Michael Strauss on 'Does Cuba Share Responsibility for Human Rights at Guantanamo Bay?'

My friend Michael Strauss is presenting an excellent and provocative paper at the annual conference of the Association for the Study of the Cuban Economy which will be hosting its 22st Annual meeting and Conference in Miami August 1-4, 2012. For the Preliminary Program, please click here»; For Press Release for the Meeting, please click here ».  The paper, entitled, Does Cuba Share Responsibility for Human Rights at Guantanamo Bay is the subject of this post.

(Michael Strauss, Pix from The Global Journal)

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. 

 

 (Pix from Guantanamo Bay, US Department of Defense)

 

Professor Strauss starts with the context for the issue to be considered: since 2002 the United States has been using its naval base at Guantanamo Bay in Cuba for the detention of prisoners involved in the various conflicts in which the United States is currently engaged, mostly subsumed under the generic "war against terror" label. The U.S. has been accused of violating one or another international human rights law/norm in its operation of the base and in its detention of these prisoners. The United States has never disputed Cuban sovereignty over the territory that it occupies for its naval base, but it has not allowed Cuba to exercise any sovereign authority over that territory since it tool possession over a century ago. And thus the question: "can Cuba be found to have some responsibility if the United States violates human rights at Guantanamo Bay?" (Strauss, Does Cuba Shares Responsibility, supra, at 1). The question is important "because it can have implications for nations around the world that allow their territory to be used by other countries through bilateral leases and similar arrangements." (Ibid.). 

 

 Determining liability, however, is not necessarily a straightforward exercise. An answer requires examination of the particularities of the lease itself, and the balancing of a number of potentially relevant factors, including: "existing notions of state responsibility for wrongful acts, the issue of whether Guantanamo Bay can be considered occupied territory, the hierarchy of norms in international law, the evolution of human rights law, and, of course, geopolitical realities." (Ibid.)." His answer, potentially disconcerting to Cuba and more generally to any state that seeks to lease its territory to another state, is potentially--yes, even where the lessor may not exercise effective sovereignty in any form over the territory!

Strauss starts with an examination of the lease and its negotiation of Cuban sovereignty over the territory of the Guantanamo Bay. He notes that such leases are not unusual, they tend to reaffirm the ultimate sovereignty of the lessor state and are usually effectuated through agreement denominated leases but which are more in the character of treaty. (Ibid., 1-2). In the case of the lease of Guantanamo Bay, the lease actually consists of three related agreements: “Agreement for the lease to the United States of lands in Cuba for coaling and naval stations,” Treaty Ser No 418 (1903); “Lease of certain areas for naval or coaling stations,” Treaty Ser No 426 (1903); “Treaty of Relations,” 48 Stat 1682, Treaty Ser No 866 (1934)." (Strauss, Does Cuba Shares Responsibility, supra, at 2, n. 3). The assignment contemplated in these agreements is comprehensive, effectively blocking the state with ultimate sovereignty form intervening in the activities of the leasing state. But what if the leasing state is violating international law through its actions? Strauss approaches this issue by deriving a fundamental analytical premise derived from notions of sovereignty which are not undercut by violations of international law: "We can therefore consider an obligation arising from international law to be a true responsibility." (Ibid, p. 2). This is a responsibility that, arising from sovereignty, cannot be negotiated away even when functional control is ceded through international instruments. Thius if sovereignty means anything, it means that a state may not negotiate away the principle consequence of sovereignty--responsibility for all acts committed on its territory--even when it decides to permit others to exercise it.  Sovereignty, then, puts the state in the position of guarantor of appropriate conduct within its sovereign territory even when it chooses to exercise that authority through other states (for example, lessee states). 

 (Pix from Jon Stewart’s Guatanamo Bay Source Explains Why the Prison Is Still Open).

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.

