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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.)

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[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.

Theodore Roosevelt’s Involvement in the U.S. Presidential Election of 1900

A prior post reviewed the U.S. presidential election of 1900, in which Republicans William McKinley and Theodore Roosevelt were the winning candidates for President and Vice President. Now we focus on Roosevelt’s involvement in that election.

Attending the Republican Party’s National Convention

The involvement began at the Republican Party’s national convention in Philadelphia in June. Although Roosevelt repeatedly had opposed suggestions that he be the Party’s vice presidential nominee, he did attend the convention as a New York delegate-at-large. Once there, he made dramatic arrivals in the city and on the convention floor.

Roosevelt commanded the attention of the entire convention when he seconded the nomination of McKinley. In the words of his biographer, Edmund Morris, Roosevelt “moved confidently through his prepared text, speaking at a torrential speed unusual even for him, his body trembling with the force of his gestures.”[1] He said that the Republican Party in the prior election “did not promise the impossible . . . and kept our word. . . . [the U.S.] has reached a pitch of prosperity never before attained . . . . So it has been in foreign affairs [as well].” He concluded his seconding speech with these words:

“We stand on the threshold of a new century big with the fate of mighty nations. . . . The young giant of the West stands on a continent and clasps the crest of an ocean on either hand. Our nation, glorious in youth and strength, looks into the future with eager eyes and rejoices as a strong man to run a race. . . . We challenge the proud privilege of doing the work that Providence allots us, and we face the coming years high of heart and resolute of faith that to our people is given the right to win such honor and renown as has never yet been vouchsafed to the nations of mankind.”

On the convention’s vote on his own vice presidential nomination, Roosevelt cast the only negative vote, but immediately afterwards told party officials that he would be a loyal member of the team. He said, “I am as strong as a bull moose, and you can use me to the limit taking heed of but one thing and that is my throat.”[2]

Roosevelt confirmed his acceptance of the nomination in a lengthy letter of September 15^th (two and a half months after the convention) that repeated some of the points of his seconding speech at the convention and that attacked the issues promoted by William Jennings Bryan.

Roosevelt’s letter also addressed the “serious problem” presented by “the great business combinations . . . [or] trusts.” This real problem was “immensely aggravated” by “honest but wrong-headed attacks on our whole industrial system in the effort to remove some of . . . [its] evils. . . . No good whatever is subserved by indiscriminate denunciation of corporations generally, and of all forms of industrial combination in particular.” Instead, the “real abuses” need to be attacked first by finding out and publicizing the facts regarding “capitalization, profits and all else of importance.” Those facts would “enable us to tell whether or not certain proposed remedies would be beneficial.”

Campaigning

As indicated in a prior post, Roosevelt conducted a real “whistle-stop” campaign from the rear of a railroad train in 1900. He covered 21,000 miles, giving 673 speeches in 24 states to an estimated three million people. These speeches defended the gold standard and McKinley’s foreign policy. He attacked Bryan for wanting to “paralyze our whole industrial life” and for appealing to “every foul and evil passion of mankind.”

Theodore Roosevelt “Whistle-Stop” Speech 1900

The Almanac of Theodore Roosevelt’s compilation of his “Complete Speeches,” however, only has six campaign speeches, three of which are rebuttals of William Jennings Bryan.[3] The other three bear comment.

“The Labor Question” Speech

Roosevelt on his campaign train from Quincy, Illinois to Chicago in September was accompanied by three railroad executives: my maternal great-great-uncle, William Carlos Brown, then General Manager of the Chicago Burlington & Quincy Railroad; Theodore P. Shonts, then the President of the Illinois & Iowa Railroad (“I&I RR”);[4] and Paul Morton, then the President of the Santa Fe Railroad (“the Santa Fe”).[5]

I have not been able to discover the substance of the conversations the four of them had on the train, but they presumably discussed the issue of federal regulation of business, especially railroads. The three railroaders presumably also were present in Chicago on Labor Day when candidate Roosevelt gave a remarkable speech, even to 21^st century ears, on “The Labor Question.”[6]

The general theme of the speech was the importance of “the spirit of brotherhood in American citizenship” that is fostered by association with others not in our “own little set.” Roosevelt emphasized this from his own life in working with “mighty men of their hands” in the Northwest cattle country, with farmers and with “skilled mechanics of a high order.” He added that he had been “thrown into intimate contact with railroad men [and] . . . gradually came to the conclusion that [they] . . . were about the finest citizens there were anywhere around.” Presumably the three railroad executives with him on that trip were included in that group.

Therefore, Roosevelt argued, we “must beware of any attempt to make hatred in any form the basis of action.” He continued, “our chief troubles come from mutual misunderstanding, from failing to appreciate one another’s point of view [and] the great need is fellow feeling, sympathy, brotherhood.”

