One of the many challenges facing President Joe Biden is what to do with regard to Guantánamo. Together with former President Barak Obama, President Biden did much to restore normal relations with Cuba, a course of action that was altered by Donald Trump’s decision to harden the U.S. Government posture with Havana.
In an April16, 2021, letter to the White House, 24 U.S. senators wrote that the U.S. military prison at Guantánamo “has damaged America’s reputation, fueled anti-Muslim bigotry, and weakened the U.S.’ ability to counter terrorism and fight for human rights and the rule of law around the world.” Closing Guantánamo should be followed by returning it to Cuba. This would not only be the right measure, but it would also improve the U.S.’ battered image in the continent.
Guantánamo has a complex history. Beginning in 1903, the U.S. government obtained a 99-year lease on the 45 square mile area under the Cuban-American Treaty. The treaty established, among other things, that for the purposes of operating naval and coaling stations in Guantánamo, the U.S. had “complete jurisdiction and control” of the area. However, it was also recognized that the Republic of Cuba retained ultimate sovereignty.
In 1934, a new treaty reaffirmed most of the lease conditions, increased the lease payment to the equivalent of $3,085 in U.S. dollars per year, and made the lease permanent unless both governments agreed to end it or the U.S. decided to abandon the area.
In the confusion of the early days of the Cuban revolution, Castro’s government cashed the first check but left the remaining checks un-cashed. The U.S. has maintained that the cashing of the first check indicates acceptance of the lease conditions. However, since these checks were made out to the ‘Treasurer General of the Republic’, a position that ceased to exist after the revolution, they are considered technically invalid.
Also, at the time of the new treaty, the U.S. sent a fleet of warships to Cuba to strengthen its position. Thus, an additional argument is that the lease conditions were imposed on Cuba under duress, and are therefore void under modern international law.
The U.S. has used the argument of Cuban sovereignty over Guantánamo when denying basic guarantees of the U.S. Constitution to the detainees at that facility by indicating that U.S. federal jurisdiction doesn’t apply to them. Since the Cuban government has historical sovereignty over Guantánamo, then its claims over the area are legally binding and the U.S. is obligated to return Guantánamo to Cuba.
Since 1959, the Cuban government has informed the U.S. government that it wants to terminate the lease on Guantánamo. However, the U.S. has consistently refused this request on the grounds that it requires agreement by both parties.
Alfred-Maurice de Zayas, an American lawyer and professor of international law at the Geneva School of Diplomacy and International Relations, has noted that article 52 of the Vienna Convention on the Law of Treaties states, “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.”
He also believes that the conditions under which the treaty was imposed on the Cuban National Assembly, particularly as a pre-condition to limited Cuban independence, left Cuba no other choice than to yield to pressure.
A treaty can also be void by virtue of material breach of its provisions, as indicated in article 60 of the Vienna Convention on the Law of Treaties. According to the original terms of the lease agreement, the Guantánamo Bay territory could only be used for coaling and naval purposes.
However, the use of the Guantánamo facility as a torture center by the U.S. military, and as an internment camp for Haitian and Cuban refugees, indicates a significant breach of that agreement, fully justifying its immediate termination.
President Jimmy Carter courageously returned the Panama Canal to the Panamanians, thus setting an important precedent in international relations. President Carter did what was legally right, and lifted U.S. prestige not only among Panamanians but throughout the hemisphere.
It can be argued that the proposal of returning Guantánamo to Cuba is hopelessly naïve. However, this would be balanced by a wave of goodwill and respect towards the U.S. throughout Latin America. In addition, returning Guantánamo to Cuba will allow the U.S. to close one of the most tragic chapters of its legal and moral history, and it will compensate Cubans for the miseries they have had to endure due to the U.S. embargo and the stubbornness of the Cuban leaders.