Resolution of Issues Regarding Cuba-U.S. Lease of Guantanamo Bay

Since the December 17, 2014, announcement of rapprochement, Cuba has voiced at least three demands or issues regarding its lease of Guantanamo Bay to the U.S. The most serious one is ending the lease and returning this territory to complete Cuban control. The second is the U.S.’ paying for use of the territory since the Cuban Revolution’s takeover of the island in 1959. The third is Cuba’s objection to the U.S.’ establishing and maintaining a prison for detainees after 9/11 and to the U.S.’ alleged mistreatment and torture of those detainees.

Understanding these issues requires an examination of (a) the Cuban war for independence, 1895-1898, and the Spanish-American War of 1898; (b) the terms of seven documents relating to the lease, all of which predate the Cuban Revolution; and (c) the position of the Revolutionary government toward these documents and the lease. [1] In conclusion, this post will discuss methods for resolving these issues.

Before all of that, here are maps and photographs of Guantanamo Bay.

Guant map1

guantanamo.bay

 

 

 

 

Gitmo look west

_245513_us_base_guantanamo300

 

 

 

The Cuban War for Independence and the Spanish-American War [2]

In 1895 Cubans started a revolt or war of independence from Spain, which responded with ferocity, launching its “reconcentrado” campaign that herded 300,000 Cubans into re-concentration camps. Spain’s tactics infuriated many Americans, who began to raise money and even fight on the side of the Cuban nationalists while American businesses with economic interests on the island were worried about the safety of their investments. U.S. President William McKinley wanted an end to the Cuban-Spanish conflict, but demanded that Spain act responsibly and humanely and that any settlement be acceptable to Cuban nationals.

In November 1897, an amicable resolution appeared possible when the Spanish granted the Cubans limited autonomy and closed the re-concentration camps. But after pro-Spanish demonstrators rioted in Havana in January 1898 to protest Spain’s more conciliatory policies, McKinley ordered the U.S. battleship Maine to Havana to protect American citizens and property and to demonstrate that the U.S. still valued Spain’s friendship.

With the Maine safely moored in Spanish waters, the Spanish-American relationship was jolted by the publication in a New York newspaper of a letter by the Spanish minister to the U.S. describing McKinley as “weak and a bidder for the admirations of the crowd” and revealing that the Spanish were not negotiating in good faith with the U.S. Americans saw the letter as an attack on both McKinley’s and the nation’s honor. The American public’s anger only intensified following an explosion on the Maine and its sinking on February 15, 1898, in Havana Harbor, killing 266 crew members. The Navy, on March 21, reported that an external explosion, presumably from a Spanish mine, had destroyed the ship.

With diplomatic initiatives exhausted and the American public wanting an end to the Cuban crisis, McKinley, in mid-April 1898, asked Congress for authority to intervene in Cuba, which it granted. Spain soon broke relations with the U.S., and the U.S. blockaded Cuba’s ports. On April 23, Spain declared war on the U.S. Two days later the U.S. did likewise with the Teller amendment committing the U.S. to the independence of Cuba once the war had ended, disclaiming “any disposition or intention to exercise sovereignty, jurisdiction or control over said island, except for the pacification thereof.”

What became known as the Spanish-American War lasted only a little over three months with U.S. victories in Cuba, Puerto Rico and the Philippines ending in a cease fire on August 12, 1898. Under the Paris Peace Treaty of December 10, 1898, the U.S. obtained Puerto Rico, Guam, and the Philippine Islands while Spain renounced its claim to Cuba, which remained under U.S. military occupation until 1902.

Thereafter, Cuba would be a de facto U.S. protectorate until 1934.

The Lease of Guantanamo Bay

The first five of the seven documents relating to the Guantanamo lease were created during the period that Cuba was a de facto protectorate of the U.S.

