Does Cuba Have a Right To Terminate the U.S. Lease of Guantanamo Bay?

Whether Cuba has a legal right to terminate its lease of Guantanamo Bay to the U.S. is an important issue that has been addressed by Michael J. Strauss, an expert in international relations with a specialty in territorial leases by states. [1] A prior post referred to his 2013 article that touched on this topic, and this post is based upon his more extensive discussion of the issue in his 2009 book and a 2014 article. His book also helps clarify the history regarding the amount of the rent charged to the U.S. under the lease. [2]

Does Cuba have a legal right to terminate the lease?

As the lease does not grant Cuba an express right of termination and as there has been no decision by a court or arbitrator on the validity of any other purported termination right, no definitive answer can be given as to whether Cuba has a legal right to terminate the lease. At least the following four theories have been suggested for such a result.

First, after the Revolution, Cuba asserted that the lease was perpetual and, therefore, invalid. For example, a 1970 book by the Cuban Ministry of Foreign Affairs asserted, “The contract for the lease in perpetuity . . . lacks 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 the same reason, the object and the reason are illegal; c) consent was wrested through irresistible and unjust moral violence.” (Book at 104, 171.)

Strauss, however, rejects the notion that the lease is perpetual. As noted in the prior post, the lease does not have a set termination date, unlike most U.S. leases (commercial and residential) and most leases “at the state level” (or “are otherwise open to termination by various means”). (Book at 106.) The absence of a termination date, however, does not mean that the lease is perpetual as most perpetual “leases [at the state level] . . . tend to explicitly [so] specify.” (Book at 107.)

Moreover, “the lease has had clearly stated conditions by which it can be ended.” The original 1903 lease was for “the time required for the purposes of [U.S.] coaling and naval stations.” And the 1934 treaty, reconfirming the lease, provided that it could be terminated by U.S. abandonment of Guantanamo Bay or by mutual agreement. (Book at 108, 215, 233.)

In addition, on two occasions after the Cuban Revolution, the U.S. has considered terminating the lease. One was in U.S. internal discussions about ways to resolve the Cuban Missile Crisis of 1962, but that idea was rejected internally and not publicly disclosed. (Book at 109-12.) The second was the idea’s incorporation in section 201 of the Helms-Burton (Libertad) Act of 1996 requiring the U.S. in order to provide assistance to a hoped-for free and independent Cuba to “be prepared to enter into negotiations . . . to return the [U.S.] Naval Base at Guantanamo to Cuba or to renegotiate the present agreement under mutually agreeable terms.” (Book at 112-14, 249-50.)

A second legal theory for Cuba’s termination of the lease is a fundamental change in circumstances (rebus sic stantibus) from the lease’s negotiation and signing in 1903 to today. This theory is covered by Article 62 of the Vienna Convention on the Law of Treaties and was discussed in the prior post. Strauss discusses the views on this issue by international legal scholars and notes the reluctance of international tribunals to invoke this ground. Another difficulty with this theory is the passage of time (over 112 years). As a result, Strauss does not see it as a winning approach for Cuba. (Book at 114-19.) Related to this theory is the 1970 argument by Cuba that the purpose of the lease had ceased to exist: the purpose of the 1903 lease (enable the U.S. to maintain Cuba’s independence and protect its people) was negated by the 1934 treaty’s emphasis on friendly relations between the two countries and that treaty’s purpose was negated by the hostile relations after the Cuban Revolution. (Book at 171.)

A third legal theory, also discussed in the prior post, would be the argument that the lease was procured by “the threat of force or use of force in violation of the principles of international law embodied in the [U.N.] Charter” under Article 52 of said Vienna Convention. That Convention, however, provides in Article 4 that it can be used only by states that are parties to the Convention and only after they became parties, and Cuba became such a party on September 9, 1998. Moreover, the U.N. was not in existence when the lease was signed in 1903. Nor, says Strauss, has “a new peremptory norm of general international law emerged” on this issue that could be a basis for a Cuban claim of a right to terminate the lease. (Book at 119-21.) This theory was put forward in 1970 as part of an argument advanced in a book by Cuba’s Foreign Ministry. (Book at 171.)

