Is the U.S. Naval Base at Guantanamo Bay, Cuba, U.S Sovereign Territory, and, If so, What Difference Does it Make?

Center for International Policy Conference at
Carnegie Endowment for International Peace
Washington, D.C.
March 5, 2003

Remarks of Robert L. Muse

Summary

If the naval base at Guantanamo Bay is U.S. sovereign territory, then the Constitution applies at that facility-including its guarantee of habeas corpus protection for the foreign nationals imprisoned there.

Post September 11th court cases have so far held that Guantanamo Bay is not sovereign territory of the United States. However, these cases are inadequately reasoned to serve as a definitive answer to the question of the legal status of the U.S. naval base at Guantanamo Bay. In particular, the courts have so far failed to consult public international law to resolve the question. This is a remarkable oversight because it is that body of jurisprudence alone that is capable of supplying answers to questions concerning sovereignty over a particular territory.

What Country Exercises Sovereignty Over the U.S. Base at Guantanamo Bay?

I will offer several observations concerning what public international law may have to say about the true legal status of the U.S. base at Guantanamo Bay. Specifically, I will offer the opinion that over time the U.S. has come to exercise a condominium sovereignty with respect to the territory that constitutes that base. That is, the U.S. shares sovereignty with Cuba over the Guantanamo Bay facility. This is the case because the U.S. asserts exclusive and perpetual control there. However, Cuba retains a residual or "ultimate" sovereignty over what is indisputably land situated within its historical national territory. Accordingly, there is a shared or condominium sovereignty exercised by the U.S. and Cuba over the naval base at Guantanamo.

A Short History of U.S. Occupation of Guantanamo Bay

The area that was to become the U.S. naval base at Guantanamo was first occupied during the Spanish-American War as a campsite for U.S. Marines. Once ashore, the U.S. has never left the area in 105 years.

From its initial beachhead at Guantanamo Bay U.S. forces, in 1898, attacked Spanish troops in eastern Cuba. Following the surrender of the Spanish at Santiago in July of 1898 the U.S. launched the invasion of Puerto Rico from Guantanamo Bay.

As only one item in the price extracted for its freedom from the U.S. proconsulship that followed Cuba's successful revolt from Spain, Cuba, in an appendix to its Constitution of 1901, was required to agree to sell or lease to the U.S. "lands necessary for coaling or naval stations." In 1903 Cuba formally "leased" Guantanamo Bay to the United States for use as a naval station. (I will discuss the terms of that lease later).

The land eventually occupied by the U.S. under the 1903 Agreement amounts to about 45 square miles or 19,600 acres-an area the size of Manhattan.

Beginning in 1908 major construction was undertaken by the U.S. at Guantanamo Bay. Over time the base came to serve as the winter training grounds of the U.S. Atlantic fleet. It also served as the point of deployment for U.S. troops that intervened to "preserve order" in Cuba under the terms of the Platt Amendment. Such interventions occurred, for example in 1912 and 1917 for the purpose of "protect[ing] U.S. nationals and their property."

After World War I activity at the base slowed. In 1930 a short story was published in the U.S. titled "Guantanamo Blues" by a "navy wife." The story was widely read in this country, and depicted a bored and frustrated American outpost where sex and drinking were the chief diversions.

Interestingly, in 1930 the Base Commander enforced the lease agreement's prohibition on commercial establishments and expelled a Cuban rancher who was providing beef to the naval station. (As we shall see, after the Cuban Revolution, all pretense of observing the terms of the lease disappeared from the U.S. side and U.S. fast food franchises freely operate at Guantanamo Bay today).

In 1933 the infamous "Machado" regime fell and (as I will discuss later) the Administration of Franklin Roosevelt terminated the Platt Amendment and with it the original 1903 Treaty of Relations between the U.S. and Cuba. However, the provisions of that treaty as they related to the lease of Guantanamo Bay continued, by a mutual agreement of 1934, to apply.

