado y Ortega, La Enmienda Platt, 48–49. 80. Letter from the Cuban Secretary of State to the American Minister in Havana, February 8, 1911, reproduced in U.S. Department of State, FRUS 1911, 118. 81. U.S. Department of State, FRUS 1912, XXV. 82. Ibid., 295–297 (the text of the treaty was contained in a message from the American Minister to the secretary of state, December 27, 1912). 83. Letter from the American Minister (American Legation, Havana) to the Secretary of State, January 23, 1913, in U.S. Department of State, FRUS 1913, 353–354.

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84. U.S. Department of State, FRUS 1914, 186–187. 85. New York Times, “Guantanamo as Gibraltar,” January 14, 1913. 86. U.S. Department of the Navy, Public Works of the Navy, 18. The acreage in the 1916 inventory converts to more than 46.3 square miles. The total breaks down into 13,467 acres of “hard land,” 7,133 acres of marsh, and 9,077 acres of water. The inclusion of marshland as a separate measure probably accounts for the reduction in water acreage compared to 1903; Murphy, Varner, and Coze noted that in the years after the 1903 survey, “there has been occasional misunderstanding of what constitutes the water areas of the Naval Reservation.” Murphy, Varner, and Coze, History of Guantanamo Bay, Ch. 3. In 2008 the officer in charge of public works at Guantanamo Bay, Commander Jeff Johnston, raised the possibility that inadvertent changes in the marked boundary may have occurred over the years in the course of maintaining and replacing the perimeter fencing (conversation with the author, Naval Station Guantanamo Bay, January 11, 2008). 87. For a discussion of measurement techniques used by the U.S. government at the time, see Dracup, “Geodetic Surveys in the United States.” 88. Their data do not agree exactly. The United States puts the area at 28,817 acres, or 45.0 square miles; see U.S. Department of Defense, “Base Structure Report,” DOD-78 and NAVY-19. Cuba reports it as 11,760 hectares, against the 11,662 hectares in the 1903 survey; see Cuba Ministerio de Relaciones Exteriores, “Statement by the Government.” The Cuban measurement, which equals 45.4 square miles, is published in various state documents dated 2002. 89. Machado y Ortega, La Enmienda Platt, 51. 90. Council on Foreign Relations, Survey of American Foreign Relations 1929, 24. 91. M´arquez Sterling, Proceso Hist´orico, 432, citing a memorandum by the author dated April 30, 1934, that reflected contents of his Confidential Note No. 49 of April 18, 1934, to the Cuban Chancellery. The author was then Cuba’s ambassador to the United States. 92. Roig de Leuchsenring, Historia de la enmienda Platt, 291–292. 93. Murphy, Varner, and Coze, History of Guantanamo Bay, Ch. 17. Murphy, who authored the chapter cited, was commander of the base from 1950 to 1952. 94. Roig de Leuchsenring, Historia de la enmienda Platt, 292. He explains that the Cuban government may not necessarily have been aware of property transactions between individual owners and the U.S. government. 95. The Convention relating to the Persian Gulf and Surrounding Territories, signed in May 1913. 96. Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, 2001 ICJ Rep 40, 68. For a discussion of this ruling, see Reisman, “Unratified Treaties,” 731–735. 97. Bradley, “Unratified Treaties,” 314–315. 98. Treaty of Relations, 48 Stat 1682, Treaty Ser No 866 (1934); Bevans, Treaties and Other International Agreements, vol. 6, 1161–1162. Also see M´arquez Sterling, Proceso Hist´orico, 425–444. 99. Roig de Leuchsenring, Historia de la enmienda Platt, 292. 100. U.S. Department of State, FRUS 1934, 185; also see Lazar, “International Legal Status,” 737.

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101. Sources vary in describing the total length of the aqueduct. Miranda Bravo describes it as six miles long, presumably referring to the part outside the boundary of Guantanamo Bay; see Miranda Bravo, Vecinos indeseables, 84. Murphy, Varner, and Coze report that the intake point on the Yateras River was eleven miles from the main part of the leased territory; see Murphy, Varner, and Coze, History of Guantanamo Bay, Ch. 10. 102. Murphy, Varner, and Coze, History of Guantanamo Bay, Ch. 10. 103. Miranda Bravo, Vecinos indeseables, 83–84. 104. Woolsey, “The New Cuban Treaty,” 533. 105. “There is no mentioning in the treaty of Bah´ıa Honda, with the effect of completely excluding it as a possible base.” Danwall, “Guantanamo Bay,” 15. Also, “[T]he Americans did not expressly renounce the Base at Bah´ıa Honda: they simply abandoned it.” Miranda Bravo, Vecinos indeseables, 78. 106. U.S. Department of the Navy, Public Works of the Navy; also see U.S. Department of Defense, “Base Structure Report.” CHAPTER 4 1. Lautenschlager, “Technology and the Evolution,” 8–11. 2. Dahl, “Naval Innovation,” 51. 3. Lautenschlager, “Technology and the Evolution,” 11–12. 4. U.S. Department of the Navy, “The U.S. Navy in Hawaii.” 5. New York Times, “A Great Need of the Navy: Coaling Stations Required in Certain Localities,” December 6, 1891. 6. New York Times, “Our Naval Stations,” September 24, 1891. 7. Hayes, “War Plans and Preparations.” 8. Murphy, Varner, and Coze, History of Guantanamo Bay, Ch. 11. 9. DeNovo, “Petroleum and the United States Navy,” 644; Shulman, “Science Can Never Demobilize,” 368. 10. Shulman, “Science Can Never Demobilize,” 372. 11. DeNovo, “Petroleum and the United States Navy,” 648. 12. U.S. Department of the Navy, Public Works of the Navy, 19. This publication reports the storage capacity of the coaling station as 20,000 tons, down from the 1906 figure of 25,000 tons reported by Murphy, Varner, and Coze in History of Guantanamo Bay, Ch. 11. The capacity of the oil storage tanks was equivalent to 212,000 barrels, a very large amount relative to U.S. production levels at the time. 13. Murphy, Varner, and Coze, History of Guantanamo Bay, Ch. 11. 14. The U.S. Navy eliminated the job of “coal passer” in 1917, citing the dominance of oil by that time. See U.S. Department of the Navy, “Ratings and the Evolution of Jobs.” 15. Shulman, “Science Can Never Demobilize,” 372–380. 16. California State Military Museum, “Naval Net Depot, Tiburon.” 17. Murphy, Varner, and Coze, History of Guantanamo Bay, Ch. 6. 18. Construction of the oil tanks did not occur until 1913. See Murphy, Varner, and Coze, History of Guantanamo Bay, Ch. 11. 19. U.S. Naval War College, International Law Situations 1912, 97. 20. It has been said about hydrocarbon fuels that they are intimately related and that the difference “is only one of degree.” Colby, “The Law of Oil and Gas,” 250.

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21. Frye, “Fuel Summit Held,” 26. 22. Sweeney, “Guantanamo and U.S. Law,” 722–723. 23. U.S. Department of the Navy, Public Works of the Navy. 24. Agreements between states pertaining to military bases and base-related sites show there is no standard international terminology to describe them. See Woodliffe, Peacetime Use of Foreign Military Installations, 29–34. 25. U.S. Department of the Navy, “General Order No. 135.” 26. U.S. Department of the Navy, Naval District Manual. 27. An operation for manufacturing, laying, and maintaining large underwater anti-submarine and anti-torpedo nets made of steel wire. 28. Murphy, Varner, and Coze, History of Guantanamo Bay, Ch. 12. 29. Ibid., Ch. 18. 30. Author’s telephone conversation with Bill Dougherty, Deputy Public Affairs Officer, Navy Region Southeast, March 25, 2008. 31. Kathleen T. Rhem, “Guantanamo Bay Has Storied Past,” American Forces Press Service News Articles, U.S. Department of Defense, August 24, 2004. 32. Author’s telephone conversation with Bill Dougherty, Deputy Public Affairs Officer, Navy Region Southeast, March 25, 2008. 33. Ibid. 34. Woodliffe, Peacetime Use of Foreign Military Installations, 30, 32. 35. Murphy, Varner, and Coze, History of Guantanamo Bay, Ch. 7, 11, 12, 13, 15; Pomfret, History of Guantanamo Bay, Ch. 1. 36. Murphy, Varner, and Coze, History of Guantanamo Bay, Ch. 8. 37. Ibid., Ch. 9. 38. Ibid., Ch. 9. 39. U.S. Coast Guard, “FAQs from the Historian’s Office.” 40. M. Sullivan, “Cuba: Issues for the 109th Congress,” 40. 41. U.S. Department of the Navy, “United States Naval Base, Guantanamo Bay.” 42. U.S. Joint Chiefs of Staff, “Ideas in Support of Project.” 43. Kathleen T. Rhem, “From Mayberry to Metropolis: Guantanamo Bay Changes,” American Forces Press Service News Articles, U.S. Department of Defense, March 3, 2005. The population of Guantanamo Bay, which has fluctuated widely depending on activities at different times in its history, includes military and civilian personnel and dependents, as well as asylum seekers and detainees held there. 44. Kathleen T. Rhem, “Guantanamo Bay Has Storied Past,” American Forces Press Service News Articles, U.S. Department of Defense, August 24, 2004. 45. Ibid. Rhem, citing commander Captain Les McCoy, notes that 3,500 Cubans commuted to employment at Guantanamo Bay in 1959. 46. Conversation with Bruce Lloyd, Public Affairs Officer, Naval Station Guantanamo Bay, January 12, 2008. 47. Kathleen T. Rhem, “Guantanamo Bay Has Storied Past,” American Forces Press Service News Articles, U.S. Department of Defense, August 24, 2004. 48. See, e.g., U.S. Department of Defense (2007), “Guantanamo Detainee Processes.” 49. New York Times, “Cuba Assails Clinton on Guantanamo Detentions,” August 21, 1994. 50. U.S. Department of State, “U.S. Policy on Haitian Refugees.” 51. Preeg, The Haitian Dilemma, 60.

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52. Ibid., 116. 53. Ibid., 116. 54. Larry Rohter, “U.S. Starts the Return of Haitians From Guantanamo,” New York Times, January 7, 1995. 55. U.S. Department of State, “Cuban Refugees.” 56. Donna Miles, “Gitmo’s On Call to Support Kosovar Refugees.” American Forces Press Service News Articles, U.S. Department of Defense, April 21, 1999. 57. Sartori, “The Cuban Migration Dilemma,” 348. 58. Philip Shenon, “Crisis in the Balkans: The Haven—U.S. Chooses Guantanamo Bay Base in Cuba for Refugee Site,” New York Times, April 7, 1999. 59. Donna Miles, “Gitmo’s On Call to Support Kosovar Refugees.” American Forces Press Service News Articles, U.S. Department of Defense, April 21, 1999. 60. Sarah Stannard, “Guantanamo Migrant Operations Facility Will Assist Refugees in Distress,” Joint Task Force Guantanamo, News, October 3, 2007. 61. Sartori, “The Cuban Migration Dilemma,” 337. 62. Ibid., 347. 63. The Joint Task Force mission at Guantanamo Bay. 64. Sartori, “The Cuban Migration Dilemma,” 347. 65. Haitian Refugee Center, Inc. v Baker, 953 F2d 1498, 1512 (11th Cir 1992). 66. Sweeney, “Guantanamo and U.S. Law,” 723. 67. Joint Task Force Guantanamo, “Community.” 68. Joint Task Force Guantanamo, “Mission.” 69. Murphy, Varner, and Coze, History of Guantanamo Bay, Ch. 9. 70. Ibid., Ch. 4. 71. Maris, “International Law and Guantanamo,” 267. 72. Ibid., 267–268. 73. Lloyd, “Looking for Heimer Ranch.” 74. An apparent reference to the Feb. 16/23 executive agreement. 75. U.S. Department of State, FRUS 1921, 808–809. 76. Ibid., 809–810. 77. Ibid., 814–815. 78. Maris, “International Law and Guantanamo,” 268. 79. Weinert, “New Turf;” Joint Task Force Guantanamo, “April 2008 Featured Photos.” 80. E.g., when an employee of a private-sector contractor at Guantanamo Bay buys a meal at the McDonald’s outlet there. 81. U.S. General Services Administration, “Contract Award.” The contract included options that could extend it for two more years. 82. Maris, “International Law and Guantanamo,” 267, 270. CHAPTER 5 1. Similarities between the U.S. leases of Guantanamo Bay from Cuba and the Canal Zone from Panama have caused them to be viewed as substantively identical from the perspective of U.S. municipal law, although differences in the leases raised questions about whether each was to be considered a U.S. “possession” in regard to tariff and labor laws affecting territories where the United States had