This is a critically important insight that applies not only to leases of national territory, but to all efforts to privatize state activity.  The sovereign authority of states may not be avoided by privatizing it.  That activity remains sovereign and public in character and subject to the direct application of public international law, as applied to the state directly and indirectly to the downstream state agent.  There is a sense of this notion in the recent European "golden share cases-- Backer, Larry Catá, The Private Law of Public Law: Public Authorities as Shareholders, Golden Shares, Sovereign Wealth Funds, and the Public Law Element in Private Choice of Law. Tulane Law Review, Vol. 82, No. 1, 2008.  And it is foundational to the idea of corporate responsibility for international human rights in the recently developed U.N. Guiding Principles of Human Rights--Backer, Larry Catá, From Institutional Misalignment to Socially Sustainable Governance: The Guiding Principles for the Implementation of the United Nation’s 'Protect, Respect and Remedy' and the Construction of Inter-Systemic Global Governance (September 5, 2011). Pacific McGeorge Global Business & Development Law Journal, 2011. 

And thus, Strauss arrives at the central element of his examination--the extent of a state's responsibility for internationally wrongful acts committed on its territory, irrespective of the extent of its direct control thereof. To answer that, Strauss turns to the U.N. International Law Commission's Draft Articles on the Responsibility of States for Internationally Wrongful Acts (2001). He argues: 

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).

The issue for Cuba, then would center on the application of the notions of aiding, abetting, facilitating, in this case the wrongful conduct of its lessee, the United States, subject to exculpation in the control of the lessee shifts from that of a holder through treaty to that of an occupier, in which case notions of force majeure would exculpate the lessor. (Ibid.). Strauss then considers each.

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).

The case for the transformation of the lease relationship to an occupation relationship, then, for Strauss, is not strong. But that weakness also opens the possibility that Cuba would be deemed to retain effective if residual sovereignty, and that it, as a matter of law, facilitated U.,S. wrongful conduct under international law. (Ibid., p. 6). That mere possibility ought to worry Cuba, and all states that have entered into lease arrangements of a similar kind. There is a real risk that Cuba could be deemed to shares responsibility for U.S. human rights abuses. That risk is augmented by the application of what Strauss refers to as an emerging hierarchy of international law. That hierarchy would posit that a state's obligations to avoid violations of core international human rights law is superior to the treaty obligations of states, including treaty obligations arising from lease arrangements. But these notions remain contested; " At present, the responsibility to protect is a controversial notion; it runs counter to the long-standing principle of non-intervention in the internal affairs of states, and it is not universally accepted." (Ibid., 6-7).

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.  

 

Combined with the concept of aiding and abetting, it suggests as well a space for the direct liability of non-state actors for violations of international law where that violation is tied to actions that touch on residual sovereign obligations. It can, for example, suggest a space for broader state liability for the human rights violations of corporations or other non-governmental organizations operating within its territory. It can suggest the connection between state and non-governmental actors may collude, and by colluding, facilitate joint violations that, because of state involvement, can acquire a public character. This, in turn can affect the way in which the discusison of domestic law interventions in international law--for example in the United States through the Alien Tort Claims Act which is the subject of the Kiobel case (eg John Ruggie and Philip Alston: Amici on Kiobel v. Royal Dutch Petroleum--On Corporate Liability Under International Law, Extraterritoriality and Culpability for Aiding and Abetting, Law at the End of the Day, July 14, 2012). 

 

And of course, it serves to deepen a discussion of the meaning of control over a territory, when that control can be shared, privatized, split or negotiated away. Strauss contends that there is something inherent in what serves as the core of the ideology of the state--the connection between, on the one hand, the state as abstraction, and on the other, the notion of territory as the space in which this abstraction is manifested--that limits the power of states to undo its core premise. That core premise--that states are responsible for the territory that defines them, and that, in fact, there is an identity between the idea of the state and the extent of territory, may, in the context of the globalization of law, have significant effects on the way ion which state-territory-and law interact.