In 1938 the last coal-most of it left over from the Spanish American War that ended forty years before-was removed from the base and the Navy closed it as a "coaling station."

In anticipation of war, starting in 1940, there began what has been described as the "great expansion" of the naval base at Guantanamo Bay. The end of World War II saw little diminishment of base activity. In the 1950s the population of the base, both military and civilian, numbered about 10,000.

The base continued to expand its housing, schools and other facilities after diplomatic relations between Cuba and the U.S. were severed in 1961. In fact, the U.S. government announced: "The termination of our diplomatic and consular relations with Cuba has no effect on the status of our naval station at Guantanamo. The treaty rights under which we maintain the naval station may not be abrogated without the consent of the United States."

The 1980s were of course the period of the Reagan Administration's periodic and often proxy confrontations with the Soviet Union in places like Nicaragua. In that period the Caribbean Commander of the U.S. Navy said, "If we pulled out [of Guantanamo Bay] I think the Soviet Navy would be in there so fast that your eyes couldn't blink."

The 1990s saw the beginning of truly systematic violations of the lease Agreement when Guantanamo was used by President Clinton as a detention facility for 11,000 Haitian refugees and 30,000 Cubans intercepted at sea trying to reach the United States. In 1999 President Clinton even proposed housing refugees from Kosovo at Guantanamo, although in the end it did not happen.

The year 2002 saw the arrival at Guantanamo of several hundred individuals alleged to be members of Al-Qaida or the Taliban.

The Agreements Pertaining to Guantanamo Bay

February 23, 1903 Agreement:

This Agreement is styled "for the lease (subject to terms to be agreed upon by the two governments) to the United States of lands in Cuba for coaling and naval stations."

The February 23 Agreement cites Article VII of the Appendix to the Cuban Constitution which says: "To enable the United States to maintain the independence of Cuba, and to protect the people thereof, a well as for its own defense, the Cuban Government will sell or lease to the United States the lands necessary for coaling or naval stations., at certain specified points, to be agreed upon with the President of the United States."

The Agreement goes on to say, "Having reached an agreement to that end, as follows":

Article I states: "The Republic of Cuba hereby leases to the United States, for the time required for the purposes of coaling and naval stations…[Guantanamo]."

Article II says that the U.S. has "the right…to do any and all things necessary to fit the premises for use as coaling or naval stations only, and for no other purpose."

Finally. Article III provides: "While on the one hand the United states 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 United states of said areas under the terms of this agreement the United states shall exercise complete jurisdiction and control over and within said areas with the right to acquire (under conditions to be hereafter agreed upon by the two Governments)."

October 6, 1903 Agreement (i.e. the Supplementary Agreement):

This Agreement begins with the preamble that "the U.S. and Cuba, being desirous to conclude the conditions of the lease of areas of land and waters for the establishment of naval or coaling stations in Guantanamo…have agreed to the following Articles:"

Article I: "The U.S. agrees to pay Cuba the annual sum of $2,000…as long as the former shall occupy and use [Guantanamo] by virtue of said Agreement."

Article III provides that "The U.S. agrees that no person, partnership, or corporation shall be permitted to establish or maintain a commercial, industrial or other enterprise within said areas."

Agreement of June 9, 1934:

This Agreement terminated the Treaty of Relations of 1903. However, Article III provides: "Until the two contracting parties agree to the modifications or abrogation of the stipulations of the agreement in regard to the lease to the United States of America of lands in Cuba for coaling and naval stations signed by the President of the Republic of Cuba on February 16, 1903…the stipulations of that agreement with regard to the naval stations of Guantanamo shall continue in effect. The supplementary agreement in regard to naval or coaling stations 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 Guantanamo. So long as the United States of America shall not abandon the said naval station of Guantanamo or the two Governments shall not agree to a modification of its present limits, the station shall continue to have territorial area that it now has, with the limits that it has on the date of the signature of the present Treaty."

