A Constructive Plot to Return Guantanamo Bay

[struggle4progress]

Friday, 16 March 2007, 10:32 am

Council On Hemispheric Affairs
MONITORING POLITICAL, ECONOMIC AND DIPLOMATIC
ISSUES AFFECTING THE WESTERN HEMISPHERE
Thursday, March 15th, 2007
Cuba, Reports

“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.”
Article II of the Agreement Between the United States and Cuba for the Lease of Lands for Coaling and Naval stations; February 23, 1903

... The Cuban government could use the 1969 Vienna Convention on the Law of Treaties (specifically articles 60 and 62) and the section dealing with the rebus sic stantibus 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 to the Cuban nation. 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. A 2003 lecture given by Dr. Alfred de Sayas, visiting professor of international law at the University of British Columbia, explains that 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 such pacts are terminated when a new sovereign government takes office that is fundamentally opposed to the alliance. Similarly the physical presence by treaty right of a hostile nation on Cuban territory is contrary to modern conceptions of sovereignty and of the sovereign equality of States. Indeed, as Dr. de Sayas argues in his lecture, it is an anomaly that the country that has imposed an embargo on Cuba for more than 40 years insists that it has a right to remain on its sovereign territory.

Moreover, the Guantanamo lease is right now 104 years old, which makes it only logical that it should be due for reconsideration by both governments. A 1967 article entitled “International Law and Guantanamo” (by Gary L. Maris in The Journal of Politics, Vol.29, No. 2, pp.263) declared that the legal term “lease” was not a disguise for the actual cession of Guantanamo to the U.S., 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. This makes it all the more necessary for Washington and Havana to discuss the Bay’s future.

Dr. de Sayas also explained that 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.” Hence, the repeated use of the territory as an internment camp for Haitian and Cuban refugees or as a detention and interrogation centre and prisoner of war camp and torture center is incompatible with the purpose of the treaty. Such actions by the U.S. would arguably bring about a material breach of the agreement justifying unilateral termination by Cuba in accordance with article 60 of the Vienna Convention.

The U.S. has also broken the agreement through another, though perhaps a less forceful, issue: the presence of commercial enterprises at Guantánamo, including a McDonalds. This constitutes a breach of the terms of article III of the supplemental July 1903 agreement between Washington and Havana over Guantanamo, which stipulates that “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." ...

http://www.scoop.co.nz/stories/HL0703/S00272.htm