The fourth legal theory for a Cuban claim to a right to terminate would be based on alleged U.S. breach of the lease. This is covered by Article 60 of said Vienna Convention and is limited to a “material breach,” which for present purposes is “the violation of a provision essential to the accomplishment of the object or purpose of the treaty.” Strauss discussed two possible grounds for this theory:

  • The lease restricts U.S. use of Guantanamo Bay to a “coaling station” or a “naval station,” and Cuba would have to argue and prove that the U.S. has exceeded those uses. Strauss is skeptical of such a general argument because the U.S. consistently has opted for a broad interpretation of these limitations with Cuba’s tacit agreement and because it should be difficult to satisfy the definition of “material” breach. However, the U.S. use of Guantanamo as a facility for detention of alleged terrorists after 9/11 and the U.S.’ alleged violations of the human rights of such detainees would be a stronger claim reinforced by consistent Cuban objections to such uses and by the remote possibility that Cuba could be subject to liability for any human rights violations at the Base. (Book at 121-23, 144-55, 174; Cuba Responsibility.)
  • In Article III of the second part of the 1903 lease the U.S. “agrees that no person, partnership, or corporation shall be permitted to establish or maintain a commercial, industrial or other enterprise within [Guantanamo].” The U.S. has clearly breached this provision by having a McDonald’s Restaurant and a bowling alley on the site, but it is difficult to see such ventures as a “material breach” of the lease. A stronger argument for such a claim could be built on the U.S.’ more recently having private-contractor employees participate in the interrogation and alleged abuse of detainees. Such an argument also ties in with the assertion that the U.S.’ use of Guantanamo as a detention facility and its alleged abuse of detainees constitutes a material breach of the lease. But do such breaches affect the object and purpose of the lease and thus constitute a material breech? (Book at 123; Private Sector; Cuba Responsibility.)

The Amount of the Rent

The original 1903 lease called for annual rent of $2,000 in gold coin for Guantanamo Bay and Bahía Honda without a breakdown for the two territories. Because the Guantanamo Bay territory constituted 94.5% of the total territory, the rent hypothetically could be divided on that basis, resulting in annual rent for Guantanamo of $1,890. This amount, argues Strauss, was “considerably higher than what any other party would have paid in 1903 for renting the same territory.” In other words, the rent was a material element, not a token or trivial amount. (Book at 126.)

In 1916, however, the U.S. presumably abandoned Bahía Honda, and the rent remained at $2,000 in gold coin, which in Strauss’ judgment was still in excess of the fair market value of the Guantanamo territory. (Book at 127.)

In 1933, at the start of the Great Depression, the U.S. left the gold standard, and the next year (1934), the U.S. Dollar was devalued with “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 [U.S.] began paying annually to Cuba, by U.S. government check, starting in 1934.” This change was made unilaterally by the U.S. without a signed agreement with Cuba, which acquiesced in the change. (Book at 127-30.)

Similar changes were made unilaterally by the U.S. in 1973 with an increase of the annual rental check to $3,676.50 (based upon a 1972 revision in the value of the old U.S. gold dollar) and in 1974 to $4,085 (based upon a 1973 revision in the value of the old U.S. gold dollar). (Book at 130-31.) [3]

As mentioned in a prior post, since 1974 the $4,085 figure has continued to be used by the U.S. for the annual rental checks that have not been cashed by Cuba since the Cuban Revolution take-over of the government in 1959 (except for the first one in 1959). (Book at 136-37).

As Strauss recognizes, the rental amount has never been adjusted to reflect ever changing fair market values of the territory. As a result, the annual rental for at least the half-century after the Cuban Revolution has become a token payment. (Book at 131-32.)

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

[1] Strauss is Lecturer in International Relations at the Centre d’Etudes Diplomatiques et Stratégiques, Paris, specializing in territorial leases as phenomena of international relations and international law for resolving sovereignty disputes. Prior to 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 above Centre 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 International Leases in Resolving International Sovereignty Disputes: A Comparative Study.

[2] The Strauss article that was cited in the prior post is Cuba and State Responsibility for Human Rights at Guantanamo, 37 So. Ill. Univ. L.J. 533, 533-36 (2013) [hereafter “Cuba Responsibility”].  This post is based upon Strauss’ The Leasing of Guantanamo Bay (Praeger International 2009) [hereafter “the Book”] and U.S. Socialism in Cuba: Implications of Prohibiting the Private Sector at Guantanamo Bay, 24 Am. Soc’y for Study of Cuban Economy 129 (2014) [hereafter “Private Sector”]

[3] The earlier post erroneously asserted the $4,085 rental fee started in the mid-1930’s.

 

 

 

 

 

 

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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.

16 thoughts on “Does Cuba Have a Right To Terminate the U.S. Lease of Guantanamo Bay?”