U.S. Attitudes Toward the Base

In 1953 the Commander of the naval base, Rear Admiral Murphy, wrote "Guantanamo is in effect a bit of American territory…for we have a lease in perpetuity to this Naval Reservation and it is inconceivable that we would abandon it."

Rear Admiral Murphy went on to say, "Over the leased areas of land and water, comprising the Naval reservation, Cuba consented that during the period of occupation, the United States would exercise "complete jurisdiction and control over and within said areas." On the other hand, the United States recognized "the continuance of the ultimate sovereignty of Cuba over and above the leased areas". "Ultimate," meaning final or eventual, is a key word here. It is interpreted that Cuban sovereignty is interrupted during the period of our occupancy, since we exercise complete jurisdiction and control, but in case occupation were terminated, the area would revert to the ultimate sovereignty of Cuba…it is clear that at Guantanamo Bay we have a Naval reservation which, for all practical purposes, is American territory. Under the foregoing agreements, the United States has for approximately fifty years exercised the essential elements of sovereignty over this territory, without actually owning it. Unless we abandon the area or agree to a modification of the terms of our occupancy, we can continue in the present status as long as we like. Persons on the reservation are amenable only to United States legislative enactments. There are a few restrictions on our freedom of action, but they present no serious problem."

In 1981 a former Base Commander described Guantanamo Bay as "…any other base or American city…except that it happens to be a 45-mile square chunk of real estate at the southeastern tip of a Communist country."

As we have seen, the U.S. treats Guantanamo just as if it owns it. In particular, the U.S. has believed for the past 10 years or so that it is free to put Guantanamo Bay to whatever purpose it chooses, regardless of whether that use is prohibited under the terms of the lease Agreement that allow no other uses of the area than "as [a] coaling or naval station only, and for no other purpose."

Cuban Attitudes Toward the Base

Much is made of the fact that the original lease of 1903 was made pursuant to the coercive Platt Amendment. Less is said about the fact that during the period of Franklin Roosevelt's "Good Neighbor Policy," Cuba, in 1934, consented to the perpetuation of the lease under conditions where its freedom of choice was not in doubt.

Cuban President Fidel Castro not long after the triumph of his Revolution said, "The naval base is a dagger plunged into the Cuban soil…a base we are not going to take away by force, but a piece of land we will never give up."

In January 1974, Cuba's Ambassador to Mexico said that Fidel Castro began his 15th year of power with a willingness to begin talks about normalizing relations if Washington would lift its blockade-he also said that the Guantanamo Naval Base was no longer an obstacle to resuming relations.

On February 24, 1976, Cuban voters approved Article 10 of the Cuban Constitution (Article 12 of the modified 1992 Constitution), which states: "The Republic of Cuba repudiates and considers illegal and null the treaties, pacts or concessions agreed upon in unequal terms that ignore or diminish its sovereignty over any possession of the national territory."

In 1977 Castro said "when one mentions an undetermined length of time in a legal contract, it's understood that it means 100 years…if the North Americans want to be there, very well. They will have to leave someday, the day they start thinking intelligently."

The most interesting statement of recent years from Cuba is the one issued on January 11, 2002, as Taliban and other prisoners were arriving at Guantanamo Bay from Afghanistan. In that statement the 1903 Lease Agreement for Guantanamo is described as "abusive" and something imposed on Cuba at a time when "our country was not really independent." The statement goes on to say "the base has been put to multiple uses, none of them contemplated in the Agreement."

So how did Cuba react to the new use of the base as a prison? The statement of January 11 says "A basic principle of Cuba's policy toward this [problem between the U.S. and Cuba], which is decades long, has been to avoid that our claim would become a major issue, not even a specially important issue, among the multiple and grave differences existing between the two nations…Although we have always been willing to fight and die in defense of our sovereignty and our rights, the most sacred duty of our people and their leaders has been to preserve the nation from avoidable, unnecessary and bloody wars…Our country has been particularly thoughtful about applying there a specially cautious and equable policy."