  1. Act of Congress (March 2, 1901). On this date, President McKinley signed an Act of Congress that included what was called “the Platt Amendment,” which authorized the U.S. President “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, [and shall include the following: provisions]:
  • “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.”
  • “III. That the government of Cuba consents that the [U.S.] 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 [U.S.], now to be assumed and undertaken by the government of Cuba.”
  • “”VII. That to enable the [U.S.] 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 [U.S.] lands necessary for coaling or naval stations at certain specified points to be agreed upon with the President of the United States.”
  1. Constitution of Cuba (May 20, 1902). On this date, the Constitution of the Republic of Cuba was promulgated, and Article VII of its Appendix provided: “To enable the [U.S.] 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 [U.S.] the lands necessary for coaling or naval stations, at certain specified points, to be agreed upon with the President of the United States.”
  1. U.S.-Cuba Agreement (February 23, 1903). Pursuant to the just mentioned Cuban constitutional provision, on February 23, 1903, the U.S. and Cuba entered into the “Agreement . . . for the Lease of Lands for Coaling and Naval stations.” Its Article I stated that 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 [Guantanamo Bay and Bahia Honda] [3] situated in the Island of Cuba”

This Agreement’s Article II stated, “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.” (Emphasis added.)

This Agreement concluded in Article III, whereby the U.S. “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 [U.S.] of said areas under the terms of this agreement the [U.S.] shall exercise complete jurisdiction and control over and within said areas.”

Unlike most leases, this agreement did not set forth a set period of time for the lease or the compensation or rent to be paid.

  1. Treaty between the United States of America and Cuba (May 22, 1903). This treaty in Article I states, “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, lodgment in or control over any portion of said island.”

Article III provides, “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 VII adds, “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.”

  1. Lease of Certain Areas of Land and Water for Naval or Coaling Stations in Guantanamo and Bahia Honda (July 2, 1903). This instrument details additional terms of the lease in seven articles. Its Article I specified the compensation that the U.S. would pay to Cuba for the leased territories: “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.” Under Article II, the U.S. agreed “that no person, partnership, or corporation shall be permitted to establish or maintain a commercial, industrial or other enterprise within said areas.”

There still was no set period of time for the lease of the territory.

On November 12, 1903, Guantánamo Bay Outer Harbor passed into U.S. hands “without any formality” and was “effected in a quiet manner.”

  1. Treaty between United States of America and Cuba (May 29, 1934)By 1934 there had been changes in the overall relationship between the two countries. The U.S., pursuing President Franklin D. Roosevelt’s “good neighbor” policy, proposed to nullify the previously mentioned May 22, 1903, U.S.-Cuba Treaty. Cuba had become increasingly upset with the earlier treaty’s Platt Amendment granting the U.S. the right to intervene in Cuba, and Cuba welcomed the idea of nullifying the 1903 treaty. Negotiations to that end proceeded quickly; and a new Cuban-American Treaty of Relations was signed on May 29, 1934, and after rapid ratifications by both states it entered into force on June 9, 1934. This effectively ended the U.S. de facto protectorate of Cuba.

The 1934 treaty in Article II also stated: “All the acts effected in Cuba by the [U.S.] 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 added the following language with respect to the naval station at Guantánamo Bay: “The supplementary agreement in regard to naval or coaling station 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 Guantánamo. So long as the United States of America shall not abandon the said naval station of Guantánamo or the two Governments shall not agree to a modification of its present limits, the station shall continue to have the territory it now has, with the limits that it has on the date of the signature of the present Treaty.”

The implication of Article III is that the U.S. at any time can walk away from the lease at Guantánamo (abandon the base), but the Cubans can never revoke the lease.

