Der völkerrechtliche Status der US-amerikanischen Militärbasis Guantánamo in Kuba

The status of the US military base at Guantánamo Bay, established under the Lease Agreement of 1903 between the United States of America and Cuba, has been challenged by Cuba for more than 50 years. Based on public international legal norms and principles, and the rules of the law of treaties in particular, this article explores the legal status of this US military base in Cuba. Although neither the Lease Agreement, nor the 1934 Treaty on US relations with Cuba – the most recent treaty of relevance to the legal status of Guantánamo Bay -, contains provisions governing their respective termination, this study outlines possible legal grounds for such termination in accordance with the law of treaties. Any violation of the prohibition of torture, having ius cogens character, would have to be characterised as a material breach in the sense of Article 60 VCLT, and thus, where relating to detainees at the US military base at Guantánamo Bay, would entitle Cuba to terminate the treaties. Should the right of peoples to self-determination qualify as a generally applicable ius cogens norm, Cuba would also be entitled to make reference to the provisions of Article 64 VCLT, with similar effect. Should neither of these provisions be applicable, at least the rebus sic stantibus clause, contained in Article 62 VCLT, could be regarded as constituting a legal ground for the termination of the bilateral treaties. In order to effectuate such a termination of the treaties, Cuba could pursue measures of peaceful settlement. The most realistic path here would be to seek a request of the General Assembly to the International Court of Justice for an advisory opinion on the question according to Article 96 para. 1 UN Charter. The optimal solution of this international problem, which raises serious concerns regarding the state sovereignty of Cuba, would, however, be the negotiation of a new treaty between the United States and Cuba with the aim of returning the territory of Guantánamo Bay to Cuba, as was done between the United States and Panama with regard to the Panama Canal Zone. From a political perspective, there would appear to be no more favourable time to attempt such a resolution than under the present US administration of President Obama.