Never Mind Just Closing Guantánamo, It's Time to Return It

The Associated Press is reporting that advisers to the President-elect are saying that "one of his first duties in office will be to order the closing of the U.S. military prison at Guantánamo Bay." While it is reassuring that the President-elect is moving forward to quickly close this blight on the American conscience, he would do well to simply return it as soon as possible to its rightful owners, the Republic of Cuba. It's simply time to unwind an empire the United States should have never been acquired in the first place. Moreover, the lease of Guantánamo Bay is likely illegal under international law or at the very least the US has breached the terms of the lease thus invalidating the lease.

In 1903, shortly after Cuba achieved independence from Spain with American intervention, Theodore Roosevelt signed the deal with the new and American approved government of Cuba to lease 45 square miles at the mouth of Guantánamo Bay for 2,000 gold coins a year -- now valued at slightly more than $4,000 annually. In 1934, the United States and Cuba renegotiated the Guantánamo Bay lease, agreeing that the land would revert to Cuban control only if abandoned or by mutual consent. The U.S. government continues to pay the lease every year, but the Cuban government refuses to cash the cheques. As recently as February of last year Cuba demanded the return of the base. The US simply ignores Cuba's demands.

But Cuba does have legal recourse. The Cuban government can use the 1969 Vienna Convention on the Law of Treaties (specifically articles 60 and 62) and the section dealing with the rebus sic stantibus ("things thus standing") clause (which is used in reference on Article 62 of the Vienna Convention) to make "a cogent case for the devolution of its territory back" under its direct control. The fundamental change of circumstances, otherwise known as the clausula rebus sic stantibus, can be invoked to challenge the validity of treaties and lead to their termination. It is essentially an "escape clause" that makes an exception to the general rule of pacta sunt servanda ("promises must be kept"). In essence, Cuba can argue that American actions that are tantamount to acts of war since 1962 invalidate the leaseholder agreement. Cuba can also argue that the original 1903 lease and the 1934 lease amendment were negotiated under duress and therefore not binding.

Beyond that, the US has breached the terms of the lease which limited the use of Guantánamo Bay. According to Article 60 of the Vienna Convention, a treaty is voidable by virtue of a material breach of its provisions. According to the terms of Articles 1 and 2 of the 1903 Lease Agreement, the use of the Guantánamo Bay territory was limited to coaling and naval purposes only, "and for no other purpose." Thus, the repeated use of the territory by American authorities as an internment camp for both Haitian and Cuban refugees or as a detention and interrogation center and now as a prisoner of war camp and torture center constitute a material breach of the lease.

This shouldn't go that far. If President Obama wants to put US-Latin American relations on a different plane, he would do well to above all end the embargo on Cuba but he would also forever earn the gratitude of Latin Americans who find American imperialism outdated. The Guantánamo lease is now 106 years old, it's a relic of another age.

More on the case for returning Guantánamo Bay to Cuba from the Council of Hemispheric Relations.

Tags: Guantánamo Bay, US-Cuba Relations, US-Latin American Relations, Vienna Convention on the Law Treaties (all tags)

Comments

27 Comments

Re: Never Mind Just Closing Guantnamo

Nah, I disagree. Wait 'till Zombie Castro finally gives the country a shot at some actual personal freedom first.

by ragekage 2009-01-12 06:50PM | 0 recs
Keep Guantanamo Base, not Prison

Actually, I think the base still serves an important purpose with its location in the Caribbean, protecting the Panama Canal and all. But, it should not be used as a way to avoid holding prisoners in the US without Habeaus Corpus. What have the Cuban government done to deserve it back? Perhaps when the two governments finally start dealing with each other like adults we can negotiate the future of the base.

by Hilina 2009-01-12 07:00PM | 0 recs
Re: Keep Guantanamo Base, not Prison

Protect the Panama Canal from whom?

This is the also first time I've heard of a lessor having to deserve the return of leased property.

by newms 2009-01-12 07:36PM | 0 recs
Re: Keep Guantanamo Base, not Prison

Nope, it is not a necessary base for any combat at the Canal.  If that were a serious consideration, which it is not at present, the bases on Puerto Rico would probably be better and sufficient
by killjoy 2009-01-12 11:36PM | 0 recs
Re: Keep Guantanamo Base, not Prison

I believe the strategic importance is the fact it is right off of Florida.  

by yitbos96bb 2009-01-13 10:02AM | 0 recs
Right Off Florida?