  1. Change in Amount of Rent (1938). Although the source document has not been located, secondary sources say the annual rent for Guantanamo was changed in 1938 to $4,085 (U.S. Dollars), which was the 1938 equivalent of $2,000 in U.S. gold coins. That term has never been changed. Indeed, the U.S. documents transmitting the annual rent checks in that amount for 2011, 2012 and 2013 merely refer to the July 2, 1903, Lease while stating the amount of $4,085 was “computed in the manner of which the government of Cuba has been advised in connection with previous rental payments.” [4]

Cuba’s Revolutionary Government’s Positions Regarding the Lease

Soon after the Cuban Revolution took over the government in January 1959, it started calling for the U.S. to get out of Guantanamo. Over time Cuba set out four different, and sometimes contradictory, legal arguments for invalidating the lease. Even though some international law experts thought Cuba had a good argument for such invalidation: rebus sic stantibus (fundamental change of circumstances), [5] Cuba never instituted legal proceedings to that end. In addition, while the U.S.S.R. still existed and was a major Cuban ally, the Soviets argued that the lease was an “unequal treaty,” but that legal theory was not embraced by the U.S. and most Western nations.

In addition, Cuba has refused to cash the annual U.S. checks for $4,085 made out to the “Treasurer General of the Republic” (a position that ceased to exist after the Revolution). One such check, however, was cashed in the early days of the Revolution, Cuba says, due to confusion. (Many years ago during a televised interview, Fidel Castro opened a desk drawer in his office to show the collection of uncashed checks.)

At least by 2004, Cuba accepted the lease as valid while asserting that control over Guantanamo “will eventually revert to Cuba because of the nature of the arrangement, ad defined by its domestic law, which prohibits perpetual leases. For example, in 2004, Cuba’s Foreign Ministry stated the arrangement “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.” In short, said Cuba, the lease is valid, but U.S. occupation of the territory is illegal. This argument is ridiculous, in the opinion of this blogger, a retired U.S. lawyer.

There have been at least two U.S. responses to these Cuban arguments of invalidity of the lease. First, under the international legal principle of pacta sunt servanda (the contract is the law between the parties), the lease remained a valid agreement between the two states and Cuba has a legal obligation to adhere to agreements previously entered into despite a change in governments. [6] Second, the revolutionary government’s acceptance of at least one of the annual rent checks was an admission of the lease’s validity or a waiver of Cuba’s objections thereto.

Conclusion

As a retired U.S. lawyer, without doing any legal research, I see potential issues of lease invalidity due to (a) possible undue influence or coercion by the U.S. in establishing the terms of the original lease in 1903 and the modifications in 1934 and 1938; [7] and (b) the U.S. use of Guantanamo possibly exceeding the uses permitted by the lease. Any such claim, however, would be potentially subject, at least in a domestic legal dispute, to the affirmative defenses of waiver, estoppel, ratification, laches and statute of limitations. [8]

The argument for invalidity based on the U.S. use of Guantanamo has been rejected by Professor Strauss. He notes that the lease permits the use of Guantanamo as a “naval station,” which is a term created by the U.S. to allow its Navy to determine the range of activities that could occur at such a “station” and which has been used for fewer functions than a full naval base and more recently as a full naval base. As a result, says Strauss, the limitation on use is “largely meaningless in a practical sense.”

In any event, if Cuba now were to assert a right to terminate the lease, over U.S. objection, then I suggest that such a claim should be submitted to a panel of three arbitrators at the Permanent Court of Arbitration at the Hague under its existing Arbitration Rules. Presumably the U.S. in addition to resisting the claim would have a contingent counterclaim (in the event of an arbitration award of termination) for reimbursement for the value of U.S. improvements to the territory.

Such an arbitration proceeding should also include any Cuban claim for compensation for the U.S. use of Guantanamo for 66 years (1960-2015). If, however, such a claims is only for the $4,085 annual rent established in 1938 for a total of $269,610 (without interest), then the claim should be resolved quickly by the U.S. paying the amount of the claim. If, however, the claim is for a higher amount based upon some theory to void the $4,085 figure and instead use a larger amount of alleged fair market value, then presumably such a claim would be contested by the U.S. and a proper claim for arbitration.

Of course, at any time the two parties could negotiate a new lease of Guantanamo, presumably for a specific term of years, with a right of renewal, at a higher and annually adjustable rent. Such a new lease could also impose limits on U.S. use of the territory such as prohibition of the operation of a prison or detention facility.