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control but not sovereignty. See Green, “Applicability of American Laws,” 789– 793. For a broader discussion on this matter, see Thomas L. Waterbury, “Statutory Construction.” 2. The difficulty in resolving these issues is seen, for example, with China’s leases of Wei-hai Wei to Great Britain (1898), Kiaochow to Germany, and Port Arthur to Russia at the end of the nineteenth century. “There have been frequent conflicts and differences of opinion on the subject of the exercise of jurisdiction. The general result has been favorable to the exercise of full power in the leased territory by the lessee as against third states. The principle upon which decisions have been made is that the grant of a specific right carries with it the privilege of such action as is necessary for the exercise of the right.” U.S. Naval War College, International Law Situations 1907, 15–16. 3. Capell`a i Roig, “El estatuto jur´ıdico de Guant´anamo,” 773. 4. U.S. Naval War College, International Law Situations 1907, 18. 5. Downes v Bidwell, 182 US 244, 257–259 (1901). 6. Maris, “International Law and Guantanamo,” 270–272. 7. Ibid., 271. 8. U.S. Defense Base Act, 42 USC § 1651 et seq (1941). 9. Longshoremen’s and Harbor Workers’ Compensation Act, 33 USCA § 901 et seq (1927). 10. Maris, “International Law and Guantanamo,” 271. 11. Neuman, “Anomalous Zones,” 1228. 12. Vermilya-Brown Co. v Connell, 335 US 377 (1948). 13. Cobb v United States, 191 F2d 604, 611–612 (9th Cir 1951). 14. Federal Tort Claims Act, 28 USC § 2671 et seq (1946). 15. United States v Corey, 232 F3d 1166 (9th Cir 2000). 16. Hawkins, “Up Guantanamo Without a Paddle,” 1256–1257. 17. Cited in Maris, “International Law and Guantanamo,” 272. 18. Special maritime and territorial jurisdiction of the United States defined, 18 USC § 7 (3). 19. Paust, “Non-Extraterritoriality,” 313–314. 20. Haitian Centers Council, Inc. v McNary, 969 F2d 1326 (2d Cir 1992). 21. Paust, “Non-Extraterritoriality,” 327–328. 22. Azmy, “Constitutional Implications,” 386. 23. Hawkins, “Up Guantanamo Without a Paddle,” 1268. 24. H. Lauterpacht, ed., Annual Digest and Reports, 112–113. 25. Capell`a i Roig, “El estatuto jur´ıdico de Guant´anamo,” 781. 26. Immigration and Nationality Act, Pub L No 82–414, 66 Stat 163 (1952), codified at 8 USC. 27. Neuman, “Anomalous Zones,” 1229. 28. 8 USC § 1101 (a)(38). 29. Haitian Refugee Center, Inc. v Baker, 789 F Supp 1552, 1573 (S D Fla 1991). 30. Haitian Refugee Center, Inc. v Baker, 953 F2d 1498, 1510 (11th Cir 1992). 31. Immigration and Naturalization Service. 32. Immigration and Nationality Act. 33. Haitian Centers Council, Inc. v McNary, 969 F2d 1326, 1342–1344 (2d Cir 1992).

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34. Cuban American Bar Association, Inc. v Christopher, 43 F3d 1412, 1424–1425 (11th Cir 1995). 35. Bird v United States, 923 F Supp 338, 342–343 (D Conn 1996). 36. Ibid., 343. 37. Yoo, War by Other Means, 142. 38. Ibid., 142–143. 39. Rasul v Bush, 542 US 466, 470 (2004). 40. Johnson v Eisentrager, 339 US 763 (1950). 41. Rasul v Bush, 215 F Supp 2d 55, 68 (D DC 2002). 42. Al Odah v United States, 321 F3d 1134, 1144 (DC Cir 2003), quoting Johnson v Eisentrager. 43. Ibid., 1144. 44. Ibid., 1140. 45. Rasul v Bush, 542 US 466, 476 (2004). 46. Gherebi v Bush, 352 F3d 1278, 1285–1290 (9th Cir 2003). 47. This wording is illustrative of the similarity attached by U.S. courts to both the Guantanamo Bay lease and that of the Canal Zone in Panama, which granted to the United States “all the rights, power and authority . . . which the United States would possess and exercise if it were the sovereign of the territory.” Convention for the Construction of a Ship Canal to Connect the Waters of the Atlantic and Pacific Oceans (Hay-Bunau-Varilla Treaty), 33 Stat 2234, Treaty Ser No 431, Art III (1903). 48. Here the court cites Webster’s Third New International Dictionary. 1976. Springfield, Mass.: Merriam-Webster, 2479. 49. Gherebi v Bush, 352 F3d 1278, 1290–1294. 50. Ibid., 1295. 51. “soberan´ıa definitiva.” 52. Rasul v Bush, 542 US 466, 480–482 (2004). 53. Military Commissions Act, Pub L No 109–366, 120 Stat 2600 (2006), codified at portions of 10, 18, 28, 42 USC. 54. Ibid., § 7. 55. Azmy, “Constitutional Implications,” 400–401. 56. William Glaberson, “In Shift, Justices Agree to Review Detainees’ Case,” New York Times, June 30, 2007. 57. Boumediene v Bush, 128 S Ct 2229 (2008). 58. Ibid., 2252–2253. 59. Ibid., 2258–2259. 60. Ibid., 2260–2261. 61. Neuman, “The Extraterritorial Constitution,” 47. 62. In addition to states that have passed through the entire creation-toextinction life span, this includes some states created before 1903 that no longer exist, and states created after 1903 that are currently in existence. 63. Raustiala, “The Geography of Justice,” 2543. 64. Ibid., 2544. 65. Saito, From Chinese Exclusion to Guantanamo Bay, 156–165. 66. Saito, “The Plenary Power Doctrine,” 1174. 67. Wilde, “Legal ‘Black Hole’?” 798–799. 68. Brownlie, Principles of Public International Law, 309.

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69. Ibid., 310. 70. Cuba Ministerio de Relaciones Exteriores, Guantanamo: Base Naval Yankee, 43; U.S. Joint Publications Research Service, Guantanamo: Yankee Naval Base, 26. This view has been consistently put forth over the years; see, e.g., Cuba Ministerio de Relaciones Exteriores, “Statement by the Government.” The ministry produced the 1970 publication in French and Spanish; the translation into English by the U.S. government was done in 1977. Direct quotations from the publication in this book are from this English translation. 71. Kathleen T. Rhem, “From Mayberry to Metropolis: Guantanamo Bay Changes,” American Forces Press Service News Articles, U.S. Department of Defense, March 3, 2005. 72. Convention (IV) respecting the Laws and Customs of War on Land (“Hague Regulations”), Annex art 42, 36 Stat 2277, 205 Consol T Ser 277 (1907). 73. For example, with the Ottoman Empire’s lease of Cyprus to Great Britain. 74. For example, with the leases of Chinese territory to Great Britain, Germany, France, and Russia at the end of the nineteenth century. 75. V´ali, Servitudes of International Law, 273. 76. Convention of Defensive Alliance between Great Britain and Turkey (Cyprus Convention), Art 1, 68 British and Foreign State Papers 744 (1878). 77. See American Journal of International Law, “Convention between Russia and China,” 289–291. 78. Convention between Great Britain and China for the Lease of Wei-hai Wei. See ibid., 297–298. 79. Agreement for the lease to the United States of lands in Cuba for coaling and naval stations, Treaty Ser No 418 (1903), Art III. 80. Young, International Legal Status of Kwantung, 131–132. 81. Ibid., 134–135. 82. Yang, Les territories a` bail, 89–90. 83. Hague Regulations, Annex art 43, 36 Stat 2277, 205 Consol T Ser 277. 84. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art 70, 77, 6 UST 3516, TIAS No 3365 (1949). 85. Thienel, “The ECHR in Iraq,” 125–126. 86. Hamdan v Rumsfeld, 546 US 557 (2006). 87. Ex parte Quirin, 317 US 1 (1942). 88. Lamson, Hamdan v Rumsfeld,” 510. 89. Murphy, Varner, and Coze, History of Guantanamo Bay, Ch. 3. 90. International Covenant on Civil and Political Rights, 999 UNTS 171 (1966). 91. Dennis, “Application of Human Rights Treaties,” 462–464. CHAPTER 6 1. Yang, Les territories a` bail, 148–149. 2. Cuba Ministerio de Relaciones Exteriores, Guantanamo: Base Naval Yankee, 42; U.S. Joint Publications Research Service, Guantanamo: Yankee Naval Base, 25. 3. Koh, “America’s Offshore Refugee Camps,” 143. 4. Neil A. Lewis, “Traces of Terror: The Prisoners; Judge Rebuffs Detainees at Guantanamo.” New York Times, August 1, 2002.

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5. Kathleen T. Rhem, “Guantanamo Bay Has Storied Past,” American Forces Press Service News Articles, U.S. Department of Defense, August 24, 2004. 6. Johns, “Annihilation of the Exception,” 616. 7. U.S. Library of Congress, “Places in the News: Cuba.” 8. Brief for Petitioners, Al Odah v United States, No 03–343, ∗ 9 (filed January 14, 2004) (available on Findlaw, http://supreme.nytimes.findlaw.com/ supreme court/briefs/03–343/03–343.mer.pet.pdf). 9. Supreme Court of the United States, “Oral Argument of John J. Gibbons.” 10. United States v Spelar, 338 US 217 (1949). 11. Bird v United States, 923 F Supp 338, 341. 12. Reid, International Servitudes, 19. 13. Lang, “L’Evolution de la notion,” 13. 14. Sweeney, “Guantanamo and U.S. Law,” 720–721. 15. Miranda Bravo, Vecinos indeseables, 73. 16. Brief Amicus Curiae of Retired Military Officers in Support of Petitioners, Boumediene v Bush, No 06–1195, 06–1196, ∗ 23 (filed August 2007). 17. Strauss, “The Viability of Territorial Leases,” 123–133. 18. Maris, “International Law and Guantanamo,” 263. 19. G´erard, Cessions d´eguis´ees, ii–iv; Perrinjaquet, Cessions temporaires, 365. 20. The British territorial lease negotiator Lord Curzon noted that “the tendency of leases is from being temporary to become permanent, and, in fact, constitute a rudimentary form of ulterior possession.” Curzon, “Romanes Lecture.” 21. U.S. Department of State, “Political Program.” 22. The United States had implemented a partial trade embargo against Cuba on October 19. 23. Secretary-General. 24. U.S. Department of State, “Draft U.N. Security Council Resolution.” 25. U.S. Department of State, “Tactics in U.N. Security Council.” 26. U.S. National Security Council, “Minutes of the 505th Meeting.” 27. U.S. Joint Chiefs of Staff, “Points to be Considered.” 28. Letter from Cuba’s permanent representative to the UN Secretary General, October 28, 1962, reproduced in Chang and Kornbluth, The Cuban Missile Crisis, 241–242. 29. Summary by Adlai E. Stevenson of UN Secretary General U Thant’s account of meetings with Fidel Castro, reproduced in Chang and Kornbluth, The Cuban Missile Crisis, 249–251. 30. U.S. Department of State, “U.S-Soviet Negotiations;” Russian Federation Archive of Foreign Policy, “Soviet Record of 1 November 1962 Dinner Conversation.” 31. Soviet Union Embassy in Cuba, “Memorandum of Conversation.” 32. Ibid. 33. U.S. Department of State, “Text of Soviet and Cuban Proposed Protocol.” 34. U.S. Department of State, FRUS 1961–63. See Document 213 (Memorandum from the Assistant Secretary of State for International Organization Affairs [Cleveland] to Secretary of State Rusk, November 28, 1962: “Mikoyan mentioned Guantanamo, indicating he did not expect us to withdraw right away but thought it would be reasonable for us to set a time at which we would begin to negotiate about withdrawal.”); Document 220 (Telegram from the Department of State to the