Oddly enough, the statement goes on to say there "have been changes in the past few years and now an atmosphere of mutual respect prevails." What is so odd about this remark is that the period described began in 1994 "when a large number of rafters sent by the U.S. authorities concentrated there." The statement ends by saying "Although the transfer of foreign war prisoners by the United States government to one of its military facilities-located in a portion of our land over which we have no jurisdiction, as we have been deprived of it-does not abide by the provisions that regulated its inception, we shall not 'set any obstacles' to the development of the operation…we are willing to cooperate in any other useful, constructive and humane way that may arise."

Recent Court Cases Involving the Status of Guantanamo Bay

Coalition of Clergy v. Bush (San Diego Fed. Dist. Ct.
(February 21, 2002))

This was an early case brought on behalf of the prisoners held at Guantanamo Bay. The relief sought was habeas corpus. Such relief is effectuated by the issuance of a court writ that requires the authorities responsible for an individual's detention to demonstrate that that person is being detained lawfully. Habeas corpus is the most important writ known to the Constitutional law of England and was incorporated in to the U.S. Constitution at Article I, Section 9.

The court in San Diego denied the request for a writ of habeas corpus on the ground that "no federal court had jurisdiction" over the detainees at Guantanamo Bay. The court reached this conclusion by framing the question this way: "Does the U.S. have "sovereignty" over Guantanamo Bay?" Or, put slightly differently at another part of the Opinion, the Court asked: Were the "detainees seized and at all times held outside the sovereign territory of the United States?"

The court answered the question by distinguishing between "territorial jurisdiction" and "sovereignty," and found the latter term controlling in deciding the issue. The court then referred to Article III of the 1903 lease agreement which said:

"While on the one hand the United States 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 occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas."

It then held that the U.S. had "defined the legal status of Guantanamo Bay" and the court had no authority to "ignore their determination." The court quoted a Supreme Court Opinion to the effect that "the determination of sovereignty over an area is for the legislative and executive departments." In its final mopping up the court cited several cases holding that Guantanamo Bay "is not within the sovereign territory of the United States and is not the functional equivalent of U.S. sovereign territory."

On appeal the Ninth Circuit wisely vacated the district Court's "far-reaching ruling that there is no U.S. court that may entertain any of the habeas claims of any of the detainees." Instead the Court of Appeals upheld the lower Court's decision that the case should be dismissed because the coalition that filed the suit lacked "standing" to assert the claims of the detainees.

The other case to consider habeas corpus relief is Rasul v. Bush, which was brought in Washington, D.C. and decided in July, 2002. Again the inquiry was described as follows: "whether aliens outside the sovereign territory of the U.S. can use the Courts of the United States to pursue claims brought under the U.S. Constitution." Having framed its inquiry in those terms, the court answered in the negative by holding that "no court would have jurisdiction to hear these actions."

Rasul was brought by the parents of two citizens of the U.K. and one Australian being held at Camp X-ray, Guantanamo, and over time came to include twelve Kuwaitis whose relatives claimed they were in Afghanistan and Pakistan to provide charitable aid. They claimed to be seized by villagers seeking bounties from the U.S.

The court denied relief on the basis of the Supreme Court's Eisentrager case which held that an alien outside this country's "sovereign territory" is not permitted access to the courts of the United States to enforce the Constitution.

Given the Rasul Court's conclusion that Eisentrager was controlling the sole task for the Court was to decide whether Guantanamo Bay is part of the sovereign territory of the U.S.

The Court cited the 1903 lease agreement and held that "it is clear from this agreement [that] the U.S. does not have sovereignty over the military base at Guantanamo Bay." The Court then considered whether aliens on a U.S. military base situated in a foreign country are considered to be within the territorial jurisdiction of the U.S. under a de facto theory of sovereignty; although the Court showed little enthusiasm for the inquiry by saying Eisentrager never qualified its definition of sovereignty in such a manner.

