Saturday, January 14, 2012


Keeping this blog up to date has been somewhat challenging during the past several weeks, as I have been trying to overcome some complications of a kidney stone that showed up like the man who came to dinner and refused to leave. The stone is out, but  the after-effects continue.

As controversy continues to swirl around the use of the US Naval Base at Guantanamo Bay Cuba as a place of interment for people the United States Government deems too dangerous to bring into the states for trial, and for other various justifications illustrating the ill-defined plans on how to cope with perceived enemies, I thought it might be useful to review the underlying treaty that gives the US permission to occupy the approximately 40 square miles of the eastern tip of Cuba. The treaty was executed after the US had joined in the Cuban Revolution against Spain, after the revolution was all but finished. Theodore Roosevelt rode in at the tail-end and under the provisions of the Platt amendment, established Cuba as a vassal state of the US. Ironic, that the war against Spain that was the Cuban revolution, is known in US schoolbooks as the Spanish American War.
I had always assumed that there was a 99-year lease in place between the US and Cuba. After all, in school we learned about the British having leased Hong Kong from China for 99 years. At common law, and in most states in the United States, 99 years is the longest term for a land lease. Any lease that purports to be for a longer term is void in those jurisdictions imposing that limitation. However, the terms of the Cuban lease are much different from the agreement that gave Great Britain control of Hong Kong, or the 99-year lease of the Panama Canal. Below is the full text of the treaty of 1903:

Signed at Habana, July 2, 1903; 
Approved by the President, October 2, 1903; 
Ratified by the President of Cuba, August 17,1903; 
Ratifications exchanged at Washington, October 6,1903
The United States of America and the Republic of Cuba, being desirous to conclude the conditions of the lease of areas of land and water for the establishment of naval or coaling stations in Guantanamo and Bahia Honda the Republic of Cuba made to the United States by the Agreement of February 16/23,1903, in fulfillment of the provisions of Article Seven of the Constitutional Appendix of the Republic of Cuba, have appointed their Plenipotentiaries to that end.-
The President of the United States of America, Herbert G. Squiers, Envoy Extraordinary and Minister Plenipotentiary in Havana.
And the President of the Republic of Cuba, Jose M. Garcia Montes, Secretary of Finance, and acting Secretary of State and Justice, who, after communicating to each other their respective full powers, found to be in due form, have agreed upon the following Articles;-
The United States of America agrees and covenants to pay to the Republic of Cuba the annual sum of two thousand dollars, in gold coin of the United States, as long as the former shall occupy and use said areas of land by virtue of said agreement.
All private lands and other real property within said areas shall be acquired forthwith by the Republic of Cuba.
The United States of America agrees to furnish to the Republic of Cuba the sums necessary for the purchase of said private lands and properties and such sums shall be accepted by the Republic of Cuba as advance payment on account of rental due by virtue of said Agreement.
The said areas shall be surveyed and their boundaries distinctly marked by permanent fences or inclosures.
The expenses of construction and maintenance of such fences or inclosures shall be borne by the United States.
The United States of America agrees that no person, partnership, or corporation shall be permitted to establish or maintain a commercial, industrial or other enterprise within said areas.
Fugitives from justice charged with crimes or misdemeanors amenable to Cuban Law, taking refuge within said areas, shall be delivered up by the United States authorities on demand by duly authorized Cuban authorities.
On the other hand the Republic of Cuba agrees that fugitives from justice charged with crimes or misdemeanors amenable to United States law, committed within said areas, taking refuge in Cuban territory, shall on demand, be delivered up to duly authorized United States authorities.
Materials of all kinds, merchandise, stores and munitions of war imported into said areas for exclusive use and consumption therein, shall not be subject to payment of customs duties nor any other fees or charges and the vessels which may carry same shall not be subject to payment of port, tonnage, anchorage or other fees, except in case said vessels shall be discharged without the limits of said areas; and said vessels shall not be discharged without the limits of said areas otherwise than through a regular port of entry of the Republic of Cuba when both cargo and vessel shall be subject to all Cuban Customs laws and regulations and payment of corresponding duties and fees.
It is further agreed that such materials, merchandise, stores and munitions of war shall not be transported from said areas into Cuban territory.
Except as provided in the preceding Article, vessels entering into or departing from the Bays of Guantanamo and Bahia Honda within the limits of Cuban territory shall be subject exclusively to Cuban laws and authorities and orders emanating from the latter in all that respects port police, Customs or Health, and authorities of the United States shall place no obstacle in the way of entrance and departure of said vessels except in case of a state of war.
This lease shall be ratified and the ratifications shall be exchanged in the City of Washington within seven months from this date.
In witness whereof, We, the respective Plenipotentiaries, have signed this lease and hereunto affixed our Seals.
Done at Havana, in duplicate in English and Spanish this second day of July nineteen hundred and three.
I, Theodore Roosevelt, President of the United States of America, having seen and considered the foregoing lease, do hereby approve the same, by virtue of the authority conferred by the seventh of the provisions defining the relations which are to exist between the United States and Cuba, contained in the Act of Congress approved March 2, 1901, entitled "An Act making appropriation for the support of the Army for the fiscal year ending June 30,1902."
Washington, October 2, 1903.

The treaty is perpetual and has no limitation as to its term. So long as the United States pays its $2,000 in gold coin each year, it appears that the lease remains perpetual. Interestingly, the treaty provides in in Article III that there shall not be any commercial enterprises located at Guantanamo. Today, there is a Subway, McDonalds, A&W and KFC located on the base, but all are owned by the US Navy. I do not know if there are any other businesses operating there. Perhaps some of my readers might know and may comment. At least one account I have read suggests that the treaty is being violated by the operation of business enterprises, but I have not read any description of what those businesses might consist of. While I doubt Theodore Roosevelt ever contemplated fast-food operations in lieu of a Navy mess, it does not seem inconsistent with the operation of a naval base.
In a world of modern aircraft carriers powered by nuclear reactors and aircraft that travel the distance between Cuba and the US in less than a minute, I wonder what its strategic importance is, apart from its function as a naval brig. I wonder what the man-in-the-street in Cuba thinks of having a part of Cuba perpetually occupied by another country. A recent article in the New York Times suggested it is almost as if the French had decided at the end of the American Revolution to occupy New York in perpetuity in return for helping the colonies free themselves from Great Britain. 

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