Cuban President Raul Castro’s Major Speech at the Summit of the Americas

On April 10 and 11, Cuba for the first time was welcomed to the Summit of the Americas. Presidents Raul Castro and Barack Obama exchanged handshakes and friendly greetings, and their speeches promised commitment to the process of reconciliation. Other leaders of the Americas celebrated this demonstration of reconciliation.

On April 11th after President Obama’s speech that was discussed in a prior post, President Castro delivered his major Summit speech, most of which was a critical review of the history of U.S. relations with Cuba and other Latin American countries.

This post contains substantial extracts from Castro’s speech. Other posts will examine the two presidents’ subsequent private meeting at the Summit plus Obama’s comments on other subjects and the reactions from other leaders.

 President Castro’s Speech

President RAul castro
President Raul Castro

“In 1800, there was the idea of adding Cuba to the [U.S.] to mark the southern boundary of the extensive empire. The 19th century witnessed the emergence of such [U.S.] doctrines as the Manifest Destiny, with the purpose of dominating the Americas and the world, and the notion of the ‘ripe fruit’, meaning Cuba’s inevitable gravitation to the [U.S.], which looked down on the rise and evolution of a genuine rationale conducive to emancipation.”

“Later on, through wars, conquests and interventions that expansionist and dominating force stripped Our America of part of its territory and expanded as far as the Rio Grande.”

“After long and failing struggles, José Martí organized the ‘necessary war’ [for independence against Spain], and created the Cuban Revolutionary Party to lead that war and to eventually found a Republic ‘with all and for the good of all’ with the purpose of achieving ‘the full dignity of man’. . . . Martí committed to the duty ‘of timely preventing the [U.S.] from spreading through the Antilles as Cuba gains its independence, and from overpowering with that additional strength our lands of America.’”

On “April 11, 1898, the President of the [U.S.] requested Congressional consent for military intervention in the [Cuban] independence war already won with rivers of Cuban blood, and that legislative body issued a deceitful Joint Resolution recognizing the independence of the Island ‘de facto and de jure.’ Thus, [the U.S.] entered [this war] as [Cuba’s supposed] ally and seized the country as an occupying force.”

“Subsequently, an appendix was forcibly added to Cuba’s Constitution, the Platt Amendment, that deprived it of sovereignty, authorized the powerful neighbor to interfere in [Cuba’s] internal affairs, and gave rise to Guantánamo Naval Base, which still holds part of our territory without legal right. It was in that period that the [U.S.] invaded the country, and there were two military interventions and support for cruel dictatorships.”

At the time, the prevailing [U.S.] approach to Latin America was the ‘gunboat policy’ followed by the ‘Good Neighbor’ policy. Successive interventions ousted democratic governments and in twenty countries installed terrible dictatorships, twelve of these simultaneously and mostly in South America, where hundreds of thousands were killed. President Salvador Allende [of Peru] left us the legacy of his undying example.”

“It was precisely 13 years ago that a [U.S.] coup d’état staged against beloved [Venezuelan] President Hugo Chavez Frías was defeated by his people. Later on, an oil coup would follow.”

“On January 1st, 1959, sixty years after the U.S. troops entered Havana, the Cuban Revolution triumphed and the Rebel Army commanded by Fidel Castro Ruz arrived in the capital.”

“On April 6, 1960, barely one year after victory, [U.S.] Assistant Secretary of State Lester Mallory drafted a wicked memorandum, declassified tens of years later, indicating that ‘The majority of Cubans support Castro […] An effective political opposition does not exist […]; the only foreseeable means of alienating internal support [to the government] is through disenchantment and disaffection based on economic dissatisfaction and hardship […] to weaken the economic life of Cuba […] denying it money and supplies to decrease monetary and real wages, to bring about hunger, desperation and overthrow of government.’”

“We have endured severe hardships. Actually, 77% of the Cuban people were born under the harshness of the blockade, but our patriotic convictions prevailed. Aggression increased resistance and accelerated the revolutionary process. Now, here we are with our heads up high and our dignity unblemished.”

“When we had already proclaimed socialism and the people had fought in the Bay of Pigs to defend it, President Kennedy was murdered, at the exact time when Fidel Castro, leader of the Cuban Revolution, was receiving [Kennedy’s] message seeking to engage Cuba in a dialogue.”