However, things soon got interesting. The Court reviewed a case (Ralpho v. Bell, 569 F.2d 607 (D.C. Cir. 1977)) that held an alien resident in Micronesia was entitled to Constitutional protection. The Court said that Ralpho stood for the proposition that aliens residing in the "sovereign territories of the U.S. are entitled to certain basic Constitutional rights." The problem, though, is that the UN trusteeship given the U.S. over Micronesia did not provide for sovereignty over that territory. Instead it gave the U.S. "full powers of administration, legislation and jurisdiction over the territory subject to the provisions of the trust agreement." The Court then escaped its predicament by saying (1) the military base at Guantanamo Bay is nothing "remotely akin to the territory of the U.S.," rather, the U.S. merely leases an area of land as a military base, and (2) that several cases have said the base at Guantanamo is not within the territorial jurisdiction of the U.S.

Nevertheless the Court was clearly rattled. At the conclusion of its Opinion the Court returns to Ralpho to say that it was a case that "involves land so similar to United States territory" that Constitutional protections were extended to aliens present there.

So, is Guantanamo Bay itself so "similar to United States territory" that the Constitution should apply there? I believe the answer is not only yes, but that the base has actually become subject to the condominium sovereignty of both the U.S. and Cuba.

International Law

Sovereignty may as a matter of both definition and description be said to be, "¼supreme legitimate authority within a territory." Or as Hans J. Morgenthau has said, "Sovereignty is the supreme legal authority of the nation to give and enforce the law within a certain territory."

Professor Ian Brownlie captures the essence of the relationship between sovereignty and jurisdiction when he says: "Sovereignty describe[s] the legal competence which states have in general. Thus jurisdiction, including legislative competence over national territory, may be referred to in the terms 'sovereignty' or 'sovereign rights.'"

U.S. jurisprudence is similar: in The Schooner Exchange v. Macfaddon, Chief Justice Marshall stated:

"The jurisdiction of [a] nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction."

In the Island of Palmas Case, the elemental connection between sovereignty and the principle of the independence of nations was given the following expression:

"Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the function of a State. The development of international law, [has] established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it a point of departure in settling most questions that concern international relations."

The U.S. has acted with respect to the naval base at Guantanamo Bay to the "exclusion of any other State" and entirely independent of the wishes of that other State, i.e. Cuba.

Transfers of Sovereignty

There is a presumption in international law that the grantor of a lease retains residual sovereignty. However, a grant in perpetuity by definition cannot be terminated and can amount to an at least temporary cession of territory. In the Eastern Greenland case (1959) the World Court said that sovereignty can be "based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise or display of such authority."

The term "novation" describes in international law the gradual transformation of a right, for example a lease, or a pledge, or certain concessions of a territorial nature, into sovereignty without any formal and unequivocal instrument to that effect. For example, the British claims in respect of Belize were in origin nothing more than the right, guaranteed by Spain to Great Britain on behalf of her nationals by Article 17 of their Peace Treaty of Paris of February 10 1763 "…not to be molested in their trade of cutting Campeachy wood in the Spanish territories bordering the Bay of Honduras."

Conclusion

Condominium is a case of sovereignty which is exercised by two or more states. That is what prevails today at the U.S. base at Guantanamo Bay, Cuba. The U.S. possesses sovereignty over the base as a result of both the perpetual terms of the lease and the exclusive and absolute jurisdiction asserted there over the years. Cuba, however, retains, in the words of the 1903 lease agreement, "ultimate sovereignty." It follows that the remedy of habeas corpus should be available to the foreign nationals imprisoned at Guantanamo Bay.

The chief utility to the U.S. of the base at Guantanamo Bay is that courts have held that the U.S. Constitution does not apply to non-U.S. nationals incarcerated there. If it is determined by the courts of this country that public international law compels a finding that the U.S. does exercise a condominium sovereignty with Cuba over Guantanamo Bay, then the U.S. base there loses its value as a modern day Devil's Island. If that occurs, Cuba just might recover an important segment of its territory after over 100 years of U.S. occupation.

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