At the end of the speech, Roosevelt sketched his approach to the issues of the day. He said, “Before us loom industrial problems large in their importance and in their complexity. The last half-century has been one of extraordinary social and industrial development. . . . It is not yet possible to say what shall be the exact limit of influence allowed the State, or what limit shall be set to that right of individual initiative. . . .” Therefore, undertaking efforts to change the State’s involvement in these areas should be with caution and humility. “We can do a great deal when we undertake soberly, to do the possible. When we undertake the impossible, we too often fail to do anything at all.”

The “Free Silver, Trusts and the Philippines” Speech

On September 7^th in Grand Rapids, Michigan, Roosevelt castigated Bryan’s “Free Silver” proposal as “the one and only way to insure wide-spread industrial and social ruin.”

Roosevelt also touched on the problems of industrial combinations or trusts that had been raised by Bryan. Roosevelt conceded that “trusts have produced great and serious evils. There is every reason why we should try to abate these evils and to make men of wealth, whether they act individually or collectively, bear their full share of the country’s burdens and keep as scrupulously within the bounds of equity and morality as their neighbors.” However, he added, “wild and frantic denunciation does not do them the least harm and simply postpones the day when we can make them amenable to proper laws.” Repeating his letter of acceptance of the vice presidential nomination, Roosevelt said the first thing was to learn “exactly what each corporation does and earns,” thereby enabling the formulation of “measures for attacking the . . .[ evils] with good prospects of success.”

The “Prosperity, Unity and National Honor” Speech

Roosevelt’s last major speech before the November 6^th election was on October 26^th at New York City’s old Madison Square Garden.

According to the New York Times, when he arrived at the Garden, “the buzzing sound of many voices became a roar of cheers and the 14,000 people . . . yelled with all their might as they waved small and large American flags. . . . For ten minutes the uproar was deafening. . . . Just as the enthusiasm had reached a climax Gov. Roosevelt spied his wife in [the audience] and bowed and smiled. For the first time his teeth were in plain sight. This little act aroused the people to renewed cheering, drowning the loudest noise which could be produced by two bands of fifty men playing ‘A Hot Time in the Old Town Tonight.’”[7]

Eventually Roosevelt spoke. He lambasted Bryan’s “Free Silver” proposal and his seeking “to sow seeds of malice and envy” in the manner of Robespierre. “No greater evil, oh, my fellow countrymen, can be done this nation of ours than to teach any group of Americans that their attitude should be one of sullen hatred and distrust of their fellows.” Such “bitter class hatreds . . . leads ultimately to class strife, . . . to the loss of liberty . . . [whose] most dangerous enemy [is] anarchy, license, mob violence in any form.”

He concluded by appealing to his fellow countrymen “to keep the conditions under which we have grown so prosperous” and to maintain “the honor of a mighty nation.”

Conclusion

After winning the 1900 election, President McKinley and Vice President Roosevelt were inaugurated on March 4, 1901. In his short inaugural address, Roosevelt said, “For weal or for woe, for good or for evil, . . . [playing “a leading part in shaping the destinies of mankind”] is true of our own mighty nation. Great privileges and great powers are ours, and heavy are the responsibilities that go with these privileges and these powers. . . . We belong to a young nation, already of giant strength, yet whose political strength is but a forecast of power that is yet to come. We stand supreme in a continent, in a hemisphere.”

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[1] Edmund Morris, The Rise of Theodore Roosevelt at 767-68 (Random House; New York; 1979).

[2] Id. at 768. In 1912 after the Republican Party re-nominated William Howard Taft as its presidential candidate, over Roosevelt’s opposition, Roosevelt organized the Progressive Party (nicknamed the Bull Moose Party) and ran as its presidential candidate. With these two parties splitting the conservative vote, the Democratic presidential candidate, Woodrow Wilson, won the election.

[3] The rebuttals of Bryan were in Detroit on September 7^th and Evansville, Indiana on October 12^th and in a published letter of October 15^th.

[4] Shonts grew up in Centerville, Iowa, and after graduating from Illinois’ Monmouth College, worked in Iowa as a bookkeeper, then an attorney and as an executive of a construction company that built stretches of railroad track. This lead to his becoming an executive for the I&IRR. In 1905 then President Roosevelt appointed Shonts to be the Chairman of the Isthmian [Panama] Canal Commission, a position he held until March 1907, when he became President of the Interborough Rapid Transit Company, which operated New York City’s rapid transit system.

[5] Morton was born in Michigan and grew up in Nebraska as the son of a former U.S. Secretary of Agriculture; his older brother was the founder of Morton Salt. In 1904 President Roosevelt appointed Morton as Secretary of the Navy, but in 1905 he was forced to resign after evidence surfaced that the Santa Fe under his presidency had granted illegal rebates. Morton, however, then became the President of the Equitable Life Assurance Society in New York City.

[6] This account of the Quincy-Chicago trip is based on a January 30, 1907, letter from Brown to Schonts saying “I often think of the trip from Quincy to Chicago, when . . . you and Paul [Morton] and I had the pleasure and the honor of a ride across Illinois with Theodore Roosevelt, then a candidate for Vice-President.” (Image (# 71-0572) provided courtesy of the Library of Congress Prints and Photographs Divisions and Theodore Roosevelt Center at Dickinson State University, www.theodorerooseveltcenter.org.) I plead for anyone who has more information about the Quincy-Chicago trip or the discussions the three railroad executives had with Roosevelt to share such information in a comment to this post.