“After the [U.S.] Alliance for Progress, and [after] having paid our external debt several times over while unable to prevent its constant growth, our countries were subjected to a wild and globalizing neoliberalism, an expression of imperialism at the time that left the region dealing with a lost decade.”

“Then, the [U.S.] proposal of a ‘mature hemispheric partnership’ resulted in the imposition of the Free Trade Association of the Americas (FTAA), –linked to the emergence of these Summits– that would have brought about the destruction of the economy, sovereignty and common destiny of our nations, if it had not been derailed at [the Fourth Summit of the Americas at] Mar del Plata [Argentina] in 2005 under the leadership of Presidents Kirchner, Chavez and Lula. The previous year, Chavez and Fidel had brought to life the Bolivarian Alternative known today as the Bolivarian Alliance for the Peoples of Our America.”

“We have expressed to President Barack Obama our disposition to engage in a respectful dialogue and work for a civilized coexistence between our states while respecting our profound differences. I welcome as a positive step his recent announcement that he will soon decide on Cuba’s designation in a list of countries sponsor of terrorism, a list in which it should have never been included.”

“Up to this day, the [U.S.] economic, commercial and financial blockade is implemented against the island with full intensity causing damages and scarcities that affect our people and becoming the main obstacle to the development of our economy. The fact is that it stands in violation of International Law, and its extraterritorial scope disrupts the interests of every State.”

“We have publicly expressed to President Obama, who was also born under the blockade policy and inherited it from 10 former Presidents when he took office, our appreciation for his brave decision to engage the U.S. Congress in a debate to put an end to such policy.” In an apparent extemporaneous addition, Castro said, “I apologize to Obama for expressing myself so emotionally. President Obama has no responsibility for this. There were 10 presidents before him; all have a debt to us, but not President Obama. . . . I have read his books — parts of them — and I admire his life.”

“This and other issues should be resolved in the process toward the future normalization of bilateral relations.”

“As to us, we shall continue working to update the Cuban economic model with the purpose of improving our socialism and moving ahead toward development and the consolidation of the achievements of a Revolution that has set to itself the goal of ‘conquering all justice.’”

“Venezuela is not, and it cannot be, a threat to the national security of a superpower like the United States. We consider it a positive development that the U.S. President has admitted it.”

A major section of the Castro speech covered Cuba’s continued advocacy for the ideals of the Revolution, for true international governance of the Internet, for changes in hemispheric relations and cooperation against cyber warfare, climate change, terrorism, drug-trafficking organized crime and inequality and for eradication of poverty, illiteracy and hunger. He also commended the efforts in these areas of CELAC [Community of Latin American and Caribbean States], UNASUR [Union of South American Nations], CARICOM [Caribbean Community], MERCOSUR [Southern Common Market], ALBA-TCP [Bolivarian Alliance of the Peoples of Our America—Peoples’ Trade Treaty], SICA [System for Integration of Central America] and ACS [Association of Caribbean States].

Castro concluded with these words: “Cuba, a small country deprived of natural resources, that has performed in an extremely hostile atmosphere, has managed to attain the full participation of its citizens in the nation’s political and social life; with universal and free healthcare and education services; a social security system ensuring that no one is left helpless; significant progress in the creation of equal opportunities and in the struggle against all sorts of discrimination; the full exercise of the rights of children and women; access to sports and culture; and, the right to life and to public safety.”

“Thanks to Fidel and the heroic Cuban people, we have come to this Summit to honor Martí’s commitment, after conquering freedom with our own hands ‘proud of Our America, to serve it and to honor it […] with the determination and the capacity to contribute to see it loved for its merits and respected for its sacrifices.’”

Conclusion.

It would be easy to criticize this speech as an unnecessary historical review going back to the late 19th century and as an unproductive way to advance the cause of Cuba-U.S. reconciliation in 2015.

On the other hand, I see the speech as a necessary recital to the U.S., other countries in the hemisphere and the world of the reasons for Cuba’s historical and current suspicions of U.S. motives and actions and for Cuba’s wariness in engaging in the current negotiations for restoration of normal relations with the U.S. Nevertheless, this history is not preventing Cuba ifrom engaging in those negotiations, and by its actions Cuba is demonstrating that such reconciliation is in Cuba’s national interest.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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.

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[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 . . . .”