Despite the revival of U.S.-Cuba diplomatic ties, there are many outstanding issues preventing the full normalization of relations. One is Cuba’s demand to recover control of Guantanamo Bay, which the United States leased from Cuba in 1903. This article identifies the legal options that exist for the United States in addressing this demand. There are obvious political hurdles, but these may be mitigated by the fact that a transfer of control may not need Congressional approval.
The Lease of Guantanamo Bay
The Platt Amendment paved the way for the Guantanamo Bay lease by obliging Cuba to let the United States have a foothold on the island after independence. The text of the lease is found in two accords: an executive agreement between the U.S. and Cuban presidents in February 1903 that created the lease, defined the territory it covered, and elaborated its main provisions; and a treaty in July 1903 that added further clauses.
The executive agreement gave the United States “complete jurisdiction and control” of Guantanamo Bay while affirming that Cuba had “ultimate sovereignty” there. It also fixed the lease’s duration not in years but as “the time required for the purposes of coaling and naval stations.” A treaty of bilateral relations in 1934 re-confirmed the lease and said that unless the parties agree otherwise, it will remain in effect “[s]o long as the United States of America shall not abandon the said naval station of Guantanamo.”
Thus, while both countries may end the lease by negotiation, the United States may also terminate it unilaterally. Its duration is based on a determination of military necessity that only the United States can make, while the ability to terminate the lease by abandonment is likewise contingent on an act by the United States.
Legal Option 1: The Closure of Military Bases
The Defense Base Closure and Realignment Act of 1990 established a procedure that requires both the executive branch and Congress to approve base closures inside the United States. American bases abroad are exempt from this procedure – their closure may be caused by the host state’s actions or by the expiration of a bilateral agreement. When the United States makes the decision to close an overseas base, U.S. law sets no mandatory criteria, nor does it create a specific process to follow.
Since the closure of a U.S. military base overseas may not be up to the United States, it may occur without approval of, or even discussion by Congress. Nonetheless, a desire by legislators to influence the process led to the inclusion in the 1990 law of a “sense of Congress” resolution, which issued guidelines for closing bases outside the United States. However, “sense of Congress” statements are not legally binding. Thus, the executive branch may ignore the guidelines and close foreign military bases without risk of legal consequences, even if subsequent political or legislative consequences cannot be ruled out.
Legal Option 2: The Form of the Lease
The two 1903 agreements that comprise the lease – the February executive agreement and the July treaty – differ in that an executive agreement does not require Congressional approval, while a treaty needs the consent of two-thirds of the Senate. However, they are legally equivalent in creating U.S. commitments, and the norms of international law that govern agreements between states consider the two forms as identical.
Any bilateral agreement, regardless of its type, may be altered or terminated by another agreement, regardless of its type, between the same parties. Apart from this, the dominant view among U.S. constitutional scholars is that the President has the authority to act without consulting Congress to end agreements that permit unilateral termination by the United States, as the Guantanamo Bay arrangement does.
The executive agreement for Guantanamo Bay is higher in the U.S. legal hierarchy than the treaty because the treaty’s “object and purpose” was to add provisions to the lease that the executive agreement had created. The treaty is dependent on the existence of the executive agreement, and has meaning and effect only so long as the executive agreement is in force. Thus, terminating the executive agreement—which the U.S. president can do without consulting Congress—is sufficient to end the lease. The treaty would continue to exist as an obsolete instrument void of any legal relevance.
Legal Option 3: The Content of the Lease
A bilateral agreement between states may also be terminated in conformity with its provisions. Since the executive agreement specified the duration of the Guantanamo Bay lease as “the time required for the purposes of coaling and naval stations,” the lease legally expires when the “requirement” ceases to exist. Thus, the United States may end the lease through a decision that it no longer “requires” the territory for the stated purposes.
Military necessity is the reason for establishing any U.S. naval facility, and by extension for the territory where it is located to be “required.” Other activities that occur at the base without being site-specific may reflect the territory’s desirability, but fall short of making the territory absolutely necessary—that is, “required.” At Guantanamo Bay, the prison for alleged terrorists has been the primary activity since its creation in 2002. It is operated by a “tenant command,” which is a joint task force whose functions are not directly associated with the site’s military value.
There is no legally mandated process by which the U.S. may decide that Guantanamo Bay is no longer “required,” or when such a determination reaches the point of being considered a decision with the legal effect of triggering the end of the lease, but it is logical for the military structure to be its source. This gives the executive branch considerable leeway to establish how, and by whom, such a decision may be made. Before the prison was created, most military operations at Guantanamo Bay had ceased. In 2005, the U.S. Navy quoted the base’s commander as describing the site prior to the prison as a “minimum-performance arena” with only enough personnel “to keep the base going, to keep the lights on.”
