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.|
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