Guantanamo Bay, a legal black hole?

Abstract: Guantanamo Bay has been in the centre of medias attention for a while, especially since the United States in the year 2002 began placing taliban and al-Qaida detainees there. Much of the attention has concerned the United State's lack of compliance with the Geneva Conventions and the protection that it affords prisoners of war. This thesis takes a look behind the scene, in order to try to establish why the United States places detainees in Guantanamo Bay, primarily focusing on how the United States initially came to ''possess'' Guantanamo Bay. The aim of this thesis is to examine whether Guantanamo Bay is sovereign territory of the United States or a mere piece of rental property with Fidel Castro as the current landlord? The United States received control and power over Guantanamo Bay through a leasing arrangement concluded with Cuba in 1903. Art III of the Leasing Agreement of Guantanamo Bay states that: ..... the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas [Guantanamo Bay] of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas. This provision in the Leasing Agreement of Guantanamo Bay coupled with the extensive control that the United States in practice exercises over Guantanamo Bay and the fact that there is no time limit to the United States lease of Guantanamo Bay has led to different interpretations concerning the allocation of sovereignty. Some scholars claim that a transfer of sovereignty has occurred and some claim the opposite. One might ask why it is so important to identify the holder of sovereignty over Guantanamo Bay and if it would make a difference whether it is Cuba or the United States. A recent judgement in June 2004 in the case Rasul Et Al. v. Bush, the United States Supreme Court held that detainees placed in Guantanamo Bay have the right to access to American courts. The judgment does not clarify the status of Guantanamo Bay and if the detainees could have their claims tried in a Cuban court. The resolving of which state has sovereignty over Guantanamo Bay would provide answers to those questions and permanently stop the use of Guantanamo Bay as a legal ''black hole''. The thesis is structured as a combined descriptive and analytical study, applying theories concerning sovereignty and international territorial leasing agreements to the lease of Guantanamo Bay. I have also conducted a comparative study of the New Territories, Panama Canal Zone and Guantanamo Bay with the purpose of examining the validity of theories concerning sovereignty and international territorial leases and to identify common features concerning the issue of sovereignty over leased territory. The test of title is often used as a method of determining which state possesses sovereignty over territory. In all probability, the United States does not possess a valid title to Guantanamo Bay, since it is not likely that they validly acquired a legal title, as lease is not an accepted mode of acquiring title to territory according to international law. If the lease in reality is a cession, in accordance with the theory of disguised cession, the United States would probably have the better title to Guantanamo Bay since they for more than a 100 years solely have exercised all the regular prerogatives of a government and thus fulfilling the second part of the test of title to territory better than Cuba. The theories of disguised cession and time-limited cession are not accepted theories of international law, today one might even describe them as highly criticized. The situation of Guantanamo Bay being a time limited cession is not very likely, since there is no stipulated end time to the United States possession of Guantanamo Bay. The United States possession of Guantanamo Bay bears many similarities to a disguised cession, but it is difficult to clearly establish the real effects of the lease. A key question in regards to disguised cessions is whether Cuba has the right of disposition? If not, then in all probability the United States are sovereign over Guantanamo Bay. The comparative study exposes that it is difficult to draw general conclusions concerning the legal effects of international territorial leases since all leases are distinct in wording and effect. The two leases of Guantanamo Bay and the Panama Canal Zone are more similar, which can be explained by the fact that they were concluded by the same state, this being the United States, at more or less the same time. The lease of the New Territories differs from the two other leases, both in wording and subsequent state practise. The uncertainties concerning sovereignty in the case of the New Territories stems from Great Britain's unilateral Order in Council by which they accorded the New Territories the same status as that of ceded Hong Kong and the subsequent occupation of the city of Kowloon. In my opinion it is probable that the United States does not have a valid title to Guantanamo Bay since it seems unclear if they could be adjudged title in accordance with the test of title to territory. It is on the other hand likely that Cuba does not possess complete sovereignty over Guantanamo Bay, since according to the leasing agreements and the Treaty of 1934 Cuba made extensive derogations from complete sovereignty, with the United States as beneficiaries. An examination concerning the allocation of sovereignty over Guantanamo Bay reveals that it is likely that an extensive derogation from complete sovereignty has occurred, leaving neither Cuba nor the United States with full territorial sovereignty over Guantanamo Bay. The extent of governmental functions exercised by the United States, to the complete exclusion of Cuba, makes it very feasible that the United States has the effective sovereignty, leaving Cuba with the titular sovereignty, at the most. It is in other words likely that Cuba has not been deprived of their ultimate right of disposal of Guantanamo Bay.