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Embassy in the Soviet Union, November 30, 1962: “Supporting Castro proposals, [Mikoyan] argued US need not at once abandon Guantanamo but should enter into negotiations with Cubans about its disposition.”); Document 223 (Telegram from the Mission to the United Nations to the Department of State, December 3, 1962: “[Soviet Deputy Foreign Minister Vasiliy Vasilevich] Kuznetsov repeated very briefly Sov support of Castro points included in protocol, mentioning specifically only economic blockade and Guantanamo.”). 35. Cuban Liberty and Democratic Solidarity (Libertad) Act (Helms-Burton Act), Pub L 104–114, 110 Stat 785 (1996). 36. Its sponsors were Sen. Jesse Helms (Republican, N.C.) and Rep. Dan Burton (Republican, Ind.). 37. Helms-Burton Act § 201, 110 Stat 785. 38. “Once Cuba has a transition government—that is, a government committed to the establishment of a fully democratic, pluralistic society—the United States will be prepared to begin normalizing relations and provide assistance to support Cuba’s transition. Economic sanctions will be suspended and negotiations will be initiated to promote bilateral trade relations. To normalize relations fully with a democratic government in Cuba, the United States is also prepared to enter into negotiations to either return the Naval Base at Guantanamo to Cuba or to renegotiate the present agreement under mutually agreeable terms.” U.S. Department of State, “Support for a Democratic Transition.” 39. Available at http://www.cafc.gov/rpt/. 40. Carol J. Williams, “At Guantanamo, a Cross-the-Fence Chat,” Los Angeles Times, October 20, 2006, citing Caleb McCarry, Cuba Transition Coordinator, U.S. Department of State. 41. Arie David has noted that military bases located on the territory of an antagonistic state usually take on a symbolic value that is much greater than their military usefulness; cited in Woodliffe, Peacetime Use of Foreign Military Installations, 304. Although David notes that termination of such bases involves a loss of face, the Helms-Burton law averts this by calling for a democratic, and presumably friendly, Cuban government to be in place before negotiations on the future of the Guantanmo Bay lease occur. 42. Agreement for the lease to the United States of lands in Cuba for coaling and naval stations, Art I, Treaty Ser No 418 (1903). 43. Miranda Bravo, Vecinos indeseables, 158. 44. Maris, “International Law and Guantanamo,” 279–281. 45. Zayas, “The Status of Guantanamo Bay,” 26–27. 46. Montague, “Brief Study,” 481–484. 47. Miranda Bravo, Vecinos indeseables, 114. 48. Vienna Convention on the Law of Treaties, 1155 UN Treaty Ser 331, Art 42.2 (1969). 49. Vienna Convention on the Law of Treaties, 1155 UN Treaty Ser 331, Art 62 (1969). 50. Woodliffe, Peacetime Use of Foreign Military Installations, 303–304. 51. Garner, “The Doctrine of Rebus Sic Stantibus,” 513. 52. Oppenheim, International Law, 371–372. 53. Ibid., 691. 54. Yang, Les territories a` bail, 159.

276

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55. Montague, “Brief Study,” 486. 56. U.S. Department of State, “Guantanamo Base.” 57. United Nations Office of Legal Affairs, “Note on the United States Naval Station.” 58. Helfer, “Exiting Treaties,” 1644. 59. Lazar, “International Legal Status,” 738–740. He concluded that the lease exists only at the level of municipal law (with the 1903 arrangements making Cuba the title holder and the United States the lessee of property on territory where the United States has sovereignty), and that Cuba’s “ultimate sovereignty” over Guantanamo Bay refers to a future time when the United States no longer occupies the territory. 60. Powers, “Caribbean Leased Bases Jurisdiction,” 161. 61. Potter, “The Doctrine of Servitudes,” 639–640. 62. Nguyen Quoc, Daillier, and Pellet, Droit international public, 201. 63. Vienna Convention on the Law of Treaties, 1155 UN Treaty Ser 331, Art 52 (1969). 64. Malanczuk, Akehurst’s Modern Introduction, 139–140. 65. United Nations Office of Legal Affairs, “Note on the United States Naval Station.” 66. Schwelb, “Some Aspects of International Jus Cogens,” 966. 67. Vienna Convention on the Law of Treaties, 1155 UN Treaty Ser 331, Art 4 (1969). 68. Zayas, “The Status of Guantanamo Bay,” 19. 69. Malanczuk, Akehurst’s Modern Introduction, 140. 70. Vienna Convention on the Law of Treaties, 1155 UN Treaty Ser 331, Art 64 (1969). 71. Zayas, “The Status of Guantanamo Bay,” 24–25. 72. Vienna Convention on the Law of Treaties, 1155 UN Treaty Ser 331, Art 60 (1969). 73. In view of the informality of the terminology for military installations at the international level, it is possible that Cuba did not consider the term “naval station” as narrowly as the U.S. Navy defines it for its internal use. 74. Laly-Chevalier, La violation du trait´e, 126. 75. Ibid., 138. 76. Montague, “Brief Study,” 474. 77. Ibid., 475. 78. Zayas, “The Status of Guantanamo Bay,” 27. 79. Ibid., 27. 80. Helfer, “Exiting Treaties,” 1593. 81. Vienna Convention on the Law of Treaties, 1155 UN Treaty Ser 331, Art 56.1 (1969). 82. Woodliffe, Peacetime Use of Foreign Military Installations, 291. 83. Sandars, America’s Overseas Garrisons, 303–304. 84. Ibid., 313; also see Woodliffe, Peacetime Use of Foreign Military Installations, 323–324. 85. These assessments include one in 1979 by the Congressional Research Service, which said that Guantanamo Bay “has military value but is not indispensable.” See Sandars, America’s Overseas Garrisons, 145.

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86. White House Press Office, “Executive Order—Review and Disposition.” 87. Sorenson, Military Base Closure, 113. 88. See Defense Base Closure and Realignment Act, Pub L 101–510, 104 Stat 1808 (1990), codified as amended at 10 USC § 2687 (1999). CHAPTER 7 1. The Spanish-language text of the lease specified 2,000 pesos payable in U.S. gold currency. ´ Castro by Vi2. Cuba Council of State’s transcript of an interview of Raul vian Sequera, Associated Press, January 19, 2002, reproduced in Cuban Armed Forces Review, http://www.cubapolidata.com/cafr/news/2002-1.html#3. Castro was quoted as saying: “In Cuba during the U.S. occupation, there were places where you could buy a hectare of land for 10 U.S. cents.” 3. This includes the water portion of the territory, and uses the 1903 measurement of Guantanamo Bay’s total area, i.e., land plus water, as 28,817 acres (11,662 hectares). 4. U.S. Department of the Navy, Public Works of the Navy. 5. This includes the water portion of the territory, and uses the 1916 report of Guantanamo Bay’s total area as 29,667 acres (12,006 hectares). See ibid., 18. 6. New York Times, “New Naval Station in Cuba,” October 4, 1903. 7. Miranda Bravo, Vecinos indeseables, 70. 8. New York Times, “Naval Station in Cuba,” March 25, 1903. 9. New York Times, “Would Sell Cuban Estate,” April 4, 1909. 10. Federal Reserve Bank of Richmond, “FAQs: Currency and Coin.” It notes that with the dollar no longer freely convertible into gold, “one could consider that the United States was no longer on the gold standard at that time,” although it might also be argued that the complete end of U.S. dollar convertibility into gold in 1971 was also an abandonment of the gold standard. 11. Exec Ord 6260 (1933). 12. U.S. Department of State, Cable of May 18, 1973. Some sources, including the U.S. Navy’s Guantanamo Bay Web site, erroneously report the change in the form and amount of rental payments in 1934 as resulting from the treaty of the same year, which reconfirmed the lease. Sometimes the revised dollar amount is also misreported: “A 1934 treaty, reaffirming the lease, granted Cuba and her trading partners free access through the bay, modified the lease payment from $2,000 in gold coins per year, to the 1934 equivalent value of $4,085 U.S. Treasury dollars, and added a requirement that termination of the lease requires the consent of both the U.S. and Cuba governments, or the U.S. abandonment of the base property.” U.S. Department of the Navy, “History of Guantanamo Bay.” Such errors have been replicated in articles and other publications. 13. Joint Resolution to Suspend the Gold Standard and Abrogate the Gold Clause, H J Res 192, 73d Cong, 1st Sess (June 5, 1933). 14. Kuhn, “The Gold Clause,” 313–314. 15. For a discussion of the constitutional issues, see Nussbaum, “Comparative and International Aspects,” 58–65. 16. Bronson v Rodes, 74 US 229, 250 (1868). For commentary, see Nebolsine, “The Gold Clause,” 1061–1090.

278

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17. Nussbaum, “Comparative and International Aspects,” 69. 18. Ibid., 86. 19. Feist v Soci´et´e Intercommunale Belge d’Electricit´e, 150 Times Law Rep 41 (1933). 20. American Journal of International Law, “Feist, Appellant,” 380. 21. Green, “Applicability of American Laws,” 792. 22. The difference indicates that political rather than legal factors dominated the decision; a sense of legal obligation would have resulted in the same treatment for both rental payments. The U.S. attempt to pay Panama at parity showed, moreover, that the United States had not embraced the recent international decisions about the gold clause as international law, although its effective compliance with those decisions in the case of Guantanamo Bay showed it was not closed to the idea. 23. Convention for the Construction of a Ship Canal to Connect the Waters of the Atlantic and Pacific Oceans (Hay-Bunau-Varilla Treaty), 33 Stat 2234, Treaty Ser No 431, Art XIV (1903). The rent was specified as $250,000 in U.S. gold coin. According to Mathews, “The United States government, in view of domestic legislation taking this country off the gold standard and devaluing the dollar, tendered the fiscal agent of the Panama government a check for 250,000 of such depreciated dollars. That government promptly returned the checks and demanded gold.” Mathews, “Roosevelt’s Latin-American Policy,” 805. 24. General Treaty of Friendship and Cooperation (Hull-Alfaro Treaty), 53 Stat 1818, Treaty Ser No 945, Art 7 (1936), accompanied by an exchange of notes on the monetary aspect. 25. U.S. Department of State, Cable of May 18, 1973 26. U.S. Department of State, Cable of May 8, 1974. 27. A revaluation is an upward revision in the value of a currency. 28. U.S. Department of State, Memorandum from the Office of the Solicitor. 29. Castro Ruz, “The Empire and the Independent Island.” Castro’s title had changed from prime minister to president in 1976. He wrote this article after hand´ Castro, due to illness, although he foring over official duties to his brother, Raul mally remained president until his resignation in early 2008. 30. P´erez, Jr., “Politics, Peasants, and People of Color,” 517–520. 31. Treaty of Mutual Understanding and Cooperation between the United States of America and the Republic of Panama, 6 UST 2273, TIAS No 3297, Art 1 (1955). 32. This still did not prevent the amount, which reflected the territory’s true economic value when the lease was agreed on in 1856, from eventually becoming a token amount, as the adjustments did not keep pace with land values. See Strauss, “The Viability of Territorial Leases,” 175–176, 185–187. 33. Gamble and Ku, “The Choice of Language.” 34. In the Spanish text, the first paragraph of Article 1 reads: “Los Estados ´ Unidos de Am´erica acuerdan y estipulan pagar a la Republica de Cuba la suma anual de dos mil pesos en moneda de oro de los Estados Unidos durante todo el tiempo que e´ stos ocuparen y usaren dichas a´ reas de terreno en virtud del men´ cionado convenio” Republica de Cuba, Colecci´on Legislativa: Secretar´ıa de Estado y Justicia, 202. 35. Mascaros, “La moneda y la banca,” 22.

