The legalization of the international sphere—that is, the process of inscribing social processes into the law—has been growing since the end of the last century. It is producing significant transformations in the way in which people and institutions approach issues in relations among states, and international public and private actors, including powerful civil society actors. International legalization is supposed to provide all of the benefits of law within states. It levels asymmetries of power in dispute resolution. It provides certainty both in the substantive rules to be applied and in the process used. It is meant to regularize relations and to reduce conflict by making the scope of rights and obligations clear. And lastly, it is supposed to provide a mechanism that appears both fair and legitimate to all parties. This process of legalization has been most successfully developed in the economic sphere and has been a critical factor in the success of globalization.
But the legalization of international politics has some very real limits as well.Within the political sphere, legalization does not successfully reduce uncertainty and ambiguity in understanding the scope of rights and obligations. Nor does it necessarily limit conflict. The recent rejection by China of the arbitral decision against it in an action by the Philippines related to China’s South China Seas claims is evidence of these limitations. What legalization has done is to substitute the language of law for the language of politics, and to displace notions of interests with that of justice, now transfigured into political justice grounded in emerging international norms. Legalization thus changes language of interpretation and the process for resolution. But it does not avoid either.
It is with this in mind that I approached the discussion in Professor Michael Strauss’ excellent analysis of the legal framework within which to consider the termination of the U.S. lease of the Guantanamo naval base, and of U.S. control of the territory that the base occupies. That essay, Returning Guantanamo Bay to Cuban Control, provides a very useful framework within which to understand the technical and conceptual approaches that will be used to work through the issue in the coming years. A longer version of this analysis may be accessed here.
First, it is important to consider the context in which the issue of the Guantanamo base closure arises—namely, the normalization of relations between Cuba and the United States. Strauss notes that normalization brings together three distinct but related issues: (1) U.S. compensation for expropriation; (2) the end of the U.S. embargo; and (3) the closure of the Guantanamo naval base. All three present both legal and political challenges. And they are unlikely to be resolved in isolation. As one considers Professor Strauss’ analysis of the legal framework for the closure of the base, it is important to remember three important caveats to the analysis. First, one must be careful to avoid speaking about Guantanamo out of context. The possibilities of the base closure cannot be understood without taking into account discussions about expropriation and the embargo. Second, legalization produces a strong pull toward the ideology of law in approaching analysis of the base closing. That is, legalization substitutes the language and processes of law and the lawyer for traditional mechanics of international relations. But one must be cautious about using a legal framework to analyze an issue that, at its core, remains substantially political. Third, the Guantanamo base is deeply embedded in the history of relations between the United States and Cuba and in the construction of Cuba’s understanding about the nature of its sovereignty. The weight of history will hang heavy on both legal and political analysis. More importantly, we must avoid the construction or application of a false historical analogy. Ideology will drive the production and application of such analogy, and that is to be lamented.
Second, the legal context itself is intimately bound up in politics, and in the asymmetrical power relationship between the United States and Cuba. Though the United States considered annexing Cuba throughout the nineteenth century, dependency, rather than acquisition, marked the nature of the U.S.-Cuba relationship in the early twentieth century. In this historical context, Guantanamo might be understood to be the price the U.S. exacted in return for permitting Cuban sovereignty. The naval base served as a physical reminder of continuing U.S. authority despite Cuban independence, as set out in the Platt Amendment to the Cuban Constitution of 1901. As Professor Strauss described, the Guantanamo leasehold itself was the product of a treaty and an executive agreement of 1903, along with a modifying treaty of 1934. The treaty documents effectively gave the United States unilateral authority to determine when or whether the lease would expire; a Cuban judicial decision in the 1930s ensured that U.S. law would apply within the Guantanamo territory and that termination would occur automatically only when the territory was no longer used as a coaling station or naval base. The U.S., then, may act solely in accordance with its sense of its own geo-political interests.
In the face of the legalities around which U.S. authority is framed, the Cuban state since 1959 has sought to contest the validity of the U.S. occupation of Guantanamo. That contestation has not been grounded in legality—such an approach would have surely failed. Instead, the Cuban government has argued for “justice” rather than “law.” Justice, in this context, is understood as fair dealing along the lines of appropriate relations as written in the United Nations Charter and related documents. In this way, Cuba has sought to claim its own power of unilateral repudiation of the treaty. The Cubans have avoided the use of force to retake Guantanamo, and have instead performed a series of symbolic actions to buttress their position.