  1. Comment: US. Discussions with Cuba About Using Guantanamo Bay for Detention of Global War on Terrorism Suspects?

    An article discusses the background of Jeffrey DeLaurentis, the current Head of Mission of the U.S. Interests Section in Havana, as the potential next U.S. Ambassador to Cuba.

    In passing, it says the following: “DeLaurentis also was ‘instrumental’ in discussions with Cuban officials over the decision by U.S. President George W. Bush’s administration to use the Guantanamo naval base in eastern Cuba to house prisoners held on terrorism charges following the Sept. 11 attacks.”
    “He always sort of quietly pushed the envelope with Cuban officials, but they always gave him a lot of credit,” Huddleston said. “He was always spot-on in interpreting Cuban motives and actions.”
    This suggests that Cuba consented to the use of Guantanamo Bay for this purpose. If true, it would negate Cuba’s strongest argument that the detention facility is not an authorized use of the territory and that, therefore, the U.S. has breached the lease.
    Does anyone have more information on this topic?
    ===============================
    Assoc. Press, Top American diplomat in Cuba in Line to Head New Embassy, N.Y. Times (July 2, 2015), http://www.nytimes.com/aponline/2015/07/02/world/americas/ap-cb-cuba-us-diplomat-.html.

  2. Quoting from the above:
    ” the purpose of the 1903 lease (enable the U.S. to maintain Cuba’s independence and protect its people) was negated by the 1934 treaty’s emphasis on friendly relations between the two countries ”

    Yes the 1903 lease was part of a mutual defense pact. It is not clear how a mutual defense pact is negated by friendly (friendlier) relations between the two countries. I can see that there is a desire to try to undercut the purpose of the lease, but this line of thinking does not even make sense. Or am I missing the point of it?

  3. Quoting from the above
    ” the argument that the lease was procured by “the threat of force or use of force”

    It seems true that the lease was procured under duress. Duress may not be a violation of the Vienna Convention for the reasons that you give, but that does not make the lease less reprehensible, especially since the offense is ongoing. A lease is a contract, and a contract is an exchange of benefits. Cuba has received no benefit from the lease for some time, paper checks not being a benefit contemplated under the lease, and it is only the implicit threat of force that keeps the US in possession.

  4. Quoting from the above
    “Strauss is skeptical of such a general argument because the U.S. consistently has opted for a broad interpretation of these limitations with Cuba’s tacit agreement”

    Strauss may be skeptical and the US may argue for a broad interpretation, but the fact is that Cuba is the weaker country, and has been the subject of invasion, and has suffered attempts at assassination, and is at present the victim of an economic blockade. The US in the meantime has shown that it is willing to kill heads of state who oppose US interests, and destroy civil society. It is hypocritical to demand that in this hostile environment, that Cuba say anything.

  5. Quoting from above
    “The earlier post erroneously asserted the $4,085 rental fee started in the mid-1930’s.”

    I saw that.

  6. Quote from above
    “This suggests that Cuba consented to the use of Guantanamo Bay for this purpose. If true, it would negate Cuba’s strongest argument that the detention facility is not an authorized use of the territory and that, therefore, the U.S. has breached the lease.”

    Interesting. Would you not expect this type of change to the lease to be accompanied by a written document. It is not a question of an interpretation of a word. A verbal agreement to change a written agreement seems inappropriate.
    Also, it would not demonstrate that the US did not breach the lease, but only that this action did not breach the lease. The US *did* breach the lease in other ways (Kennedy’s anticipatory breach, for example), and there is also the question of whether the lease has ever come into effect, since the US has not yet, and now never will, occupied the second parcel.

    1. If (say) a verbal agreement was not made and that raised a claim of a material breach, then it seems that that type of change would need to be made in writing, as a matter of contractual and judical policy. One cannot expect a judge to try to determine states of mind years later.

  7. You say in the lead “As the lease does not grant Cuba an express right of termination”.
    Do any leases do that? In any case, the lease does say “for the time required”, which certainly seems to expect that will come a time when “it is not required”. – ie, that this is not intended as an eternal or perpetual lease. And any leasor may have the right to terminate a lease for a material breach, if no more appriopriate remedy is available. And finally, just as a marriage does not have a termination date, yet marriages do end, in many ways, there are conditions that give rise to the termination of the lease, not all of them hostile. When the “ending conditions” for the lease come into existence, the lease is over. Cuba no longer requires the naval base to secure its independence, and so that purpose of the lease has been fulfilled. The lease is now over.

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