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´ 36. Ley de Defensa Economica (1914). 37. The currency used in Spain itself had become the peseta in 1868, and upon its creation it was given parity with the French franc. See Jim´enez Jim´enez, “El nacimiento de una moneda,” 28–44. 38. Wallich, Monetary Problems, 32–33. 39. The third paragraph of the order stated: “It is further ordered that on and after Jan. 1, 1899, and until further provided, the following Spanish silver coins now in circulation in the island of Cuba shall be received for customs, taxes, public and postal dues at the following fixed rates in American money: The peso, 60 cents; the medio peso, 30 cents; the peseta, 12 cents, the real, 6 cents; the medio real, 3 cents.” New York Times, “Cuban Coin Values Fixed,” December 30, 1898. 40. Crandall, Treaties, 389–394. 41. Ibid., 389, quoting a communication from Hay to Bellamy Storer, U.S. Minister Plenipotentiary to Spain. 42. Cuba is a party to the Vienna Convention, whereas the United States is not. Both states generally consider it to reflect customary international law. U.S. Department of State, “Vienna Convention on the Law of Treaties.” 43. Crandall, Treaties, 389. 44. “Exact equivalents are not often found in different languages and thus perfect translations can rarely be made.” Shelton, “Reconcilable Differences?” 618. 45. Mascaros, “La moneda y la banca,” 23. 46. Wallich, Monetary Problems, 34. 47. The dollar/peso parity was maintained after the United States stopped using gold dollars. Had gold dollars remained in use in 2005, the peso’s revaluation would have resulted in the U.S. payment of 2,000 gold dollars equaling 1,851 pesos. 48. Boadle, “Update 1—Cuba’s Raul Castro says studying peso revaluation,” Reuters, February 24, 2008. 49. General Treaty of Friendship and Cooperation, 53 Stat 1818, Treaty Ser No 945, Art 7 (1936), accompanied by an exchange of notes on the monetary aspect. 50. This office no longer exists. See Miranda Bravo, Vecinos indeseables, 85; Castro Ruz, “The Empire and the Independent Island.” 51. Author’s conversation with Commander Jeff Johnston, public works officer, Naval Station Guantanamo Bay, January 11, 2008. 52. The U.S. Interests Section is officially part of the Swiss embassy; see U.S. Department of State, “The U.S. Interests Section.” Prior to the creation of the U.S. Interests Section in 1977, the U.S. Treasury checks were issued through the U.S. Embassy in Paris and sent to the U.S. Embassy in Bern, from where they were forwarded to the Swiss Embassy in Havana and onward to the Cuban government. See, among others, U.S. Department of State, Cable of May 18, 1973. 53. Miranda Bravo, Vecinos indeseables, 85; Castro Ruz, “The Empire and the Independent Island.” 54. Embassy of Cuba in the United Kingdom, “Facts about the U.S. Naval Base at Guantanamo.” 55. Telephone interview with the author, December 20, 2006. The official spoke “on background” (information is provided on the condition that the source is not named) and agreed to be identified with the wording used here. See Strauss, “Guantanamo Bay and the Evolution of International Leases,” 506.

280

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56. Because territorial leases between states derive from leases in private law, it follows that the methods of putting them into practice also emulate their private law counterparts. 57. Barnet v Smith, 30 NH 256, 1855 WL 2603 (1855). Rapalje also cites a case that provides the rationale: “A tax-payer gave his check for his taxes to the collector. It was not presented for several days, and meantime the bank failed. The bank was insolvent when the check was drawn, and it was not shown that the check would have been paid if promptly presented. Held, that the check was not payment. Koones v District of Columbia, 54 R 278.” Rapalje, A Digest of Decisions, 2667. 58. Strong v King, 35 Ill 9, 1864 WL 3019 (1864). 59. “In the absence of any express agreement to the contrary, the mere receipt of a check will not operate as a discharge of the original debt. Taylor v Wilson, II Met (Mass.) 44. An actual payment of the check is necessary. Sage v Burton, 84 Hun (N.Y.) 267. . . . The acceptance of a check implies an undertaking to present it for payment in a reasonable time. . . . Brown v Schintz, 202 Ill. 509.” Harvard Law Review, “Recent Cases,” 221. 60. R&S Investments v Howard, 95 Nev 279, 593 P2d 53, 56 (1979). 61. “We adopt a definition of legal tender consistent with both the UCC [Uniform Commercial Code] and regional common law and hold that payment by check does not discharge a debt unless and until the check is honored.” Aztec Gas & Oil Corp. v Roemer Oil Co.,” 1997 WY 133, 948 P2d 902 (1997). The court affirmed a ruling by the District Court of Campbell County that when Roemer declined to cash a check from Aztec, “Aztec had failed to make a payment.” 62. Miranda Bravo, Vecinos indeseables, 85. 63. Kessler, Levi, and Ferguson, “Some Aspects of Payment,” 1400. 64. This coinage is produced for investors and collectors. The face values of the gold coins in dollars do not reflect the actual value of the metal. See U.S. Mint, “American Eagles.” 65. “All checks drawn on the Treasurer of the United States must be negotiated within 12 months after the date of issue. Unnegotiated USG Checks are canceled 14 months after issue by Treasury. Valid claims against checks canceled by Treasury may be re-submitted for certification and issuance of a check(s).” U.S. Department of State, Foreign Affairs Procedures Handbook. USG refers to U.S. Government. 66. Susan Dorsey Boland, “Under the Banyan Tree: Virginia Beach Woman Recalls Her Family’s Move to Guantanamo Bay, and Their Traumatic Evacuation,” Virginian-Pilot (Hampton Roads, Va.), May 17, 1995. 67. Carol J. Williams, “Guantanamo Not High on Cuba’s List,” Los Angeles Times, April 18, 2007. 68. Telephone interview with the author, December 20, 2006. ´ Castro. 69. Miranda Bravo, Vecinos indeseables, 85, citing Raul CHAPTER 8 1. McBride, “Evolution of U.S. Immigration,” 7; Pedraza-Bailey, “Cuba’s Exiles,” 22. 2. Copeland, “The Cuban Boatlift,” 139.

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3. Michael R. Gordon, “Castro’s Threat to Unleash Refugees Brings a Warning by U.S.,” New York Times, August 7, 1994. 4. Copeland (1983, 139). 5. McBride, “Evolution of U.S. Immigration,” 7; George J. Church, “Cubans, Go Home.” 6. United Press International, “Reagan to Move Cubans out of Fort Chaffee,” New York Times, July 9, 1981. 7. Associated Press, “535 Refugees from Cuba Bound for Montana Base,” New York Times, December 19, 1981. 8. Barbara Crossette, “U.S. Transfers Haitians to Base in Cuba,” New York Times, November 21, 1991; Eric Schmitt, “U.S. Base Is an Oasis to Haitians,” New York Times, November 28, 1991. 9. Convention relating to the Status of Refugees, 19 UST 6259, 189 UNTS 137 (1951). 10. Protocol relating to the Status of Refugees, 19 UST 6223; 606 UNTS 267 (1967). 11. Convention relating to the Status of Refugees, 19 UST 6259, 189 UNTS 137, Art 1 (1951). The convention specified that this definition applied to persons affected by events prior to January 1, 1951. The protocol removed this period as a restriction. Protocol relating to the Status of Refugees, 19 UST 6223, 606 UNTS 137, Art 1 (1967). 12. National Union of Journalists, Information Centre About Asylum & Refugees and UN High Commissioner for Refugees, “Reporting Asylum and Refugee Issues.” 13. Immigration and Nationality Act, Pub L No 82–414, 66 Stat 163 (1952), codified at 8 USC. 14. Refugee Act, Pub L 96–212, 94 Stat 102 (1980), codified as amended at 8 USC §§ 1157–59 (2000). 15. Such prohibitions are called non-refoulement clauses. 16. Haitian Centers Council, Inc. v McNary, 969 F2d 1326 (2d Cir 1992). 17. Exec Ord 12807, 57 FR 23133 (1992). 18. Except for a group infected with the HIV virus, who remained at the camp until 1993. See Mary B. W. Tabor, “Judge Orders The Release of Haitians,” New York Times, June 9, 1993. 19. U.S. Department of State, “U.S. Policy on Haitian Refugees.” 20. Anne Devroy, “Haiti Refugee Center Reopened in Cuba; Clinton Is Told New Influx Could Overwhelm Processing Facilities on Ships,” Washington Post, June 29, 1994. 21. Rohter (1995). 22. Mireya Navarro, “Camps at Guantanamo Close as Last of Cubans Enters U.S.,” New York Times, February 1, 1996. 23. Haitian Refugee Center, Inc. v Baker, 953 F2d 1498 (11th Cir 1992). 24. Haitian Centers Council, Inc. v McNary, 969 F2d 1326 (2d Cir 1992). 25. Haitian Centers Council, Inc. v McNary, 969 F2d 1350 (2d Cir 1992). 26. Sale v Haitian Centers Council, Inc., 509 US 155 (1993). 27. Cuban American Bar Association, Inc. v Christopher, 43 F3d 1412 (11th Cir 1995).

282

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28. Jones and Hippler Bello, “Cuban American Bar Association,” 480. 29. Nanda, “Legal Responses to Terrorism,” 717–718. 30. Omnibus Diplomatic Security and Antiterrorism Act, Pub L 99–399, 100 Stat 853 (1986), codified at various sections of 22 USC (1994). 31. Uniform Code of Military Justice, codified at 10 USC, Ch 47. 32. Convention relative to the Treatment of Prisoners of War, 6 UST 3316, TIAS No 3364 (1949). 33. Al Odah v United States, 321 F3d 1134 (DC Cir 2003). 34. Al Odah v United States (case 02-5251), Habib v Bush (case 02-5284), and Rasul v Bush (case 02-5288). 35. Ralpho v Bell, 569 F2d 607 (DC Cir 1977). 36. Rasul v Bush, 542 US 466 (2004). 37. Anthony Kennedy. 38. Written by Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg, Steven Breyer, Sandra Day O’Connor, and David Souter. 39. Written by Justice Antonin Scalia, joined by Justices William Rehnquist and Clarence Thomas. 40. Boumediene v Bush, 128 S Ct 2229 (2008). 41. Hamdan v Rumsfeld, 546 US 557 (2006). 42. “No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” Military Commissions Act, Pub L No 109–366, 120 Stat 2600 § 7 (a) (2006). 43. Boumediene v Bush, 128 S Ct 2229, 2236 (2008). 44. Dunlap, “Law and Military Interventions.” 45. McCallum, “Why GTMO?” 2. 46. Ibid., 4–8. 47. The Northeast Gate, which is usually closed. 48. The United States had planted 61,000 mines on its side of the fence as well, but they were ordered removed in 1994, a process that was completed in 2000. See Joint Task Force Guantanamo and Wolff, “A Historical Look.” 49. Norwitz, “Defining Success at Guantanamo,” 81. 50. Yoo, War by Other Means, 142–143. 51. Vagts, “Which Courts Should Try Persons?” 314–316. 52. M´egret, “Justice in Times of Violence,” 335–337. 53. Ibid., 337. 54. Fogarty, “Undermining the Global War,” 60. 55. House of Commons Foreign Affairs Committee, Visit to Guantanamo Bay, 27–28. 56. U.S. Department of Defense, “Memorandum from Rear Admiral Michael J. Lohr.” Lohr’s memorandum also questioned the propriety of the United States making use of the qualities that made Guantanamo Bay unique from a legal perspective. 57. Dunlap, “Law and Military Interventions.” 58. Wheaton, “Strategic Lawyering,” 6, citing a roundtable discussion held by the Council on Foreign Relations.