====================================================

[1] An excellent overall discussion of the U.S. lease of Guantanamo is contained in Strauss, Cuba and State Responsibility for Human Rights at Guantanamo, 37 So. Ill. Univ. L.J. 533, 533-36 (2013).  See also Notes on Guantanamo Bay; Wikipedia, Guantanamo Bay Navy Base.

[2] This brief summary of the two wars is based on American President: William McKinley: Foreign Affairs, Miller Center, Univ. Virginia.

[3] Bahia Honda was never used by the U.S. and reverted to Cuban control.

[4] Boadle, Castro: Cuba not cashing US Guantanamo rent checks, Reuters (Aug. 17, 2007); Shiffer, Annual rent for Girmo Naval Base: $4,085, payable to Cuba, StarTribune (Oct. 10, 2014) (contains U.S. transmittal advices for rental checks for 2011, 2012 and 2013).

[5] The Vienna Convention on the Law of Treaties that entered into force on January 20, 1980, sets forth “the codification and progressive development of the law of treaties,” which are “international agreement[s] concluded between States in written form and governed by international law.” (Preamble & Art. 2(1)(a).) Its Article 62 recognizes a “fundamental change of circumstances” as a ground for “terminating or withdrawing from” a treaty and defines the conditions for such a ground. Cuba is a party to the treaty, and although the U.S. is not, the State Department has said that this Convention “is already generally recognized as the authoritative guide to current treaty law and practice.” (David Weissbrodt, Fionnuala Ni Aolain, Joan Fitzpatrick, Frank Newman, International Human Rights: Law, Policy, and Process at 127-28 (4th ed. LexisNexis 2009).)

[6] The Vienna Convention on the Law of Treaties notes that “the principles of free consent and of good faith and pacta sunt servanda are universally recognized” and its Article 26 under the heading “Pacta sunt servanda” states, “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

[7] The Vienna Convention on the Law of Treaties in Article 52 provides, “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.”

[8] The Vienna Convention on the Law of Treaties provides in Article 45 that a “State may no longer invoke [breach by the other party or fundamental change of circumstances] if, after becoming aware of the facts: (a) it shall have expressly agreed that the treaty is valid or remains in force or continues in operation . . .; or (b) it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or its maintenance in force or in operation . . . .”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Published by

dwkcommentaries

As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

26 thoughts on “Resolution of Issues Regarding Cuba-U.S. Lease of Guantanamo Bay”

  1. As to this:
    “The implication of Article III is that the U.S. at any time can walk away from the lease at Guantánamo (abandon the base), but the Cubans can never revoke the lease.”

    This quote does not contain a new provision. It is a continuation, although arguably in a more explicit form, of a provision of the lease itself. Article I says –
    “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. ”
    The “implication”, since you use that word, is that if they do not occupy the said areas, they do not have to pay. The only possible new idea is to exclude the possibility, one might argue, that the US could leave, but would retain the right to return, under the language of the original lease. But the original language seems at least as clear on that point.

    The notion that the Cubans could not “revoke” the lease, even if the US violated the terms of the lease, is to read too much into the provision, since that would mean that the Cubans had no rights that the white man needed to respect. A concept that has fallen out of favor. And there is nothing to suggest anything of the kind. Could Cuba exercise force majeure, or eminent domain? It would be interesting. (The US can NOT exercise eminent domain there.)

    The provision that an agreement can be modified by mutual consent hardly needs to be stated.

  2. I left two replies, but I see only one. Possibly the first one did not “take”? I’d hate to write it again – but I will.

  3. Repeating the first set of objections (they disappeared):
    As far as “pacta sunt servanda” (promises must be kept) goes, the US also must adhere to the terms of the lease.
    1. zoning: “and no other” – the prison is a a zoning violation
    2. payment in gold. a check need not be accepted as payment of a debt. Gold is legal tender, a check is not. Plus banking was part of the embargo. An obstacle to cashing it.
    3. mutual defense pact. Hardly needs to be said that this benefit has been withheld from Cuba and was of the essence.