It's 400 miles away from Florida, on the far side of Cuba.  It's a small base with a single airfield.  

It's next to useless as a strategic resource vis-a-vis Florida.

by Collideascope 2009-01-13 10:24AM | 0 recs
Protecting the Canal Zone ...

... from Guantanamo, 800 miles away?  

U.S. forces from Florida or Puerto Rico can handle the job of protecting the Panama Canal, if need be, much more effectively than a small base with a single airfield in Cuba.  Frankly, this idea than Guantanamo is necessary to defend the canal is so inane it sounds like you just made it up on the spot for lack of being able to come up with anything better.

by Collideascope 2009-01-13 10:21AM | 0 recs
Re: Never Mind Just Closing Guantnamo

Fascinating case, and I agree...

But I just don't see it happening anytime soon.

First things first, get GITMO shut down.  At this point, that's the most important thing.

by Obamaphile 2009-01-12 07:47PM | 0 recs
Re: Never Mind Just Closing Guantnamo

I don't either but I really wanted to put this out there and see the reception the idea might get.

A number of you suggest that the base has strategic importance. Guantánamo does seem to play a role in drug interdiction. That is pretty much its only strategic importance. It is clear to me that future GOP administrations will use Guantánamo as some sort of interrogation area given its proximity to the US and yet its unique charatcer as being totally inaccessible. Part of my rational for pushing for its return to Cuba is that it keeps the US from sinning. It would force the US to tackle the issue of rights of the detainees head on. I assume that many of the detainees in Guantánamo are not angels but they are human and they do have rights. Keeping Guantánamo gives US policy makers an option of avoiding hard questions.

by Charles Lemos 2009-01-13 01:07PM | 0 recs
Re: Never Mind Just Closing Guantnamo, It's Time

It's IMPERIALISM, folks.  Naked imperialism and an embarrassment.  Of course the base should be closed and returned to Cuba.  The idea that WE need it to protect the canal is ludicrous.  And we have no right to expect anything from the Castro government after waging a fifty year war against Cuba (and a trade embargo is an act of war) and attempts to assassinate Castro!  The entire history of U.S. policy toward Cuba in the last century is a disgrace.

by Thaddeus 2009-01-12 07:58PM | 0 recs
Re: Never Mind Just Closing Guantnamo, It's Time

Is it time to give up Guam, American Samoa, Hawaii, and the Virgin Islands? I mean, every piece of the United States was acquired by means that today we would consider unacceptable. But, isn't that true of virtually every major country at some point in their history?

But, we are where we are, and Gitmo base is important strategically.

by Hilina 2009-01-13 05:05AM | 0 recs
Re: Never Mind Just Closing Guantnamo, It's Time

Ahmm...Hawaii is a US state - Hawaiians voted to become a state and the US Government passed a law for Hawaii to become a state. I'm not too familiar with the politics of Guam, American Samoa or the US Virgin islands, but their final status will have to be determined by the people of those islands.

Guantanamo Bay on the other hand is just a strip of land that was leased to the US by a US backed Cuban Government. Cuba now wants the land back.  

by newms 2009-01-13 05:37AM | 0 recs
Re: Never Mind Just Closing Guantnamo

Umm...the terms of the lease are pretty clear here guys. If we do not offer mutual consent it stays ours. Just because Cuba is refusing to cash the checks does not mean we don't have the right to keep the land... and Gitmo is strategically positioned.

As to the person above who said "protect the Panama Canal from who?" Just because it is not under threat NOW doesn't mean it could not come under a threat.

I am as much in favor of peace as anybody else and I strongly oppose the preemptive war doctrine. However, I also oppose the idea that we should start giving up all of our bases that are on foreign soil. They serve strategic purposes and are useful to our military in times of conflict.

by JDF 2009-01-12 09:25PM | 0 recs
Re: Never Mind Just Closing Guantnamo

"Just because it is not under threat NOW doesn't mean it could not come under a threat."