Notes

283

59. Ibid., 7. 60. Sulmasy and Yoo, “Challenges to Civilian Control,” 1836. 61. Luban, “Lawfare and Legal Ethics,” 1983. 62. Ibid., 1984. 63. Raustiala, “The Geography of Justice,” 2527–2528. 64. Wyzanski, “The Writ of Habeas Corpus,” 101. 65. Steyn, “Guantanamo Bay,” 14. 66. An act for the better secureing the Liberty of the Subject and for Prevention of Imprisonments beyond the Seas (Habeas Corpus Act, also called Habeas Corpus Amendment Act), 31 Car II, Ch 2 (1679). 67. Ibid., Art XI. Sections of this article were amended in 1948 and 1967. The segment reproduced here has not been amended and remains in force. 68. Ibid., Introductory text. 69. Naturally, there was far less international movement among people at the time. CHAPTER 9 1. Even when one state feels obliged to grant another state the use of part of its territory, doing so by lease signifies that the arrangement is a negotiated one, rather than a forced transfer of territorial title. The detailed terms are the outcome of talks by both states. In the U.S.-Cuban case that yielded the Guantanamo Bay lease, the type of arrangement, number of territories involved, and specific locations were among points negotiated. 2. From Cuba’s perspective, the U.S. presence at Guantanamo Bay has ranked among the main problems in its relations with the United States. See Brenner, From Confrontation to Negotiation, 50. 3. Laly-Chevalier, La violation du trait´e, 138. 4. P´erez, Jr., Cuba and the United States, 149. 5. And Bah´ıa Honda, although it was unused. 6. Franklin, Cuba and the United States, 10–11. 7. P´erez, Jr., Cuba and the United States, 162–163. 8. Franklin, Cuba and the United States, 13. 9. Cronon, “Interpreting the New Good Neighbor Policy,” 545, citing a written communication from U.S. Secretary of State Cordell Hull. 10. Fitzgibbon, Cuba and the United States, 108–109, citing a communication in March 1905 from the U.S. State Department to its diplomats in Havana. 11. Ibid., 203–227. 12. P´erez, Jr., Cuba and the United States, 146–147. 13. Ibid., 146. 14. Torriente, Les Relations de la R´epublique de Cuba, 6–7. Torriente was chairman of the International Relations Committee of the Cuban Senate; the book reproduced (in French) a speech he made on April 6, 1923, to the sixth annual meeting of the Cuban Society of International Law. 15. Machado y Ortega, La Enmienda Platt, 52–53. 16. Ibid., 117–130. 17. Ibid., 101.

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18. R. F. Smith, United States and Cuba, 165–186. He calls this period, which ended when Fidel Castro assumed power on January 1, 1959, a twenty-five-year “honeymoon” in bilateral relations. 19. Gherebi v Bush, 352 F3d 1278, 1310 (9th Cir 2003) (Graber dissenting). This dissent was replaced in 2004 by a partial concurrence in an amended ruling after the Supreme Court’s decision in Rasul v Bush. 20. Miranda Bravo, Vecinos indeseables, 122; Ziegler, “Strange Bedfellows,” 111– 112. The lease is ambiguous about whether it is prohibited for the United States to supply Cuba with weapons through Guantanamo Bay. Some authors (e.g., Mason, Across the Cactus Curtain, 148) have written that it is banned. The text of the lease may be interpreted as prohibiting the transfer of only certain weapons from Guantanamo Bay to Cuba, i.e., those imported into Guantanamo Bay “for exclusive use and consumption therein,” as opposed to those imported with the intent of onward transfers. Lease of certain areas for naval or coaling stations, Treaty Ser No 426, Art V (1903). 21. Nieto, Masters of War, 29. 22. Miranda Bravo, Vecinos indeseables, 122–123, quoting a report by rebel unit ´ Castro to Fidel Castro (June 2, 1958), and Mensaje a la Juventud leader Raul del Mundo (Message to the Youth of the World) from the rebel forces (July 5, 1958). 23. Joint Task Force Guantanamo and Wolff, “A Historical Look.” 24. In addition to the military personnel, the Cuban rebels were also holding a number of U.S. and several Canadian civilians they had kidnapped at about the same time. Sources vary in reporting the actual number of military and civilian hostages. See, among others, Nieto, Masters of War, 29. 25. Benjamin, Origin of the Cuban Revolution, 149. 26. Rennack and Sullivan, U.S.-Cuban Relations, 301. 27. Batista went into self-imposed exile in the United States during this time. See Franklin, Cuba and the United States, 14. 28. Ibid., 19. 29. Diez Acosta, Confrontaci´on Estados Unidos-Cuba, 170. 30. Sorenson, Military Base Closure, 115–118. 31. Rennack and Sullivan, U.S.-Cuban Relations, 301. 32. Franklin, Cuba and the United States, 47. 33. Ibid., 50–51. 34. Cuba Ministerio de Relaciones Exteriores, Guantanamo: Base Naval Yankee, 45; U.S. Joint Publications Research Service, Guantanamo: Yankee Naval Base, 27. 35. Miranda Bravo, Vecinos indeseables, 123. 36. Ibid., 141–142. 37. Ziegler, “Strange Bedfellows,” 115–116. 38. Miranda Bravo, Vecinos indeseables, 123; Castro Ruz, “The Empire and the Independent Island.” 39. Miranda Bravo, Vecinos indeseables, 125–26. 40. Ibid., 127–128. Cuba had been supplying water to Guantanamo Bay from the Yateras River, ten miles north of the leased territory, under a 1934 agreement. See Ziegler, “Strange Bedfellows,” 115. 41. Ziegler, “Strange Bedfellows,” 115.

Notes

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42. Latin American Network Information Center, “Castro Holds News Conference.” 43. Murphy, Varner, and Coze, History of Guantanamo Bay, Ch. 17. 44. Ibid., Ch. 18. 45. One estimate put the figure at 70,000 antipersonnel and antitank mines. See Ricardo, Guantanamo: The Bay of Discord, 4. 46. Horrock and Iqbal, “Waiting for Gitmo,” citing base commander Capt. Leslie McCoy. 47. Under the terms of the lease, Cuba must return fugitives from justice in connection with crimes or misdemeanors committed at Guantanamo Bay. Lease of certain areas for naval or coaling stations, Treaty Ser No 426, Art IV (1903). Although the detainees’ alleged crimes were committed outside Guantanamo Bay, the act of escaping could be sufficient to trigger this clause by virtue of occurring on the territory. 48. A government manifesto. 49. Cuba Ministerio de Relaciones Exteriores, “Statement by the Government.” 50. Castro Ruz, “The Empire and the Independent Island.” 51. Cuba Ministerio de Relaciones Exteriores, “Statement by the Government.” 52. Ibid. 53. U.S. Interests Section, Havana, Cuba, “American Citizen Services.” 54. Skoug, “Cuba: Our Last Adversary.” Skoug was the State Department’s Coordinator for Cuban Affairs. 55. Carol J. Williams, “At Guantanamo, a Cross-the-Fence Chat,” Los Angeles Times, October 20, 2006. 56. Carol Rosenberg, “U.S., Cuba talk about malaria,” Miami Herald, February 22, 2002. 57. Ziegler, “Strange Bedfellows,” 119–120. This marked a turnaround in how Cuba treated U.S. flights to Guantanamo Bay. In 1985, Cuban authorities had protested broadcasts to Cuba by the U.S. government station Radio Mart´ı by banning flights in Guantanamo province, surrounding the leased territory, but “specifically and pointedly” exempting U.S. naval aircraft from the ban, according to Skoug. “[A]ssertion of an authority to ‘exempt’ our aircraft might be followed by a closing with no exemption,” he writes. “In response, the Department of State pointed out that U.S. rights to fly into the naval base at Guantanamo Bay could not be affected by Cuba.” Skoug, The United States and Cuba, 108. 58. Ibid., 122–124. 59. Joint Task Force Guantanamo and Wolff, “A Historical Look.” 60. They ultimately were not brought to Guantanamo Bay, but Cuba had offered to provide medical and other assistance to them had they arrived. Cuba Ministerio de Relaciones Exteriores, “Statement by the Government.” 61. Ziegler, “Strange Bedfellows,” 127–128. CHAPTER 10 1. Cuba Ministerio de Relaciones Exteriores, Guantanamo: Base Naval Yankee; U.S. Joint Publications Research Service, Guantanamo: Yankee Naval Base. 2. Cuba Ministerio de Relaciones Exteriores, Guantanamo: Base Naval Yankee, 43; U.S. Joint Publications Research Service, Guantanamo: Yankee Naval Base, 26.

286

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3. Cuba Ministerio de Relaciones Exteriores, Guantanamo: Base Naval Yankee, 24; U.S. Joint Publications Research Service, Guantanamo: Yankee Naval Base, 14. 4. Cuba Ministerio de Relaciones Exteriores, Guantanamo: Base Naval Yankee, 28; U.S. Joint Publications Research Service, Guantanamo: Yankee Naval Base, 17. 5. Cuba Ministerio de Relaciones Exteriores, Guantanamo: Base Naval Yankee, 26; U.S. Joint Publications Research Service, Guantanamo: Yankee Naval Base, 15. 6. Cuba Ministerio de Relaciones Exteriores, Guantanamo: Base Naval Yankee, 29; U.S. Joint Publications Research Service, Guantanamo: Yankee Naval Base, 17. 7. Cuba Ministerio de Relaciones Exteriores, Guantanamo: Base Naval Yankee, 31; U.S. Joint Publications Research Service, Guantanamo: Yankee Naval Base, 18. 8. Cuba Ministerio de Relaciones Exteriores, Guantanamo: Base Naval Yankee, 31; U.S. Joint Publications Research Service, Guantanamo: Yankee Naval Base, 18. 9. Cuba Ministerio de Relaciones Exteriores, Guantanamo: Base Naval Yankee, 31; U.S. Joint Publications Research Service, Guantanamo: Yankee Naval Base, 19. 10. Cuba Ministerio de Relaciones Exteriores, Guantanamo: Base Naval Yankee, 32; U.S. Joint Publications Research Service, Guantanamo: Yankee Naval Base, 19. 11. Cuba Ministerio de Relaciones Exteriores, Guantanamo: Base Naval Yankee, 33; U.S. Joint Publications Research Service, Guantanamo: Yankee Naval Base, 20. 12. Cuba Ministerio de Relaciones Exteriores, Guantanamo: Base Naval Yankee, 32–37; U.S. Joint Publications Research Service, Guantanamo: Yankee Naval Base, 19–22. 13. This constitution defines Cuba’s territory as “the island of Cuba, the Isle of Pines, and other adjacent islands and keys that with them were under the sovereignty of Spain until the ratification of the Treaty of Paris on the tenth of December of eighteen hundred ninety-eight.” Cuba Const Art III (1940), Lazcano ´ Las Constituciones de Cuba, 847–848. The Isle of Pines is known today as y Mazon, the Isle of Youth (Isla de la Juventud). 14. Cuba Ministerio de Relaciones Exteriores, Guantanamo: Base Naval Yankee, 39–41; U.S. Joint Publications Research Service, Guantanamo: Yankee Naval Base, 23–24. 15. Cuba Const, Art 10 § 2 (1976); currently Art 11 § C since a constitutional reform in 2002. 16. Cuba Ministerio de Relaciones Exteriores, Guantanamo: Base Naval Yankee, 41; U.S. Joint Publications Research Service, Guantanamo: Yankee Naval Base, 24. 17. Cuba Ministerio de Relaciones Exteriores, “Cuba y su defensa.” 18. Cuba Ministerio de Relaciones Exteriores, “White Book.” 19. Yale Law Journal, “Revolutions, Treaties, and State Succession.” 20. Maris, “International Law and Guantanamo,” 283. 21. Cuba Ministerio de Relaciones Exteriores, Guantanamo: Base Naval Yankee, 42; U.S. Joint Publications Research Service, Guantanamo: Yankee Naval Base, 25. 22. Miranda Bravo, Vecinos indeseables, 159. 23. U.S. Department of State, “Secretary’s Letter to UN Secretary General.” 24. U.S. Department of State, “Department Statement.” The statement referred to Cuban and Soviet influence on Nicaragua with regard to a case that Nicaragua won against the United States. 25. U.S. Department of State, “Guantanamo Base.” 26. Ibid., 1.