    Related to that, the 1934 Treaty of Relations was violated and breached by the Bay of Pigs. The 1934 Treaty abandoned the “right” to invade unilaterally, yet we “exercised” that “right”. And we failed to protect the Cuban people during that invasion, contrary to the mutual defense pact.

  4. Whoever signed the lease for Cuba was exceeding his powers under the Cuban Constitution, and the United States knew, because they put that provision into the Cuban Constitution by the Platt Amendment. It reads:

    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.

    The US is a foreign power as far as Cuba is concerned. haha. Word for word:

    Que el Goberino de Cuba nunca celebrará con ningún Poder o Poderes extranjeros ningún Tratado u otro convenio que pueda menoscabar o tienda a menoscabar la independencia de Cuba ni en manera alguna autorice o permita a ningún Poder o Poderes extranjeros, obtener por colonización o para propósitos militares o navales, o de otra manera, asiento en o control sobre ninguna porción de dicha Isla.”

  5. Your text says “Second, the revolutionary government’s acceptance of at least one of the annual rent checks was an admission of the lease’s validity or a waiver of Cuba’s objections thereto.”

    What I find most significant in the fact that Cuba cashed one check is that the US recognized that this was a valid negotiation of the check, and it was to Castro and to the new Cuban government to which the obligations of the treaty were owed. Since the treaty can (easily) be seen as a mutual defense pact, it follows that the US had a “duty to protect” the new communist government in Havana. If one insists on reading something into the cashing of a check, that is what I would read into it. The Bay of Pigs, later, would then be a material breach.

    1. You say “Of course, at any time the two parties could negotiate a new lease of Guantanamo, presumably for a specific term of years, with a right of renewal, at a higher and annually adjustable rent. ”

      This is an excellent suggestion, and one that could prove to be a workable, if problematic, approach to many land disputes: Palestine, Indian lands, any really any others. First step: establish who is the rightful owner, and on what basis the present occupier is there. Hard to agree to, but something like that “worked” for Hong Kong and the Panama Canal.

  6. You note :[3] Bahia Honda was never used by the U.S. and reverted to Cuban control.”

    Under the terms of the lease, this means that the lease has (arguably) never gone into effect:
    “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. ”
    Areas – plural.

  7. Regarding sovereignty:
    The Platt Amendment said
    “VII. That to enable the [U.S.] 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 [U.S.] lands necessary for coaling or naval stations at certain specified points to be agreed upon with the President of the United States.”
    Sell or lease. The Cubans did not want to sell.
    But in neither case would sovereignty transfer. When Indians sell land to the US, or Indians buy land from the US, in neither case does sovereignty change. Reservation land is still reservation land. Non-reservation land does not become reservation land.
    And one of the lease documents says explicitly that Cuba retains ultimate sovereignty.
    If Cuba retains sovereignty, it may be that Cuba can exercise eminent domain. Nothing would stop it if this were a foreign company that held the lease. Not sure how different it is that a country holds the lease, via a treaty. Ending the lease via eminent domain is not breaking the treaty (arguably). It is exercising one of the options available under the form of the agreement.

  8. you say
    Presumably the U.S. in addition to resisting the claim would have a contingent counterclaim (in the event of an arbitration award of termination) for reimbursement for the value of U.S. improvements to the territory.

    Could not Cuba ask that the property be returned to its original condition?

  9. you quote
    Article I says –
    “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. ”

    A 1904 $20 GOLD piece is for sale on ebay for $3500, or 175x inflation.
    $2000 worth of these would be 100 of them, costing $350,000.
    Why is this not done? Even assuming the “unit of measure” interpretation of the requirement of “gold coin”.

