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International Legal Status of Guantanamo Bay

Published online by Cambridge University Press:  28 March 2017

Joseph Lazar
Joseph Lazar*
Affiliation:
University of Colorado
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Notes and Comments
Information
American Journal of International Law , Volume 62 , Issue 3 , July 1968 , pp. 730 - 740
Copyright
Copyright © American Society of International Law 1968

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References

1 30 Stat. 738.

2 Ibid.

3 30 Stat. 364.

4 2 Malloy, Treaties, Conventions, International Acts, Protocols and Agreements Between the United States of America and Other Powers 1688 (Washington, D. C.: U.S. Govt. Printing Office, 1910).

5 'Ibid. 1690.

6 The anomalous legal status of Cuba was described in 1900 by Carman F. Randolph: ” From the Cuban standpoint the island is in a singular position. Severed from Spain; not joined to the United States; not the territory of a Cuban state; Cuba is in some sense merely a region administered by a foreign master. '’ Yet although the island is not the seat of a state it possesses a marked characteristic of an organized society—a body of law: Spanish in origin, yet retaining its vitality after the withdrawal of Spain; alterable by the government we have established, yet never becoming United States law, this body is the law of the place, and the fact of its existence makes Cuba to some extent a political encity. To this law of the place, both civil and criminal, all persons in Cuba are subject, including all foreigners excepting our citizens whose connection with the army may subject them to the military laws of the United States…. ‘ ‘ The Cubans are not, of course, citizens of the United States, nor are they technically our subjects, though if they can be said to owe allegiance to any political head it is to the government we have set over them.” Carman P. Randolph, “Some Observations on the Status of Cuba,” 9 Yale Law Journal 353, at 358-359 (1900).

7 The Establishment of Free Government in Cuba, Compiled in the Bureau of Insular Affairs from the records of the War Department, April 27, 1904. Presented by Mr. Platt, S. Doc. No. 312, 58th Cong., 2d Sess., p. 7 (Washington, D. C.: Govt. Printing Office, 1904).

8 ibid. 11.

9 30 Stat. 895, at 898. See also 4 A.J.I.L. Supp. 178 (1910).

10 Papers Relating to the Foreign Relations of the United States, with the Annual Message of the President, transmitted to Congress Dec. 2, 1902, p. 362 (Washington, D. C: Govt. Printing Office, 1903).

11 lbid. 364.

12 The Establishment of Free Government in Cuba, op. cit. 12; 1 Hyde, International Law Chiefly as Interpreted and Applied by the United States 59-60 (Boston: Little Brown & Co., 2nd rev. ed., 1951).

13 The Establishment of Free Government in Cuba, op. cit. 17.

14 I Malloy, op. cit. 358-359.

15 Papers Relating to the Foreign Relations of the United States, with the Annual Message of the President transmitted to Congress Dec. 7, 1903, p. 357 (Washington, D. C: Govt. Printing Office, 1904).

16 I Malloy, op. cit. 360-362.

17 Ibid. 360-362. The United States relinquished Bahia Honda in exchange for enlarged boundaries for Guantanamo. 1911 U. S. Foreign Relations 110-126; 1912 ibid. 293-297.

18 I Malloy, op. cit. 362-364, at 364; 4 A.J.I.L. Supp. 177 (1910).

19 Treaties, Conventions, International Acts, Protocols, and Agreements Between the United States of America and Other Powers, 1923-1937, pp. 4054-4055; 28 A.J.I.L. Supp. 97 (1934).

20 Ibid.

21 1934 U. S. Foreign Relations (Vol. 5) 185 (Washington, D. C : IT. S. Govt. Printing Office, 1952).

22 Charles Cheney Hyde, commenting on the 1934 Treaty of Relations with Cuba, states: “ I f ‘territorial propinquity creates special relations between countries’ which profess to be independent of each other, it may be suggested that the geographical relationship between the United States and Cuba has served to establish an interest of the former in the affairs of the latter that must persist despite the abrogation of the treaty that embodied the provisions of the Platt Amendment.” Op. cit. 63.

23 The notion of the different “ planes “ or standpoints of the international and municipal legal systems is illustrated by the language in the Chorzὸw Factory Case decided by the Permanent Court of International Justice (Series A, No. 17 (1928), pp. 27-28): '’ The rules of law governing the reparation are the rules of international law in force between the two States concerned, and not the law governing relations between the State which has committed a wrongful act and the individual who has suffered damage. Eights or interests of an individual the violation of which rights causes damage are always in a different plane to rights belonging to a State, which rights may also be infringed by the same act. The damage suffered by an individual is never therefore identical in kind with that which will be suffered by a State; it can only afford a convenient scale for the calculation of the reparation due to the State.“

24 In Vermilya-Brown v. Connell, 335 U.S. 377 (1948), 43 A.J.I.L. 172 (1949), the United States Supreme Court observed that “ the United States was granted by the Cuban lease substantially the same rights as it has in the Bermuda lease” and regarded both the Guantanamo and Bermuda leases as “possessions” in the intent of Congress for the application of the Fair Labor Standards Act. A right which avails against the world at large may be thought of as in rem, or as a form of property; while a right which avails against another person or certain determinate persons may be thought of as in personam, or as a form of obligation of contract.

25 Annual Digest, 1933-1934, Case No. 43, p. 112.

26 Attorney General John G. Sargent in opinion to the Secretary of the Treasury, 35 Ops. Atty. Gen. 536, at 540 (1929).

27 44 Stat. 1424 (1927), 56 Stat. 1035 (1943), noted by the United States Supreme Court in Vermilya-Brown v. Connell, 335 U.S. 377 at 383 (1948).

28 On the theory of fundamental breach of treaty, with possible application to Guantanamo Naval Station, see Robert L. Montague III, “A Brief Study of Some of the International Legal and Political Aspects of the Guantanamo Bay Problem,” 50 Kentucky Law Journal 459 (1962).