Professor Strauss’ analysis considers three questions: (1) has the U.S. effectively unilaterally terminated the lease in accordance with its terms; (2) who has the authority and what must occur for the U.S. to terminate the lease on that basis if it chose to do so; and (3) what are the implications for Cuba of a reversion of Guantanamo to Cuban control.
Professor Strauss first considers the issue of the base closure itself. It is clear that closure is mired in domestic law, and in contests for control of the process between Congress (with the power of the purse) and the President (as Commander in Chief and with the power over foreign affairs). Though currently there is no law controlling the closure of foreign bases, there is no reason to believe that Congress would not act swiftly should it determine that the President was set to act unilaterally. And in any case, the power of the President in this respect remains unclear, and thus ripe for litigation. Judicial review would effectively hold up closure for years. And even if Congress lost, it would be free to retaliate in a host of other areas where its power is paramount. For the President, then, the question becomes one of politics—is the value to be gained by closure worth the political cost of the act? For most presidents through the present moment, the answer has always put the cost as far higher than the gain. Still, it is not clear how the current administration would weigh gain and cost.
Professor Strauss then considers three related justifications for the closure of the military base. The first touches on the President’s unilateral authority to close the base. That would require assertion of his authority as Commander in Chief, and his paramount authority to direct the foreign relations of the United States. But the question of unilateral authority is a legal one, and not free from doubt. Even if the President has the unilateral authority to negotiate a modification to the executive agreements and treaties that could effectively terminate the leasehold, such modification might also require Senate ratification, or Congressional authorization or at least acquiescence. In any case, courts have been increasingly skeptical of Presidential unilateral powers in recent years, with the possible exception of the power over foreign affairs. But the base closure might present a case of mixed authority that complicates the analysis. In any case, the litigation that would surely arise would take a long time to resolve, effectively ending the political option for closure. Moreover, the increasing presence of Russia and China in Cuba, the complexities of migration issues in the Caribbean, and the shifting patterns of terrorist and criminal organizations may change the military calculus in favor of augmenting the naval presence in Cuba, thus affecting the political question.
The second and third arguments for closure touch on variations of the idea that the base has been effectively abandoned. Professor Strauss introduces the argument that the base is no longer used for its original military purpose—it serves more as a prison than a naval base, and no one uses bases for coaling anymore. Moreover, lease termination can occur automatically merely by moving naval forces out, effectively triggering default abandonment provisions of the 1934 Treaty. It is possible for the executive branch to declare that the purposes of Guantanamo have been abandoned. But as mentioned above, that may be less likely given contemporary geo-politics in the region—and the exigencies of domestic politics in the United States. Merely abandoning the facilities might be possible given language in the Helms-Burton Act and in an old appellate court case suggesting unilateral authority of the president to do so. But that case may no longer be controlling, and Helms-Burton appears increasingly irrelevant, if expedient.
Lastly, what of the benefits of returning Guantanamo to the Cuban state? Professor Strauss notes the value for Cuba of inheriting a working port, and the possibility that this would encourage population movement toward the eastern end of the Island. But there may be substantial impediments as well. First, the development of deep-water ports in Cienfuegos and Santiago de Cuba may make Guantanamo irrelevant. Second, the loss of the symbolic value of the U.S. presence may have negative political effects on the internal politics of Cuba. Third, such abandonment might impede the nature, now likely to grow, of military cooperation among Cuban and American naval forces in important areas such as migration control, narco-trafficking, and antiterrorism activity. Fourth, Cuba may not have the resources necessary to convert the naval station for commercial activity. That may require help from China or Russia—and the prospect of such aid may itself contribute to a U.S. decision to hold on to the base. Lastly, given the migration crisis in the Caribbean, if there is a population movement into eastern Cuba as a result of the closure, it is as likely to come from other Caribbean states—Haiti in particular, than from western Cuba. That would produce another and perhaps more tragic crisis, since such a potentially large migration might well destabilize the Cuban political and economic regime far more successfully than any of the efforts of the United States since the 1960s.
So, to return to the key questions posed by Professor Michael Strauss: (1) it is not clear that the U.S. has unilaterally terminated the lease in accordance with its own terms; (2) it is less clear that the President has the unilateral authority to close the base and return the Guantanamo territory to Cuba; and (3) the implications for Cuba of a reversion are not necessarily positive. Politics, rather than law, will ultimately decide the time and manner of the reversion of Guantanamo to Cuban control.
FEATURED IMAGE by Julie Schwietert Collazo.