  10. Could the USA lease another bay to China for a Naval Station? Or perhaps the northern section of Guantanamo Bay?

  11. on February 23, 1903, the U.S. and Cuba entered into the “Agreement . . . for the Lease of Lands for Coaling and Naval stations.” Its Article I stated that Cuba “hereby leases to the United States, for the time required for the purposes of coaling and naval stations,

    For the time required. It does not say “for the time desired”, and even less, “for the time that the United States desires”. One assumes that it means for the time required to carry out the purpose of the lease; namely the mutual defense pact. That time is long over.

  12. As to:
    “Change in Amount of Rent (1938). Although the source document has not been located, secondary sources say”
    1. Michael Strauss has an excellent book called “The leasing of Guantanamo”. It contains many details I have not found elsewhere. He does claim (and shows the government cables in an Appendix) that the rent was (apparently unillaterally) changed in 1973 and again in 1974. In 1974 to the current amount. Stauss does report that when the US went off the gold standard, it did “recalculate” the amount of the rent, using a conversion factor of something like 1.6 paper dollars to gold dollars. This is obviously not a quote from his work, but a recollecction of it. Very small amounts of his book are available online. (I do have the hard copy).
    I dont see how a unilateral government directive or proclamation can alter a requirement of a lease, without the consent of the other party. I conjecture that Cuba was interested in getting the 1903 Treaty of relations renegotiated, and did not want to rock that boat over the matter of the cash amount.
    2. You must have noticed all the careless reporting in secondary sources. The authors report what they imagine must be true, which is then repeated in the New Yorker.

  13. Thank you for such an informative package i didnt know how all this guantanamo thing began now I know thanks once again.

  14. I of course disagree with a lot of the claims you make. Here is another one:
    “Presumably the U.S. in addition to resisting the claim would have a contingent counterclaim (in the event of an arbitration award of termination) for reimbursement for the value of U.S. improvements to the territory.”
    If a landlord gives a tenant the right to paint, that hardly means that when the tenant moves out, they can charge the landlord for the paint job. More likely that that is that landlord could require that the property be reverted to its original condition. or be requested to leave any depreciated capital improvements as they are upon termination of the lease.

  15. You repeat this too convenient excuse:
    “This change was made unilaterally by the U.S. without a signed agreement with Cuba, which acquiesced in the change. (Book at 127-30.)”
    And you also say that the lease can be changed only by mutual consent.
    On the one hand, any lease can be changed by mutual consent. And to say that one party cannot change the terms of a lease to suit himself is almost too obvious to need to be stated. That is why I say that reading in Cuban acquiescence in the context of constant objection with the possible exception of when a puppet government was in charge, and even then not bothering to get the agreement formally changed, is hardly a solid ground for making an argument that the US is “keeping its promises”, despite the constant reminder that “promises must be kept”.

    The reason that colonialists keep saying that the lease can be changed only by mutual agreement is that they see no end date in the lease, and reject any change to introduce an end date by mutual agreement. However the lease does have an end condition, so that the lease can end without a change to the lease being required. This leaves no room for the “pacta sunt servanda” argument. Unfortunately for the US.

  16. I would be interested if you know of any explict handling of the issue of Bahia Honda. It was included in the original lease agreement, and has now dropped out of sight. It is back in Cuabn control. When and how did that happen. Is there anything written on it. Has the lease ever been changed to reflect that development. I see claims that something happened in 1912, but have found nothing to substantiate that claim. Also most writing in English starts with the assumption that all is well, and glosses over any inconvenient thought or ignores any contrary evidence. I attribute most of the sloppiness to belief in the goodness of America, despite all the evidence, as the concepts are not that difficult.

    1. Michael Strauss advises me that the return of Bahia Honda to Cuban control apparently happened quietly and possibly informally, since he has found no documentation whatsoever on the subject. It happened sometime between 1912 and 1916. In 1912 the U.S. and Cuba signed a treaty to return Bahia Honda to Cuban control in exchange for additional land at Guantanamo. The treaty was never ratified so it didn’t formally enter into force, but it’s possible the two countries informally implemented some of its terms. In 1916, the Navy published a comprehensive inventory of all of its domestic and international sites and Bahia Honda was not on it.

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