Michael J. Strauss, Professor of International Relations at the Center for Diplomatic and Strategic Studies in Paris, is a specialist on territorial leases and servitudes between nations – “one of the foremost authorities on a neglected area of international law” (Global Journal). He also teaches international relations at Schiller International University in Paris, and lectures on the acquisition of territory in international law at the Belarusian State University in Minsk. Prof. Strauss is the author of two books -- The Leasing of Guantanamo Bay (Praeger, 2009) and The Viability of Territorial Leases in Resolving International Sovereignty Disputes (L’Harmattan, 2010), in addition to research papers and articles. He recently created a traveling university seminar called “Guantanamo Bay in Diplomacy and International Law.” Prof. Strauss earned his Ph.D. in international relations and diplomacy at the Centre for Diplomatic and Strategic Studies. He was an International Fellow at Columbia University’s School of International Affairs, and holds degrees in journalism from the University of Minnesota and Columbia. He studied international law in the United States and France.
This notion applies with substantial force in the context of the Guantanamo Bay lease. Strauss argues that the United States acquired "complete jurisdiction and control" over the leased territory, recognizing Cuba's sovereignty but effectively barring Cuba form asserting it. But, like sovereignty, the concept of "complete jurisdiction and control" exits "at the level of international relations." (Ibid). It is not a matter of Cuban or U.S. constitutional law, but rather a matter of the allocation of authority and responsibility within the community of states in the enforcement of the law of nations.
That distinction produces an important consequence for Strauss: it creates the possibility of a governance space between the authority of the United States over the territory (ie "complete jurisdiction and control") and the ultimate responsibility of Cuba (ie sovereignty). Between control and sovereignty lies state responsibility that may not be abrogated or transferred merely through the device of a lease. Complete control is a functional concept--stressing the act of privatizing or transferring responsibility for activity within a atonality space. But the sovereign that transfers does not, by the act of transfer, extinguish its ultimate rights and responsibilities in the territory affected. Beyond control there is the ultimate responsibility to monitor and protect the territory; there is, in effect, a governance space beyond control that touches on the ultimate responsibility of a sovereign for its territory, however it chooses to manage its relationship to its territory or obligation. The territory may be leased, but responsibility over it may not be extinguished--either de jure or de facto. But this is an international governance space, not a domestic one. Thus, as Strauss notes, the 1030s Cuban Supreme Court could determine that "Guantanamo Bay must be considered foreign territory for legal purposes." (Ibid, 3; citing In re Guzman & Latamble (1934), Cuba S Ct Ann Digest of Public Int'l Law Cases 1933-34). That might effect the relationship within the domestic legal order of Cuba of the relationship between the territory and the lessee, but it does not speak to the international obligations of the Cuban Republic (that is its obligations running to other states) with respect to activity on that leased territory.
These have effectively become the standards in use today. At the most basic level, the draft articles say that every state is responsible for its own internationally wrongful acts (Art. 1). A state may also be responsible for the wrongful acts of another state under some circumstances, for example, if it aids or assists the other state in the commission of the wrongful act (Art. 16), and if that assistance had the intent of “facilitating the occurrence of the wrongful act.” (Strauss, Does Cuba Shares Responsibility, supra, at 3).
Strauss first considers whether Cuba facilitated U.S. activity in Guantanamo Bay. He argues that clearly Cuba did, at least through 2002 by providing, through treaty, with the territory within which the United States could commit acts in violation of international law. But the initial facilitation leaves open the question of willing facilitation after 2002. " At issue, then, is whether Cuba was still willingly facilitating the occurrence of U.S. activities at Guantanamo Bay since the United States began holding prisoners there in 2002, and, if so, whether it was aware that some of those activities were allegedly wrongful under international law. An affirmative answer in both cases would seem to allocate some responsibility for those acts to Cuba." (Ibid.).
Strauss then suggests that the test of Cuban willingness to facilitate, through the continued permission to control Guantanamo Bay, " depends on whether it has voluntarily permitted the continued U.S. presence there or was forced to accept it." (Ibid.). The evidence, Strauss suggests, is ambiguous. On the one hand, it might be argued that Guantanamo has ceased to be leased territory and is now occupied by the United States, and in any case it was physically prevented from interfering by the terms of its lease--releasing Cuba from residual responsibility for U.S. acts on the territory. On the other hand, Cuba has taken little more than vaguely symbolic acts to abrogate its lease since 1959 (refusals to cash lease payments, etc.), and failed particularly to invoke "the principle of rebus sic stantibus, which allows a country to withdraw from a treaty when a fundamental condition underlying it has changed."(Ibid., 4). Further ambiguity arises from Cuban offers to facilitate U.S. use of the territory for the processing of refugees from the Kosovo conflict and the initial offer to help in the detaining of prisoners transported to Guantanamo in 2022. That is countered, of course, by the 2004 Cuban denunciation of U.S. actions in Guantanamo Bay made before the U.N. Human Rights Council in 2004, which included the charge of U.S. violation of international human rights law (Ibid.).
So, depending on the arguments one uses, a case may be established that Cuba willingly facilitated the entire range of U.S. activities at Guantanamo Bay during the period when the alleged U.S. violations of human rights were occurring, that it was aware of those allegations at the time and that it considered them credible. In allowing its territory to be used by the United States for wrongful acts, it met the threshold for having responsibility for those acts under the ILC draft articles. (Ibid., p. 6).
If this notion of international law hierarchy is accepted, these jus cogens obligations then put Cuba in a bind. "The stakes are therefore quite high when part of a state’s sovereign territory becomes the site of human rights abuses by another state. The situation forces the state with the sovereignty to face new legal and/or geopolitical risks as the result of the degree to which it is aware of the events, and also as the result of the course of action, if any, that it pursues." (Ibid., p. 7). And the stakes are high not just for Cuba, but for other states as well. Strauss draws attention to the soon-to-be-renegotiated treat for the lease of Diego Garcia , controlled by the United Kingdom, a place where extraordinary renditions have have been carried out in part. (Ibid). Strauss urges states that lease under these circumstances, at a minimum to consider the addition of lease provisions forbidding leasing states form using the leased territory to engage in acts of any kind that may constitute a violation of core international human rights law. And perhaps as well, Strauss, implies, that leasing states be permitted to effectively protect itself in those circumstances by additional provisions for terminating leases or seeking compensation. "By recognizing this as an inadvertent consequence of territorial arrangements like leases, nations may consider ways to reinforce human rights protections in locations of this nature. " (Ibid.).
But there is more. The development of an international law of lease relationships within a context of international human rights and other jus cogens obligations, will tend to bleed into other areas of law. In particular, these discussions will touch on the international public criminal law with its interpretation of facilitation, aiding and abetting. These concepts are important, as well, for the international public law related responsibilities of non-state actors. If sovereignty matters, then, for example, the state responsibility for human rights violations, under international law, applies irrespective of the domestic law of the state (and here the example of the 1934 Cuban Supreme Court case is important). It also suggests the public character of violations of international law within a national territory.