09 Aug Cuba, the Guantanamo Treaty, and the International Court of Justice
I only recently noticed this op-ed by Cuba expert Wayne Smith, a former head of the U.S. Interests section in Havana, noting that Cuba could easily claim the use of Guantanamo Bay as a detention center violates the Agreement between the United States and Cuba for the Lease of Lands for Coaling Stations, the treaty which is the basis for U.S. control of Gitmo. As Article II of that agreement makes clear,
The grant of the foregoing Article shall include the right to use and occupy the waters adjacent to said areas of land and water, and to improve and deepen the entrances thereto and the anchorages therein, and 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.
Presumably, the U.S. argument would be that detention center is “necessary to fit the premises for use as a … naval station…” but it doesn’t seem all that strong.
Now Cuba has a pretty good legal argument in search of forum. It might try suing the U.S. in federal courts, but would face innumerable obstacles, not the least of which is that the Agreement may or may not be a treaty, and even if it is a treaty, it may be a political question, and even if it is not a political question, the U.S. government would probably have sovereign immunity from such a suit.
As the op-ed suggests, Cuba might also try the ICJ, but neither Cuba nor the U.S. recognizes the compulsory jurisdiction of the ICJ. Cuba might nonetheless seek a General Assembly resolution pursuant to Article 96 of the U.N. Charter seeking an advisory opinion from the ICJ on whether the U.S. is in violation of the lease. Although merely advisory, such an opinion would embarrass the U.S. further and give Cuba a chance to further needle the U.S. The ICJ has shown itself to be willing to issue controversial advisory opinions (see the Israeli wall decision from last year) so this could actually happen. And the new U.S. Ambassador to the UN might have something useful to do after all….