US occupation of Guantanamo Bay is illegal, says top lawyer

Spring 2004

By Dean Weston

Despite numerous calls for the return of Guantanamo Bay, the United States still has a Naval base on Cuban soil. At the start of George Bush Senior’s administration the man in charge of the base, US Secretary of the Navy, James H. Webb, wrote an article for the Wall Street Journal in which he said:

“It is reasonable to assume that we will lose our lease on Guantanamo Bay in 1999.”

Yet as we come to the end of Bush juniors first term in charge there appears to be no end to the occupation, how is this possible and is it legal?

In November 2003, international law expert Professor Alfred de Zayas, from the University of British Colombia, gave a lecture on the state of the detainees held at Guantanamo Bay. He began this lecture by detailing the position of the US base in international law, and found that there are four main ways in which the lease and the treaty that created it can only be described as illegal.

1) The treaty was imposed by force

The 1903 Treaty that brought about the base at Guantanamo was invalid from the beginning, as it was imposed by force. After four years of military rule the United States decided against a complete annexation of Cuba, instead they wanted a system that would allow political and economic control, the answer was to grant Cuban independence under US terms.

The US administration made it clear that there would be no Cuban constitution unless it included an appendix, known as the “Platt amendment” which demanded the right for US military intervention in Cuba and a naval base. Initially rejected in Cuba, the Platt amendment had also been unpopular in the US Senate, described by one Senator as an “ultimatum to Cuba”, the Cuban government had no other choice but to yield to US pressure and agree to the lease if they wished to have any form of independence.

The Treaty was signed, supposedly granting Cuban independence, but merely transforming Cuba into a quasi-protectorate. Articles 51 and 52 of the Vienna Convention on the Law of Treaties say that any treaty signed under coercion is illegal, it could be argued that the Vienna Convention only came into force in 1980, yet international opinion was way ahead of this.

In 1947, Serge Krylov, a judge at the International Court of Justice said that any treaties “by which an imperialist power imposes its will upon a weaker state” are invalid.

2) The treaty was binding in 1903, but is illegal in the post-colonial age

After the Second World War the decolonisation process began and a new set of norms and principles based around the UN Charter meant that obsolete, unequal, colonial laws were being replaced.

In the 1970s, the Panamanian Ambassador to the UN argued against the Panama Canal Treaty, which had created a lease that granted the US sovereignty over the Canal for an unlimited time. They were widely supported, the Peruvian Ambassador said it was “not in the spirit of the age” and the Canadians said it was “part of the old order”.

During the relevant discussions at the UN the Friendly Relations Resolution of 1970 was used as constituting customary international law. In the case of the Panama Canal, the treaty had become obsolete, due to the creation of a new international order, encapsulated in the norms and principles of the UN.

Yet despite many calls from Cuba at the UN for the return of Guantanamo (the latest being June 2002) there has not even been any discussion, hardly in keeping with the UN Charter and its obligation to negotiate disputes.

3) The terms of the lease have been broken

The US administration should certainly be trying to negotiate the terms of the lease, as they have continually broke the terms set down in it. The 1903 Treaty permits a “base for naval and coaling purposes” and goes on to say that any commercial use would be illegal.

But it is well known that Guantanamo Bay now contains several commercial concessions, including a bowling alley and of course a certain well known fast food chain.

Other uses have included an internment camp for Haitian refugees in the early nineties, logistical base for the regime changing invasions of Grenada and Panama, numerous acts of provocation against Cuba as well as its present disgraceful use, all of which brake the terms of the lease.

4) The treaty breaks the rules of sovereignty

It is now absurd to think that any bilateral or multilateral Treaty can be lawful if it is based on anything other than the sovereign equality of the contracting parties. Yet in this case, countless US administrations have suggested that a disputed lease is more powerful than the sovereignty of one of its neighbours.

Article 56 of the Vienna Convention appears to provide an answer to this, as it allows for denunciation or withdrawal from a treaty containing no provision on an ending. Targeted at this kind of treaty or alliance, which may and often do lapse after a change of government.

To make it even simpler there is Article 62, that allows for termination on the grounds of fundamental change of circumstances. Once again Cuba is facing special treatment, it is quite unrealistic to say that a lease has no end, no other international lease has lasted for over 99 years, yet this one has lasted for over a hundred without an end in sight, despite the illegality of the situation.

The continued occupation of Guantanamo Bay is a rather unsubtle reminder of nineteenth century colonialism, completely at odds with the principles of the United Nations Charter, which highlights the right to self-determination and the right to dispose of a peoples natural resources.

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