Notes

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27. Ibid., 4. The comment about no provision for unilateral termination was accurate for Cuba but not for the United States. 28. Ibid., 4. 29. Ibid., 4–5. 30. U.S. Department of State, “Guantanamo Base.” 31. Treaty between the United States and Cuba for the Adjustment of Title to the Isle of Pines, 44 Stat 1997, Treaty Ser No 709, Art II (1904). Interestingly, the term relinquishment has a different meaning from the one the United States successfully fought to apply in the Treaty of Paris of 1898. In that treaty, Spain relinquished, rather than ceded, Cuba so that the United States would assume control but would not assume title, whereas here, the United States relinquished its claim to the Isle of Pines so that Cuba would assume title. The bifurcation of types of territorial cession that the Treaty of Paris introduced thus became a short-lived phenomenon used only in that instance. 32. United Nations Office of Legal Affairs, “Note on the United States Naval Station.” 33. “In January 1964, Panamanian dissatisfaction with this relationship boiled over into riots. A three-month suspension of diplomatic relations followed. The growing bilateral tension in the 1960s gave weight to the views of those who believed that a new Canal Treaty was needed to replace the 1903 treaty and to establish a new relationship with Panama.” U.S. Department of State, “Transfer of the Panama Canal.” 34. Ibid., quoting U.S. President Bill Clinton on November 30, 1999, a month before the Canal Zone reverted to Panama under terms of the 1977 treaty, as saying: “I think that the new government of Panama is committed to maintaining the Canal in an appropriate way and keeping it open, and working with us to do so and having good relations.” 35. Strauss, “Guantanamo Bay and the Evolution of International Leases,” 507. ´ 36. See, among others, O’Brien, International Law, 210–211; Lopez Mart´ın, El territorio estatal, 15; and Castellino and Allen, Title to Territory, 53–54. 37. Zayas, “The Status of Guantanamo Bay,” 10. 38. Van Dyke, “Legal Status of Islands.” 39. Jennings, The Acquisition of Territory, 21. 40. Castellino and Allen cite the British Guiana-Venezuela Arbitration, in which fifty years was used as a yardstick, and note that Lindley believed a shorter period may be sufficient. Castellino and Allen, Title to Territory, 53, citing M. F. Lindley. 1926. The Acquisition and Government of Backward Territory in International Law. New ´ York: Negro Universities Press, 178–180. Also see Lopez Mart´ın, El territorio estatal, 15. 41. Fitzmaurice, Law and Procedure, 158–159. 42. Ibid., 159. 43. Ibid., 272. 44. Request for interpretation of the Judgment of November 20th, 1950, in the Asylum Case, 1950 ICJ Rep 395 (1950), 402–403. For a discussion, see Thirlway, “Judicial Activism,” 79. 45. Case Concerning the Gabc´ıkovo-Nagymaros Project (Hungary v Slovakia), 1997 ICJ Rep 7 (1997).

288

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46. Thirlway, “Judicial Activism,” 92. 47. For example, by stricter adherence to/enforcement of its terms or by adjusting the rental amount to prevent it from becoming a token one. 48. Author’s conversations with personnel at Naval Station Guantanamo Bay, January 11, 2008. CHAPTER 11 1. Lazar, “International Legal Status,” 739. ´ jur´ıdica,” 116–124. 2. Lamadrid, “La condicion 3. Gherebi v Bush, 352 F3d 1278, 1294 (9th Cir 2003). 4. For a discussion of treaty reinterpretation, see S. Sullivan, “Rethinking Treaty Interpretation.” 5. Visscher, “L’Occupation de Guerre,” 74. 6. See, e.g., Harris, “The Era of Multilateral Occupation,” 10–11. 7. Perritt, “Structures and Standards,” 415. 8. Ibid., 415. 9. Vienna Convention on the Law of Treaties, 1155 UN Treaty Ser 331, Art 56 (1969). 10. Maris, “International Law and Guantanamo,” 276–278. 11. Johns, “Annihilation of the Exception,” 615. 12. For example, Great Britain’s jurisdiction in its American colonies was less comprehensive than in Great Britain itself. For a discussion of this case, see McPherson, “How Equity Reached the Colonies.” 13. Neuman, “Anomalous Zones,” 1201. 14. Ibid., 1233–1234. 15. Strauss, “Guantanamo Bay and the Evolution of International Leases,” 508. 16. Koh, John Galway Foster Lecture. 17. Krasner, “Structural Causes and Regime Consequences,” 2. 18. Stein, “Coordination and Collaboration,” 117; Keohane, “The Demand for International Regimes,” 155; Puchala and Hopkins, “International Regimes,” 86. 19. Shaw, International Law, 70. 20. Stein, “Coordination and Collaboration,” 129. 21. Kalhan et al., “Colonial Continuities,” 98. 22. Russell, “Rethinking Post-national Citizenship,” 29–39. 23. Strauss, “Guantanamo Bay and the Evolution of International Leases,” 509. 24. An example where concerns of this nature have been raised is Russia’s lease of territory in Sevastopol, Ukraine, as a harbor for the Russian Navy’s Black Sea Fleet. Ukraine has objected to renewing the lease when it expires in 2017, and military and political specialists have suggested that Russia may attempt to keep its ships at Sevastopol after that point. See Cooley, “Imperial Wreckage,” 120–127, for details of the lease; and Pastushuk, “Too Many Views,” Weitz, “Is Ukraine Next?” and Luchterhandt, “Ex-Soviet States,” about the concerns. 25. Roger Alford, “What is de facto sovereignty?,” Opinio Juris Blog, comment posted October 6, 2008, http://www.opiniojuris.org/2008/06/15/what-isde-facto-sovereignty/.

Notes

289

APPENDIX 1 1. Treaty of Peace between the United States of America and the Kingdom of Spain (Treaty of Paris), 30 Stat 1754, Treaty Ser No 343 (1898). Bevans, Treaties and Other International Agreements, vol. 11, 615–621. APPENDIX 2 1. An Act Making Appropriations for the Support of the Army for the Fiscal Year Ending June 30, 1902 (Act of March 2, 1901), 31 Stat 895, Ch 803 (1901). Enrolled Acts and Resolutions of Congress, 1789–; General Records of the United States Government; Record Group 11; National Archives. APPENDIX 3 1. Agreement for the lease to the United States of lands in Cuba for coaling and naval stations, Treaty Ser No 418 (1903). Bevans, Treaties and Other International Agreements, vol. 6, 1113–1115. 2. Convenio para arrendar a´ los Estados Unidos tierras en Cuba para estaciones ´ carboneras y navales. Republica de Cuba, Colecci´on Legislativa: Secretar´ıa de Estado y Justicia, 121–123. Note that the Spanish text refers to chart 520c for Bah´ıa Honda, while the English text refers to chart 520b. APPENDIX 4 1. Treaty Between the United States and Cuba Embodying the Provisions Defining the Future Relations of the United States with Cuba (Treaty of Relations), 33 Stat 2248, Treaty Ser No 437 (1903). Bevans, Treaties and Other International Agreements, vol. 6, 1116–1119. APPENDIX 5 1. Lease of certain areas for naval or coaling stations, Treaty Ser No 426 (1903). Bevans, Treaties and Other International Agreements, vol. 6, 1120–1122. 2. Convenio reglamentando el arrendamiento de las Estaciones Navales y Car´ boneras, hecho por el de 16/23 de febrero. Republica de Cuba, Colecci´on Legislativa: Secretar´ıa de Estado y Justicia, 201–204. APPENDIX 6 1. Message from the American Minister to the Secretary of State, December 27, 1912. U.S. Department of State, FRUS 1912, 295–97. APPENDIX 7 1. Treaty of Relations, 48 Stat 1682, Treaty Ser No 866 (1934). Bevans, Treaties and Other International Agreements, vol. 6, 1161–1162. APPENDIX 8 1. Memo from Leonard C. Meeker, Deputy Legal Adviser, Department of State, to Dean Rusk, Secretary of State. February 2, 1962. National Security Archive,

290

Notes

Cuban Missile Crisis Collection, Document CC00160. ProQuest LLC and The National Security Archive. APPENDIX 9 1. Memorandum from Constantin A. Stavropoulos to U Thant. November 7, 1962. National Security Archive, Cuban Missile Crisis Collection, Document CC02049. ProQuest LLC and The National Security Archive. APPENDIX 10 1. U.S. Department of State. Cable to the U.S. Embassy in Paris, U.S. Embassy in Bern et al. May 18, 1973. U.S. National Archives. Record Group 59, File Unit Electronic Telegrams 1/1/1973–12/31/1973, Document No. 1973PARIS14211. 2. U.S. Department of State. Cable to the U.S. Embassy in Paris, U.S. Embassy in Bern et al. May 8, 1974. U.S. National Archives. Record Group 59, File Unit Electronic Telegrams 1/1/1974–12/31/1974, Document No. 1974STATE094834. APPENDIX 11 1. Cuban Liberty and Democratic Solidarity (Libertad) Act (Helms-Burton Act), Pub L 104–114, 110 Stat 785 (1996), codified at 22 USC. APPENDIX 12 1. Source: U.S. Government.

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GENERAL INDEX

Al Qaeda, 70, 72, 144, 150 Alarm Tech Services Inc., 76 All America Cables Company, 74–75 Aqueduct, Yateras River to Guantanamo, 54, 60, 268 n.101 Aristide, Jean-Bertrand, 70, 139, 141 Army, U.S., 68 Asylum seekers: Cuban, 71, 88–89, 143; factor in U.S.-Cuban relations, 165, 167–168; Haitian, 85–86, 140–143; holding and processing, 70–72; Kosovar, 71, 167–168; rights of, 85–89, 138–144, 151–152, 194. See also specific law cases Bah´ıa Honda: as leased territory, 35, 50–55, 160–161; abandonment of, 56–57, 60–61; as factor in rent, 126–127, 131; size of leased territory, 53 Base Realignment and Closure (BRAC), 124 Batista, Fulgencio, 162–163, 284 n.27 Bay of Pigs invasion, 84, 109, 164 Beaupr´e, Arthur M., 55–56 Bilateral relations, Guantanamo Bay’s role in, 156–169 “Black hole.” See International law: jurisdictional vacuum (“black hole”) Bosnia and Herzegovina, 27 Bradford, Royal B., 47 Bryan, William Jennings, 56 Burton, Dan, 275 n.36. See also Helms-Burton Act Bush, George H. W., 141

Caimanera, 40, 57, 73, 85, 104 Canal Zone lease: jurisdiction and sovereign rights, 27, 145, 270–271 n.1, 272 n.47; rent dispute and revisions 39, 132, 135, 278 n.23; termination, 31, 37, 179–180, 287, nn.33, 34. See also Panama Canal Carter, Jimmy, 138 Castro, Fidel, 111, 122, 132, 136–137, 163–165 ´ 135, 163 Castro, Raul, Central and South American Cable Co., 73 Central Intelligence Agency, 148 Chassin, Henri Scheug, Co., 60 Checks. See Rent, Guantanamo Bay lease Cienfuegos, 50 Clinton, Bill, 138, 150, 165, 287 n.34 Coal: as naval fuel, 62–64; displacement by oil, 63–64 Coaling station: in Spanish-American war, 42; as element of lease, 51, 61; interpretation of term, 64–65 Coast Guard, U.S., 68, 71, 131, 139–141 Colby, Bainbridge, 74 Cold War, 84, 104, 163–164, 166. See also Missile Crisis Columbus, Christopher, 40, 263 n.1 Commisison for Assistance to a Free Cuba, 112 Competence theory. See jurisdictional theory

