How the U.S. can clear Guantanamo’s name

by Cesar Chelala

TUCUMAN, Argentina — The U.S. Senate decision allowing terror suspects held at the U.S. Navy’s Guantanamo Bay facility to be brought to the United States for trial is a significant development toward resolving the human rights issue surrounding their detention.

If this facility is finally closed, the next logical step is to return Guantanamo to its rightful owners, the Cuban people. More than almost any other, this measure would assuage the climate of antagonism that now exists between the U.S. and Latin American countries.

Guantanamo has a convoluted history. Initially, the U.S. government obtained a 99-year lease on the 120-square-km area in 1903. The resulting Cuban-American Treaty established, among other things, U.S. jurisdiction and control of the area for the purpose of operating naval and coaling stations at Guantanamo. It was also recognized that the Republic of Cuba retained ultimate sovereignty of the area.

In 1934, a new treaty reaffirmed most of the lease conditions, increased the lease payment to the equivalent of $3,085 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, the Castro government cashed the first lease-payment check but left subsequent ones uncashed. Since these checks were made out to the “Treasurer General of the Republic,” a position that ceased to exist after the revolution, they are technically invalid.

The U.S. has maintained that the cashing of the first check implied acceptance of the lease conditions. But the fact that, at the time of the new treaty, the U.S. sent a fleet of warships to Cuba to strengthen its negotiating position fuels the counterargument that the lease conditions, imposed on Cuba under duress, would be void if tested under modern international law.

In denying basic U.S. constitutional guarantees to detainees, the U.S. has argued that Cuban sovereignty applies at Guantanamo as it is not under U.S. jurisdiction. If the Cuban government indeed has sovereignty over Guantanamo, then its claims over the area are legally binding and the U.S. is obliged to return Guantanamo to Cuba.

Since 1959, the Cuban government has informed the U.S. government that it wants to terminate the lease on Guantanamo. The U.S. has consistently refused the 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, cites Article 52 of the Vienna Convention on the Law of Treaties: “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 added that the conditions under which the treaty was imposed on the Cuban National Assembly, particularly as a precondition to limited Cuban independence, left Cuba no other choice than to yield to pressure.

A treaty can also be void by virtue of a material breach of its provisions, as indicated in Article 60 of the same Vienna Convention. According to the original terms of the lease agreement, the Guantanamo Bay territory was to be used only for coaling and naval purposes. Its use as a site for interning Haitian and Cuban refugees and, more recently, as a torture center by the U.S. military, counts as a significant breach, thus fully justifying the immediate termination of the lease agreement.

President Jimmy Carter courageously returned the Panama Canal to the Panamanians, setting an important precedent. Carter did what was legally correct and thus lifted U.S. prestige not only among Panamanians but throughout the hemisphere. Similar action by President Barack Obama is needed now.

Returning Guantanamo to the Cubans will enable the U.S. to close one of the most tragic chapters in its legal and moral history. And it will compensate Cubans for the miseries they have had to endure for decades because of Washington’s misguided policies.

Cesar Chelala, M.D., a cowinner of the Overseas Press Club of America award, writes extensively on human rights issues.