The Cuban–American Treaty is a lease of property, and consists of two documents. The first was finalized in February 1903, and the second finalized in July 1903.
The treaty stipulates that Republic of Cuba lease to the United States specific lands in Cuba, most notably the land that surrounds Guantánamo Bay, for the purpose of coaling and naval stations, for as long as necessary. The lease stipulates that the United States "shall exercise complete jurisdiction and control", while recognizing "the continuance of the ultimate sovereignty of the Republic of Cuba". Cuban vessels involved in trade will have free passage through the waters. The United States has the right to modify the waters as necessary.
This lease fulfilled one of the promises that Cuba made to the United States in the Cuban–American Treaty of Relations.
The lease agreement for Guantanamo Bay was executed in two parts; the first, consisting of a statement of the intent to lease property in Cuba for a Naval Station, with the US to be given complete jurisdiction within the leased area, was signed in February with the following provisions:
- a promise to lease, for the time required, an area to be determined, at Guantanamo Bay, with Cuba to acquire and include any privately held interior lots, and two parcels of land and adjacent waters in Bahia Honda;
- the right to use the areas as naval stations, and for no other purpose, with a non-exclusive easement to adjacent waters;
- complete jurisdiction to belong to the US, while it "recognizes the continuance of ultimate sovereignty"[a] of Cuba.
The second document, which was signed five months later in July 1903, contains the specification of the land to be leased and the responsibilities of the two parties
- the annual lease payment of USD$2,000 in U.S. gold coin, as long as the US occupies and uses the areas
- US to build and maintain fences
- only for use as a Naval and coaling station
- mutual right of extradition
- a duty-free zone, but not a port of entry for weapons or other goods into Cuba proper
- Cuban shipping to have the right of access to the Bay
- ratification to be within seven months.
The Treaties of Relations
The 1903 Treaty of Relations and the 1934 Treaty of Relations refer to the 1903 leasing of the Bay.
The 1903 Treaty of Relations, signed in May, formalized the relationship between the two countries. One of the provisions of the treaty was a promise by Cuba to execute a lease for Naval Bases on the Island. This promise, taken together with other promises, allowed the president to withdraw most troops from Cuba.
The 1903 Treaty of Relations was superseded by the 1934 Treaty of Relations. It abrogated the 1903 treaty, but affirmed the lease.
The treaty actually fell short of the original desires of both the United States government and its military cabinet. Their aim was to accomplish the leasing to the United States of a total of four naval bases located in strategically favorable port areas of Cuba, including Guantánamo Bay. The other three were Bahia Honda (close to the Cuban capital of Havana), Cienfuegos, and Nipe Bay. The Isle of Pines was also considered for annexation into the United States. The Teller Amendment prohibited the annexation of Cuba, but the 1903 Treaty of Relations specified that that Island was not Cuban territory, leaving annexation open.
In partial compliance with its obligations under the lease, the U.S. sends a payment to the Cuban government each year. The payment due on July 2, 1974 was made by check in the amount $4,085, which is the same amount sent in 2006 regardless of the fact that with inflation $2,000 of 1903 dollars would be worth: $52,631.58 in 2013. After the Cuban Revolution, the government under Fidel Castro has cashed one of these checks. Castro says this was only done because of "confusion" in the heady early days of the revolution. The remaining checks, made out to "Treasurer General of the Republic", a position that ceased to exist after the revolution, were shown stuffed in a desk drawer in Castro's office during a television interview with the leader years ago.
The government of Cuba argues that the base is a constant affront to its sovereignty, stating that
- The base was taken under duress.
- The base is maintained under the threat of atomic force.
- The US has demanded that Cuba remove weapons operated by Cuban allies, while Cuba respects weapons operated by Cuban enemies.
- The base does not serve to protect Cuba, but to threaten Cuba.
- Weapons are smuggled into Cuba through the base.
- The land that belongs to Cuba is used to shelter criminals from justice.
- The Cuban government shall regain the territory not through force, but instead will wait and exercise its rights by the paths provided by international law.
- The base's workers, who are employed in jobs doing work contrary to Cuban national interests, are paid in pesos, which are claims upon the wealth of Cuba, which the workers do nothing to enhance.
The February 1903 lease, in Article II, states that the United States is allowed "generally to do any and all things necessary to fit the premises for use as coaling or naval stations only, and for no other purpose." The legality of the prison hinges upon whether the construction of a prison for the permanent arbitrary detention of people is necessary in order to fit the premises to the purpose of a naval (or coaling) station.
The lease is perpetual, the lease for the Naval Base is for "the time required", a date not known at the time of the signing, but objectively related to changing circumstances. The Cuban Missile Crisis ended with a pledge from the United States not to invade Cuba, a partial restoration of the purpose of the lease, and of Article I of the 1934 Treaty.
Cuba's constitution, which was adopted in 1901, included what is called the Platt Amendment, legislation that established conditions for American intervention in Cuba and gave the United States the right to maintain a military base on the island in perpetuity. The lease contains several critical provisions relevant to whether U.S. courts have jurisdiction over the base. First, the lease gives the United States "complete jurisdiction and control" of that territory, saying merely that it "recognizes the continuance of the ultimate sovereignty of the Republic of Cuba." Secondly, the lease can only be terminated on the mutual consent of both parties. Even though Cuba has wanted to terminate the lease since the revolution of 1959, it is unable to do so without the consent of the United States. The lease provides for a minuscule rent, some two thousand dollars in gold, although the Cuban government has refused to accept any payment since 1959.
- The meaning "ultimate sovereignty" is controversial. The phrase in Spanish is "la soberanía definitiva".
- Text of February 1903 lease, Yale Law
- Text of July 1903 lease Yale Law
- "Leasing of U.S. Base Guantánamo Bay". Suburban Emergency Management Project. January 29, 2010. Retrieved December 19, 2010. [Dead link]
- Strauss, Michael (2009). The Leasing of Guantanamo Bay. Appendix 12: ABC-CLIO Inc. p. 253. ISBN 0313377820. The appendix contains a reproduction of the check. Appendix 10 says that the check amount sent in 1973 was $3676.50
- Boadle, Anthony (17 August 2007). "Castro: Cuba not cashing U.S. Guantanamo rent checks". Reuters. Retrieved 2012-09-03. The article incorrectly reports that the amount is sent each month.
- US Joint Publications Research Service, 1977, pdf, English translation of 1970 Spanish document "Crimes and Provocations". Selected official comments made from 1960-1963, regarding the US occupation of Cuba, starting at page 31
- The Status Of Guantánamo Bay And The Status Of The Detainees, Alfred de Zayas. November 19, 2003 presentation
- Jurist, mentions that the prison is controversial, and says, without explanation, that lease is perpetual
- "Will Cuba Now Cash 55 Years' Worth of Guantanamo Rent Checks?". December 17, 2014. Retrieved 2015-04-23.
- Cuban-American treaty, 1903 (full text)
- Lease text, 1903 (full text)
- Cuban-American treaty, 1934, reaffirming the above (full text)
- 1969 Vienna Convention on the Law of Treaties (full text)