308

General Index

Compensation in territorial leases: relationship to duration, 38–39; types of, 38 “Complete jurisdiction and control.” See Guantanamo Bay, jurisdiction Constituent Convention, 48–50 Constitution, Cuban: development, 46, 48–50 (see also Platt Amendment); constitution of 1901, 50, 171; constitution of 1940, 173–174; constitution of 1976, 165–166, 173–174; constitutional reform of 2002, 286 n.15 Constitution, U.S.: application outside U.S. sovereign territory, 3, 45–46, 80–89, 92, 95–98, 141–153, 194. See also Guantanamo Bay, jurisdiction; Specific cases Constitutive theory (of state recognition), 15 Courts, U.S. civilian, 72–74, 79, 89, 94–95, 101, 144–145, 147, 148–153 Cousteau, Jacques, 137 Cuba, U.S. occupation of (1898–1902), 44–47 Cuban Interests Section, Washington, 168 Cuban employees at Guantanamo Bay, 70, 185 Cuban Liberty and Democratic Solidarity Act. See Helms-Burton Act Cuban revolution: situation prior to, 60, 70, 163; Cuban government’s position after, 84, 98, 104, 108, 114, 132, 136, 163–165 Cuban Revolutionary Party, 41 Currency rates, 38–39, 127–128, 130–131, 133–135, 279 n.39 Cyprus, 27, 99 Daniels, Josephus, 63 Declaratory theory (of state recognition), 15–16 Defense Base Act, 81 Defense Department, U.S., 69, 89, 124, 148–149 Desvernine, Pablo, 75

Detention center for alleged terrorists, 69–70, 72–73, 89–91, 122–124, 144–147; Camp Delta, 73; Camp X-Ray, 73; rights of detainees, 89–90, 94–95, 145–147, 151–152, 154–155; selection of Guantanamo Bay as site, 148–154 Diego Garcia, 38 Dollar, U.S.: devaluations, 128, 130–131; gold, 52, 55, 126–131, 137 (see also Gold coins) Duration of territorial leases: means of termination, 37; models of, 36–37 Effective control, 8, 9–10, 98, 183; at Guantanamo Bay, 98, 181; relationship to title and sovereignty, 8, 11, 13, 17, 18; territorial leases and, 10, 23, 27, 33. See also Territory Espace vital theory. See Lebensraum theory Estoppel, 192 Estrada Palma, Tom´as, 50–52 Exchange rates. See Currency rates Extraterritorial jurisdiction. See Guantanamo Bay, jurisdiction Federal Bureau of Investigation, 148 Federal Tort Claims Act, 82, 88, 106 Fern´andez Villaverde, Raimundo, 264 n.24 Force, use of, 8, 120–121, 166, 177, 193 Fort Chaffee, 138–139 Fuel, naval. See Coal; Oil Geneva Conventions: Third, 145, 147, 151; Fourth, 100 (see also Occupation, military) Gergen, David, 138–139 Gold coins, U.S.: end of rent payments in, 127–131; resumption of producton, 137, 280 n.64 Gold clause, 128–130 Gonzales, William E., 56 “Good neighbor” policy, 59, 162 Graber, Susan P., 162 ´ 163–164 Grau San Mart´ın, Ramon,

General Index Guam, 42, 85, 142, 145, 148 Guantanamo Bay: description and history before lease, 40–42 Guantanamo Bay, jurisdiction: Cuban, 84–85; U.S., 80–84, 85–98, 143–144, 153–154, 193–195, 198. See also International law: jurisdictional vacuum (“black hole”) Guantanamo Bay lease: creation in 1903, 50–53; duration, 104–125 (see also under specific aspects and factors); expansion treaty of 1912, 53–59; objectives, 62–77; rent, 126–137 (see also under specific aspects); revisions in 1934, 59–61; size of leased territory, 53–54, 56–57, 59–60, 127, 267 n.86, 277 n.3; scenarios for future, 178–185 (see also under specific scenarios); texts, differences in English and Spanish, 132–135, 180, 182, 186, 188, 191; violations or breaches, 66, 121–123, 127, 131, 157, 162, 172–174, 182, 184 Guantanamo Bay, relative to U.S. sovereign territory. See Guantanamo Bay, jurisdiction Guantanamo Bay, sovereignty at, 35, 51, 90, 92–94, 96, 105–106, 108, 158, 187–188, 198–200 Guantanamo Bay, U.S. activities at: coaling station, 62–65; naval station, naval operating base, and naval base, 65–67; non-naval military activities, 67–70; non-military activities, 70–73; private-sector activities, 73–77. See also under specific activities Guant´anamo, city, 40, 168 Guant´anamo, province, 40, 285 n.57 Habeas corpus, 89–92, 94–96, 105, 145–147, 149–150, 154–155 Habeas Corpus Act, 154–155 Hague Regulations. See Occupation, military Hay, John, 134 Helms, Jesse, 275, n.36. See also Helms-Burton Act

309

Helms-Burton Act, 112–114, 124–125, 178, 180–181, 185, 188, 194 Hong Kong, 3, 28, 31, 34, 36, 38, 190 Huber, Max, 9, 11–13 Immigration and Nationality Act, 85–88, 140–143, International Court of Justice: compulsory jurisdiction, 170, 175–176; rulings, 7, 9, 22, 58, 184 International Covenant on Civil and Political Rights, 102 International Law Commission, 120 International law: issues raised by Guantanamo Bay lease, 186–195; jurisdictional vacuum (“black hole”), 193–195, 199 (see also Guantanamo Bay, jurisdiction); legality of lease, 192–193; occupied territory, 191–192; sovereignty, 187–188; treaty law, 188–191 Interventions in Cuba, U.S., 156, 159–161 Investments in Cuba, U.S., 41, 159–160 Isle of Pines (Isle of Youth), 55, 177 Joint Chiefs of Staff, 110, 124 Joint Task Force, U.S., 71, 73, 76 Jurisdiction. See Guantanamo Bay, jurisdiction; Leased territories, jurisdiction Jurisdictional theory, 6 Justice Department, U.S., 148–150 Kashmir, 38, 263 n.105 Kennedy, John F., 110 Kennebunkport Order, 141–142 KFC, 76 Kiaochow, 21, 28 Kidnapping incident, 163, 284 n.24 Knox, Philander Chase, 55–56 Kwantung. See Port Arthur Kuznetsov, Vasiliy Vasilevich, 274–275 n.34 Lawfare, 152–153 Lebensraum theory, 6

310

General Index

Legal arguments regarding Guantanamo Bay lease: UN assessment, 177–178; potential Cuban arguments, 170–176; potential U.S. arguments, 176–177 Leased territories: See under names of specific territories (Bah´ıa Honda, Bosnia and Herzegovina, Canal Zone, Cyprus, Diego Garcia, Guantanamo Bay, Hong Kong, Kashmir, Kiaochow, Macao, Naharayim/Baqura and Zofar/Al Ghamr, Port Arthur, Quinto Real Norte, Tin Bigha, Wei-hai Wei) Leases, private law, 21–23, 30–31, 199 Leases, territorial: catalysts in international relations, 156–169; characteristics, 26–33; compensation, 33, 37–39, 190–191; disguised and temporary cessions, 23–24, 28, 181, 200; duration, 22, 23, 25, 27, 30, 33, 36–37, 38–39, 158; jurisdiction, 26, 28, 29, 33–35, 78–79, 195–198; private-law origins, 20–23, 30–31, 107, 199; revision of terms, 38–39 (see also specific leases); rights, transfer of, 33–36; servitudes, relationship to, 20–21, 118–119; terminology of, 20–21, 31–32. See also Compensation in territorial leases; Duration of territorial leases Legislation, applicability at Guantanamo Bay. See Guantanamo Bay, jurisdiction Libertad Act. See Helms-Burton Act Living space theory. See Lebensraum theory Lohr, Michael J., 151, 282 n.56 Long, Boaz W., 74 Long, John D., 42 Longshoremen’s and Harbor Workers’ Compensation Act, 81–82 Machado y Ortega, Luis, 50, 57–58, 161 Macao, 31 Mariel boatlift, 138–139 Marine Corps, U.S., 66–68, 71–72, 159

M´arquez Sterling, Manuel, 49, 69 ´ Bartolom´e, 50 Maso, McCoy, Les, 137 McDonald’s, 76, 123 McKinley, Brunson, 141 McKinley, William, 41, 48, 133 Meeker, Leonard, 176–177 M´endez Capote, Domingo, 49 Meyer, George von L., 54 Mikoyan, Anastas I., 111, 274–275 n.34 Military Commissions Act, 95–96, 147 Military justice system, 144–145, 147–148, 150–151. See also Uniform Code of Military Justice Mines and minefields, 98, 166, 168, 282 n.48, 285 n.45 Ministry of Foreign Affairs, Cuban, 104, 167, 170 Missile Crisis, 109–112, 122, 164, 175, 179 Montevideo Convention, 15–16. See also Recognition of states Murphy, M. E., 57, 102 Naharayim/Baqura and Zofar/Al Ghamr, 32, 190 National Security Council, 110, 148 Naval air station, 66–67 Naval base: definition, 65–67; Guantanamo Bay, 66–67, 162–163 Naval net depot, 66, 269 n.27 Naval operating base: definition, 66; Guantanamo Bay, 66, 162, 189 Naval station: definition, 65–67, 72; Guantanamo Bay, 66–67, 69–73 Navy Region Southeast, 66 Navy, U.S.: during occupation of Cuba, 47; facilities and operations, 54, 60, 62, 121, 127, 135; Guantanamo Bay, presence and development of, 42, 54, 56, 65–67; in Spanish-American; War, 42. See also Coal, Coaling station, Oil Nipe, 50 Object theory. See territoire-objet theory Occupation: form of territorial title acquisition, 7, 9–10

General Index Occupation, military: Geneva Convention, Fourth, 100; Hague Regulations, 98–101, 191; relative to Guantanamo Bay, 98–103, 191–193 Odious debt, doctrine of, 264 n.23 Oil, as naval fuel, 63–64 Oil supply station, 64–67, 189 Operation Bingo, 69 Operating costs, as factor in lease, 124–125 Oriente, province, 40 Organization of American States, charter of the, 16. See also Recognition of states Pacta sunt servanda, 107, 116–118, 122, 172, 178 Panama Canal, 54, 56, 68. See also Canal Zone lease Paris, Treaty of, 42–46; “relinquishing” v “ceding” sovereignty, 42–45. See also Cuba, U.S. occupation of (1898–1902); Spanish-American War; Teller Amendment Pawley, E. P., and Co., 73 Perpetuity, Guantanamo Bay lease: misperceptions of, 104–109 Peso: Cuban, 133–135; Spanish colonial, 132–134 Philippines, 9, 42, 44, 83 Platt Amendment: factor in bilateral relations, 53, 59, 66, 68, 125, 130, 156–161; international legal questions, 120, 171, 193; origin and role in U.S. naval presence in Cuba, 47–50 Platt, Orville H., 48 Plenary power doctrine, 97–98 Port Arthur, 29–30, 99–100 Prescription: form of territorial title acquisition, 8–9; scenario for Guantanamo Bay, 123–124, 181–185 Protests against U.S. presence and activities, Cuban, 70, 124, 157, 164, 182–183, 285 n.57 Puerto Grande, 263 n.1 Puerto Rico, 42, 44, 68, 85, 111, 142, 145