[7] Gov. Roosevelt Speaks, N.Y. Times (Oct. 27, 1900).

The U.S. Presidential Election of 1900

The U.S. presidential election of 1900 [1] pitted incumbent Republican President William McKinley [2] against Democrat William Jennings Bryan.[3]

Their vice presidential candidates were respectively Republican Theodore Roosevelt [4] and Democrat Adlai E. Stevenson.[5]

After four years in office, President McKinley’s popularity had risen because of his image as the victorious commander-in-chief of the Spanish-American War of 1898[6] and because of the nation’s general return to economic prosperity. The Republicans made a spirited defense of America’s interests in foreign markets. They advocated expanding ties with China, a protectorate status for the Philippines, which recently had been acquired as a result of the War, and an antitrust policy that condemned monopolies while approving the “honest cooperation of capital to meet new business conditions” in foreign markets.

Popular campaign slogans for the Republicans were “Four More Years of the Full Dinner Pail” (“A Full Dinner Pail”); “Let well enough alone”; “advance agent of prosperity”; and “William McKinley, a Western man with Eastern ideas; and Theodore Roosevelt, an Eastern man with Western characteristics.”

During the campaign Bryan repeated his 1896 call for free silver even though the recent discoveries of gold in Alaska and South Africa had inflated the world’s money supply and increased world prices. As a result, U.S. farmers were reaping greater profits and were not upset with gold as the monetary standard. The Democrats also emphasized expansionism and protectionism as well as opposition to the emergence of an American empire.

McKinley campaigned from the “Front Porch” of his home in Canton, Ohio where in one day he greeted 16 delegations and 30,000 supporters. Theodore Roosevelt conducted a real “whistle-stop” campaign from the rear of a railroad train. He covered 21,000 miles, giving 673 speeches in 24 states to an estimated three million people.[7]

In the November 6, 1900, election McKinley and Roosevelt won the popular vote: 7,228,864 votes (51.6 percent) to Bryan and Stevenson’s 6,370,932 votes (45.5 percent)—a gain for the Republicans of 114,000 votes over their total in 1896. McKinley and Roosevelt received nearly twice as many electoral votes as Bryan did. Below is a map showing the Republican states in red and the Democrats in blue.

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[1] The 1900 election was in some respects a rerun of the 1896 election when McKinley defeated Bryan. During a deep economic depression, McKinley’s “front porch” campaign advocated “sound money” (the gold standard unless altered by international agreement) and promised that high tariffs would restore prosperity. Bryan, on the other hand, lambasted Eastern moneyed classes for supporting the gold standard at the expense of the average worker. At the Democratic Convention that year he delivered a speech supporting bimetallism or “free silver” and concluding with what became the famous exclamation: “You shall not crucify mankind upon a cross of gold.”

[2] Before his first term as President (1897-1891), McKinley served in the Union Army in the Civil War (1861-1865), practiced law (1967-1877) and served in the U.S. House of Representatives (1867-1891) and as Governor of Ohio (1992-1896). At the time of the 1900 election he was 57 years old.

[3] Bryan was a Nebraska lawyer who had served in Congress (1891-1895). In addition to his 1896 and 1900 presidential campaigns, he was the Democratic presidential candidate in 1908 and was the U.S. Secretary of State (1913-1915). In 1925 he obtained additional fame or notoriety as the lawyer for the prosecution of a teacher by the name of Scopes for teaching evolution with Clarence Darrow as the defense counsel. A jury guilty verdict was reversed on appeal.

[4] Roosevelt, who then was the 42-year old Governor of New York, had been a New York State Assemblyman (1882-1884), a cowboy in North Dakota (1884-1867), a U.S. Civil Service Commissioner (1887-1895), New York City Police Commissioner (1895-1897), U.S. Assistant Secretary of the Navy (1897-1898) and Colonel in the U.S. Volunteer Calvary Regiment (“the Rough Riders”) (1898). Roosevelt did not seek or want the vice presidential nomination, but leaders of the New York State Republican Party did not like Roosevelt and wanted him out of state politics. As a result they pressured McKinley to accept Roosevelt as his new vice-presidential candidate. The latter’s great popularity among most Republican delegates led McKinley to pick him as his new running mate.

[5] Stevenson was U.S. Vice President (1893-1897) and previously a Congressman (1875-1877 and 1879-1881) and U.S. Assistant Postmaster General (1885-1889). He also was the grandfather of Adlai E. Stevenson II, who was Governor of the State of Illinois (1949-1953) and the unsuccessful Democratic presidential candidate (1952 and 1956).

[6] As a result of the War, Spain relinquished sovereignty over Cuba and ceded the Philippine Islands, Puerto Rico and Guam to the U.S. for the sum of $20 million.

[7] A subsequent post will examine some of Roosevelt’s campaign speeches.