The Helms-Burton Act of 1996 may also be interpreted as confirming that the territory is no longer “required for the purposes of coaling and naval stations.” To promote Cuba’s shift toward democracy, the act made it U.S. policy “to be prepared to enter into negotiations with a democratically elected government in Cuba either to return the United States Naval Base at Guantanamo to Cuba or to renegotiate the present agreement under mutually agreeable terms.” This legally transformed the nature of Guantanamo Bay’s value to the United States from having a military character to being tied to U.S. policy promotion. Indeed, the law signaled that Guantanamo Bay was no longer needed militarily, given that it required the United States to be ready to give up control without regard to any residual military worth – and given that a “democratically elected government” may at times be hostile to the United States.
Legal Option 4: Abandoning the Territory
For Guantanamo Bay to revert to Cuban control, it is not essential for the United States to formally close the base. A base that remains legally or administratively open may be physically abandoned, and the 1934 bilateral relations treaty allows for the United States to terminate the lease by taking actions that constitute “abandonment.” Evacuating military personnel with the intent that it be a permanent situation, particularly when combined with halting maintenance of the site’s facilities, or an official statement to acknowledge the abandonment, may be deemed legally sufficient.
Like the other options above, a decision to withdraw troops from a military base is one that the executive branch has the authority to make without consulting Congress. There are also no legal mandates that stipulate how a base may be abandoned or at what level within the executive branch the decision may be made. This reflects the reality of the military’s combat function, as a base may be abandoned due to the dynamics of a conflict, and the decision may rest with the military officers in charge.
Implications for the Prison and Detainees
U.S. President Barack Obama issued an executive order in 2009 to close the prison for alleged terrorists, but to date Congress has prevented its implementation. This raises several questions: whether a transfer of control of Guantanamo Bay may occur while the prison is still operational – and, if so, what would happen to the prison and the detainees.
The history of territorial leases shows that when a host state recovers control of territory from a tenant state, it resumes the exercise of its sovereign authority– including legal jurisdiction—over everything and everyone that is physically there. The parties to a territorial lease sometimes negotiate agreements that address practical matters arising from the handover, and these may deal with the legal treatment of persons within the territory, including those in prison. This occurred, for instance, when China recovered control of Hong Kong at the expiration of the United Kingdom’s lease in 1997.
Political and legal considerations would inevitably arise if Cuba were to assume jurisdiction over any remaining prisoners upon recovering control of Guantanamo Bay. One scenario is that Cuba would consider this an acceptable “price” for achieving its long-standing objective of getting control of the territory back.
Cuba is often criticized for its human rights record, not least by the United States, so it is relevant to ask how a transfer of prisoners to Cuban jurisdiction might affect their situation. Here, one can turn to the U.S. Department of State’s annual human rights report on Cuba for an indication. It notes that Cuban domestic laws require that prisoners be advised of the charges against them and given access to legal counsel within a week of being detained, and criticizes Cuba for failing to meet this deadline and keeping detainees waiting for “weeks and sometimes months.” Yet this delay is extremely brief relative to the years that most prisoners at Guantanamo Bay have awaited U.S. charges against them, and their access to legal counsel under U.S. jurisdiction has been problematic. In light of such factors, it is not out of the question that their situation under Cuban jurisdiction might improve.
The United States has, over time, reduced the prison population by negotiating the transfer of detainees at Guantanamo Bay to other countries. It has also criticized the human rights situations in some of the receiving nations, such as Saudi Arabia. Thus, one may thus conclude that U.S. perceptions of human rights problems do not disqualify a state from receiving prisoners, which leaves open the possibility that the United States could end its involvement with the Guantanamo Bay prison not by closing it, but by shifting control of the territory to Cuba.
Implications for Cuba of Assuming Control
Assuming control of Guantanamo Bay would have an enormous impact on the economic development of eastern Cuba, and a significant economic impact on the country more generally. The existing deep-water port there would become available for use in Cuba’s trade, with the strong advantage of being closer than Cuba’s other main ports to the Panama Canal. Ports spur economic development in the areas surrounding them and along the transportation corridors to which they are linked. In addition, the infrastructure that the United States has developed at Guantanamo Bay, such as an airstrip capable of handling commercial flights, may contribute to the overall economic and social development of the area. The potential for increased economic activity and job growth could generate population flows toward eastern Cuba and justify enhancing transportation and communications links between the main population centers and the eastern part of the island.
At present, there is no indication that a transfer of control of Guantanamo Bay is anticipated by Cuba. Still, political opportunities can emerge at any time that would affect the likelihood of the United States considering this scenario. Preparing for this contingency would shorten the time necessary for Cuba to realize the resulting gains.
FEATURED IMAGE: View of Guantanamo Naval Base’s entrance gate, by Julie Schwietert Collazo (2006).