311

Quinto Real Norte, 34, 37, 39, 132, 190 Rebus sic stantibus, 37, 114–119, 172–175, 177–178 Recognition of states, 8, 12, 15–17; constitutive and declaratory theories, 16 Refoulement, 140, 143 Refugee Act, U.S., 140, 142 Refugee Convention, UN (Convention relating to the Status of Refugees), 140, 143 Refugees. See Asylum seekers Regimes, in international relations, 33, 195, 197–198 Relations, Guantanamo Bay’s role in U.S.-Cuban, 156–169 Rent, Guantanamo Bay lease: discrepancy in English and Spanish texts, 132–135; payments in gold coin, 52, 55, 126–131, 137; material element, 126–127; payment by check, 135–137, 183; transformation to token element, 131–132 Restatement (Third), US Foreign Relations Law, 16. See also Recognition of states Revolution, Cuban. See Cuban revolution Roig de Leuchsenring, Emilio, 57–59 Roosevelt, Eleanor, 102–103 Roosevelt, Franklin D., 102, 128 Roosevelt, Theodore, 51 Root, Elihu, 47–49, 52 Rubottom, Roy, 163 Rumsfeld, Donald, 151 Rusk, Dean, 176 Senate Committee on Foreign Relations, 124 Servitudes, international: 20–26; characteristics, 24–25, 106–107; objectives, 25–26; sovereignty, relationship to, 23–24; territorial leases, relationship to, 20–21, 118–119. See also Leases, territorial

312

General Index

Sovereignty, 1–2, 5–19; characteristics, theories of, 2, 17; Cuba’s obtaining of, 44–45, 48, 50; internal and external, 11, 12–14, 17; limits on, 15, 17–19, 21; positive and negative, 11; “relinquishing” v “ceding,” 42–45; territorial leases and, 21–31, 36–38 Soviet Union. See Missile Crisis Space theory, 6 Spain: as colonial power, 40–41; loss of colonies, 42–44; debt, 43–44. See also Paris, Treaty of; Spanish-American War Spanish-American War: 41–42, 63, 96, 118, 132. See also Teller Amendment; Paris, Treaty of State Department, U.S., 71, 112, 135–136, 168 States: definition, 4; recognition of, 8, 12, 15–17; Westphalian system of, 1–2, 4, 11, 14, 18, 23, 27, 199–201 Stavropoulos, Constantin A., 117, 120, 177–178 Stevenson, Adlai E., 109–111, 124, 179 Subject theory. See Territoire-sujet theory Sugar sector, Cuba, 41, 159–160 Supreme Court, Cuban, 85, 172–173, 199 Supreme Court, U.S. See under specific cases Switzerland, government of, 136, 168 Taco Bell, 76 Taft, William Howard, 54 Taliban, 70, 72, 144 Teller Amendment, 42–43, 46, 47 Teller, Henry M., 42 Tenants at U.S. naval facilities, 67, 71–72, 76, 179, 190 Termination options, Guantanamo Bay lease: denunciation, right of, 119, 123, 176; material breach, 119, 121–123, 127, 131; operating costs, 124–125; rebus sic stantibus, 114–119, 172–175, 177–178; unequal treaties, doctrine of, 119–120, 165, 193 Termination proposals, Guantanamo Bay lease: Helms-Burton Act,

112–114, 124–125, 178, 180–181, 185, 188, 194; missile crisis, 109–112, 175, 179 Territoire-limite theory, 6 Territoire-objet theory, 5–7, 172 Territoire-sujet theory, 5 Territorial leases. See Leases, territorial Territory, 4–10. See also Effective control; Leases, territorial; Sovereignty; Title to territory. See also under names of specific theories of state-territory relationship Terrorism, reframing as military enemy, 73, 148, 150. See also Detention center for alleged terrorists Thant, U, 111, 117 Tin Bigha, 35, 38, 190 Title to territory, 5, 7–13; Guantanamo Bay and, 50–51, 107, 109, 122–124, 176–177, 181–185, 188; leased territories and, 17, 27–28, 30, 33, 37–38, 109, 119, 199–200; means of securing, 7–8, 257 nn.40, 55; “relinquishing” v “ceding,” 42–45, 47–48, 287 n.31 Treasurer General of the Republic of Cuba, 135, 279 n.50 Treaties: deviations from object and purpose, 189–191; interpretations, 36, 190; Vienna Convention on the Law of Treaties, 38–39, 58, 107–108, 115, 120–123, 134, 192–193; violations or breaches, 37–39, 66, 119, 121–123, 127, 182, 184, 190. See also Termination; options, Guantanamo Bay lease Treaty of Paris. See Paris, Treaty of Treaty of Relations, U.S.-Cuba (1903), 53, 59, 171, 177 Treaty of Relations, U.S.-Cuba (1934). See Guantanamo Bay lease: revisions in 1934 Trustee occupancy, 191–192 “Ultimate sovereignty:” See Guantanamo Bay, sovereignty at UN Convention relating to the Status of Refugees (Refugee Convention), 140, 143

General Index UN High Commissioner for Refugees, 140 UN Protocol relating to the Status of Refugees, 140 UN Security Council, 109–111, 177–178 Uniform Code of Military Justice, 145, 147. See also Military justice system United Nations, charter of the, 8, 107, 120, 178 U.S. Interests Section, Havana, 135–136, 168

313

U.S. interventions in Cuba, 68, 159 Vienna Convention on Diplomatic Relations, 83 Vienna Convention on the Law of Treaties. See under Treaties Wei-hai Wei (Weihaiwai), 28–29, 34, 99, 100 Westphalian system. See States Wood, Leonard, 47–48

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INDEX OF CASES

International Asylum Case (Colombia v Peru), 1950 ICJ Rep 395, 184, 287 n.44 Eastern Greenland Case. See Legal Status of Eastern Greenland Frontier Dispute (Burkina Faso/Mali), 1986 ICJ Rep 554, 7, 256 n.28 Gabc´ıkovo-Nagymaros Project (Hungary v Slovakia), 1997 ICJ Rep 7, 184, 287 n.45 Island of Palmas Case (or Miangas) (United States v Netherlands), 2 UN Rep Intl Arb Awards 829 (Perm Ct Arb 1928), 9, 11–13, 181 Land and Maritime Boundary (Cameroon v Nigeria), 2002 ICJ Rep 303, 10 Legal Status of Eastern Greenland (Denmark v Norway), PCIJ Series A/B, No 53, 45 (1933), 9, 181 Maritime Delimitation and Territorial Questions (Qatar v Bahrain), 2001 ICJ Rep 40, 58, 267n.96 Minquiers and Ecrehos Case (France/United Kingdom), 1953 ICJ Rep 47, 9, 181 Sovereignty over certain Frontier Land (Belgium/Netherlands), 1959 ICJ Rep 209, 10 Cuba In re Guzman & Latamble, Cuba S Ct, Ann Dig of Pub Intl Law Cases 1933–1934 (Intl Law Rep 7) 112 (1934), 85, 182, 271 n.24

United Kingdom Chagos Islanders v The Attorney General, [2003] EWCH 2222 (QB), 263 n.27 Feist v Soci´et´e Intercommunale Belge d’Electricit´e, 150 Times Law Rep 41 (1933), 129 United States Al Odah v United States, case 02-5251 (D DC 2002), 321 F3d 1134 (DC Cir 2003), consolidated with Rasul v Bush, 542 US 466 (2004), 90, 105, 145–147 Augustin v Sava, 735 F2d 32 (2d Cir 1984), 87 Aztec Gas & Oil Corp. v Roemer Oil Co., 1997 WY 133, 948 P2d 902 (1997), 136, 280 n.61 Barnet v Smith, 30 NH 256, 1855 WL 2603 (1855), 136, 280 n.57 Bird v United States, 923 F Supp 338 (D Conn 1996), 88–89, 106 Boumediene v Bush, 128 S Ct 2229 (2008), 84, 96–97, 108, 147, 154–155, 187, 193–195, 200 Bronson v Rodes, 74 US 229 (1868), 128 Brown v Schintz, 202 Ill 509, 136, 280 n.59 Cobb v United States, 191 F2d 604 (9th Cir 1951), 82–83, 88 Cuban American Bar Association, Inc. v Christopher, 43 F3d 1412 (11th Cir 1995), 88, 143–144 Downes v Bidwell, 182 US 244 (1901), 80–81, 194

316

Index of Cases

Gherebi v Bush, 352 F3d 1278 (9th Cir 2003), 90–94, 158, 162, 187, 189 Habib v Bush, case 02-5284 (D DC 2002), consolidated with Al Odah v United States, 321 F3d 1134 (DC Cir 2003), 145 Haitian Centers Council, Inc. v McNary, 969 F2d 1326 (2d Cir 1992), 84, 86–88, 142 Haitian Centers Council, Inc. v McNary, 969 F2d 1350 (2d Cir 1992), cert granted sub nom Sale v Haitian Centers Council, Inc., 509 US 155 (1993), 142–143, 146, 198 Haitian Refugee Center, Inc. v Baker, 789 F Supp 1552 (S D Fla 1991), 953 F2d 1498 (11th Cir 1992), 72, 85–86, 142–143 Hamdan v Rumsfeld, 546 US 557 (2006), 101–102 Insular Cases (general reference to series of cases), 45–46, 96–97, 153 Johnson v Eisentrager, 339 US 763 (1950), 86–87, 89–90, 96–97, 145–146 Kadi´c v Karadˇzi´c, 70 F3d 232 (2d Cir 1995), 16–17 Koones v District of Columbia, 54 R 278, 280 n.57 Luckenbach S.S. Co. v United States, 280 US 173 (1930), 27, 261 n.52 Lynch v Cannatella, 810 F2d 1363 (5th Cir 1987), 87

R&S Investments v Howard, 95 Nev 279, 593 P2d 53 (1979), 136, 280 n.60 Ralpho v Bell, 569 F2d 607 (DC Cir 1977), 146 Rasul v Bush, 215 F Supp 2d 55 (D DC 2002), consolidated with Al Odah v United States, 321 F3d 1134 (DC Cir 2003), cert granted sub nom Rasul v Bush, 542 US 466 (2004), 89–90, 92, 94–96, 105–106, 146–147, 194 Rodriguez-Fernandez v Wilkinson, 654 F2d 1382 (10th Cir 1981), 87 Sage v Burton, 84 Hun (NY) 267, 136, 280 n.59 Sale v Haitian Centers Council, Inc., 509 US 155 (1993). See Haitian Centers Council, Inc. v McNary, 969 F2d 1350 (2d Cir 1992) Strong v King, 35 Ill 9, 1864 WL 3019 (1864), 136, 280 n.58 Taylor v Wilson, II Met (Mass) 44 (1846), 136, 280 n.59 United States v Corey, 232 F3d 1166 (9th Cir 2000), 83 United States v Spelar, 338 US 217 (1949), 106 United States v Tiede, 86 FRD 227 (US Ct Berlin 1979), 87 United States v Verdugo-Urquidez, 494 US 259 (1990), 86–87 Vermilya-Brown Co. v Connell, 335 US 377 (1948), 82

About the Author MICHAEL J. STRAUSS is Lecturer in International Relations at the Centre d’Etudes Diplomatiques et Strat´egiques, Paris, specializing in territorial leases as phenomena of international relations and international law. Before entering academia, he was an international journalist and served as bureau chief for Agence France-Presse’s AFX News in Paris, Knight-Ridder Financial News in Madrid, and Dow Jones News Service in Geneva. He took his Ph.D. in International Relations and Diplomacy from the Centre d’Etudes Diplomatiques et Strat´egiques and his M.Sc. in Journalism from Columbia University, where he was an International Fellow in the School of International Affairs. He is the author of The Viability of Territorial Leases in Resolving International Sovereignty Disputes: A Comparative Study.