Can Guantánamo Return to Cuba?

Among the many urgent tasks facing the Obama administration, one of the most pressing is to restore good relations with Latin America and the Caribbean, which have been damaged by eight years of neglect.

A measure that could have far-reaching consequences and notably improve the U.S.' battered image in the continent would be to return Guantánamo to the Cuban people.

Improving the relationship with Latin America and the Caribbean by giving Guantánamo back to Cuba is pertinent, given the avowed interest of the new Cuban government on better relations with the U.S. and the Obama administration's decision to eliminate certain travel restrictions and obstacles to remittances to Cuba. This also is a particularly important issue since the U.S. announcement of its intention to close the Guantánamo facility.

Guantánamo has a convoluted history. Initially, the U.S. government obtained a 99-year lease on the 45 square mile area beginning in 1903.

The resulting Cuban-American Treaty established, among other things, that for the purposes of operating naval and coaling stations in Guantánamo, the U.S. had "complete jurisdiction and control" of the area. However, it was also recognized that the Republic of Cuba retained ultimate sovereignty.

In 1934, a new treaty reaffirmed most of the lease conditions, increased the lease payment to the equivalent of $3,085 in U.S. dollars 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, Castro's government cashed the first check but left the remaining checks 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 indicates acceptance of the lease conditions. However, at the time of the new treaty, the U.S. sent a fleet of warships to Cuba to strengthen its position. Thus, a counter argument is that the lease conditions were imposed on Cuba under duress and are rendered void under modern international law.

The U.S. has used the argument of Cuban sovereignty when denying basic guarantees of the U.S. Constitution to the detainees at Guantánamo by indicating that federal jurisdiction doesn't apply to them. If the Cuban government indeed has sovereignty over Guantánamo, then its claims over the area are legally binding and the U.S. is obligated to return Guantánamo to Cuba.

Since 1959, the Cuban government has informed the U.S. government that it wants to terminate the lease on Guantánamo. The U.S. has consistently refused this 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, has noted that article 52 of the Vienna Convention on the Law of Treaties states, "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 also believes that the conditions under which the treaty was imposed on the Cuban National Assembly, particularly as a pre-condition to limited Cuban independence, left Cuba no other choice than to yield to pressure.

A treaty can also be void by virtue of material breach of its provisions, as indicated in article 60 of the Vienna Convention on the Law of Treaties. According to the original terms of the lease agreement, the Guantánamo Bay territory could only be used for coaling and naval purposes.

However, the use of the Guantánamo facility as an internment camp for Haitian and Cuban refugees — or, even more ominously, as an alleged torture center of the U.S. military — indicates a significant breach of that agreement, fully justifying its immediate termination.

President Jimmy Carter courageously returned the Panama Canal to the Panamanians, thus setting an important precedent. President Carter did what was legally right, and lifted U.S. prestige not only among Panamanians but throughout the hemisphere.

Returning Guantánamo to the Cubans will allow the U.S. to close one of the most tragic chapters of its legal and moral history. And it will compensate Cubans for the miseries they have had to endure under Washington's misguided policies.

Cesar Chelala, a writer on human rights issues and foreign affairs, is a co-winner of an Overseas Press Club of America award.