That's pretty much the Republicans' entire foreign policy wrapped up in one sentence.  Let's not go spouting their talking points.

by ProgressiveDL 2009-01-13 03:05AM | 0 recs
Re: Never Mind Just Closing Guantnamo

Um... your comment REALLY comes us naive.

by yitbos96bb 2009-01-13 10:01AM | 0 recs
Re: Never Mind Just Closing Guantnamo

Ahh..American Imperialism. You do realize that the treaty in 1934 was renegotiated with an American backed provisional President who had been installed in a coup?

by newms 2009-01-13 05:57AM | 0 recs
Re: Never Mind

I agree 100%. I also think we need to tell PR to sh*t or get off the pot. Statehood or Sovereignty - no more of this:

"In a series of opinions by the Supreme Court of the United States, referred to as the Insular Cases, the court ruled that territories belonged to, but were not part of the United States. Therefore, under the Territorial clause Congress had the power to determine which parts of the Constitution applied to the territories."

http://en.wikipedia.org/wiki/Article_Fou r_of_the_United_States_Constitution

by QTG 2009-01-13 04:11AM | 0 recs
Panama Canal

The Panama Canal is a critical world trade and military feature. We DO have an obligation to protect it. We don't know if at some point the Venezuelans will decide to block it to stop "U.S. imperialism", or if in the future the Russian Navy, Chinese, or some unexpected force will try to use it to their advantage. Heck, based on what is happening in the Red Sea, even Pirates might get a good idea to start up there.

Cuba policy is complicated and our imperial actions historically are pretty indefensible. But, you can not argue that the base is not strategically located.

by Hilina 2009-01-13 05:03AM | 0 recs
Re: Panama Canal

There are actually pirates off the Mosquito Coast. They largely attack yatchs.

Panama is capable of defending the canal but the canal isn't what it used to be. It's outdated and too small to handle the supersized container ships now used in global trade. Rail across the isthumus now accounts for something like 20% of goods crossing Panama. The notion that Venezuela is going to block the canal is just plain nonsense. Chavez may be an ass but he's not an idiot. He's largely bluster. Trust me, I am no fan of Chavez and not to say he's harmless but his bark is worst than his bite.

by Charles Lemos 2009-01-13 01:14PM | 0 recs
I think the lease has been violated

I've this argument before, but wonder why hasn't Cuba taken these specific arguments as the US breaking terms of use to the courts. You would think if they really wanted it back they would take it to court.

by FLS 2009-01-13 05:17AM | 0 recs
Re: I think the lease has been violated

Ahmm which court?

by newms 2009-01-13 05:58AM | 0 recs
Re: Never Mind Just Closing

I have no problem with beginning the normalization of relations with Cuba, and I agree that the Guantanamo prison should be shut down ASAP.  However, unless and until Cuba seeks legal recourse, I don't see why we should establish a policy of voluntarily surrendering territory that is used for military bases.  I humbly suggest that such a policy may have unforeseen consequences.

As for the imperialism argument, I have to think it is weakened to some degree by the fact that there is virtually no one left alive who lived at the time that Cuba exercised sovereignty over Guantanamo Bay.  What was once imperialism has now become the status quo (as has occurred throughout America's history).

Anyway, if Cuba feels strongly about this, it should press its case in a court of law.

by rfahey22 2009-01-13 05:54AM | 0 recs
Give it back

It's Cuban land and serves no strategic purpose that couldn't be fulfilled elsewhere.

by mikeinsf 2009-01-13 09:02AM | 0 recs
Re: Never Mind Just Closing Guantnamo, It's Time

This was my proposal for the Truman Scholarship. (I didn't get it, fyi, but was nominated by my university).

by iowabosox 2009-01-13 10:29AM | 0 recs
Guantnamo

While on the subject, how about normalizing relations with Cuba, and then either work out a friendly less combative use of Gitmo, or like suggested give it up.  It serves little strategic use except when Cuba is an enemy.

by moondancer 2009-01-13 10:41AM | 0 recs
Re: Never Mind Just Closing Guantnamo, It's Time

This is one that has had me scratching my head every since I was old enough to understand the concept of Gitmo.  I in no way endorse the Cuban regime.  But why we have a military facility on another country's property without their permission is beyond my understanding.

by SGlennW 2009-01-13 11:11AM | 0 recs
Hawaii

Hawaii was taken unlawfully in a "coup" by white businessmen. But, things were done throughout U.S. history and we are not going back now. Just as we will not give up U.S. territory to Native Americans or illegally taken from Mexico.

Gitmo will eventually be given back to Cuba. Probably after Cuba changes its government, starts negotiating free trade agreements with us, and we start building high rise hotels on the most inexpensive properties in the Caribbean.

by Hilina 2009-01-13 06:48PM | 0 recs

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