NAVAL RESERVATION LEASED
In 1903, the new Republic of Cuba leased to the United States the Naval Reservation on which the Naval Station was to be located. The lease was negotiated to implement an act of Congress of the United States approved 2 March 1901, and an appendix to the Constitution of the Republic of Cuba promulgated 20 May 1902. Each of these contained an identical article, to wit:
"VII. That to enable the United States to maintain the independence of Cuba, and to protect the people thereof, as well as its own defense, the government of Cuba will sell or lease to the United States lands necessary for coaling and Naval stations at certain specified points to be agreed upon by the President of the United States".
The terms of the lease arrived at are contained in three documents -two agreements and a treaty. The contents of these documents are not well known. At times they have been misunderstood locally and also in Havana and Washington. It is small wonder that such has been the case. It was reported officially in 1936 that the Naval Station did not even possess a copy of the original lease agreement. This is only one example of a number that could be cited. It therefore appears desirable to devote a chapter to the terms of the lease, and to their precise meaning with regard to the obligations of Cuba and the United States, together with a description of the area of land and water acquired in the transaction.
The first lease agreement, copy appended for reference, was signed by President Estrada Palma on 16 February 1903, and by President Theodore Roosevelt on 23 February 1903. By this instrument Cuba leased to the United States certain areas of land and water in Guantanamo and Bahia Honda for the purpose of "coaling and naval stations". (Bahia Honda was abandoned after nine years of occupation). Concerning Guantanamo, the agreement describes the leased "areas of land and water" as follows:
"In Guantanamo (see Hydrographic Office Chart 1857), from a point on the South Coast, 4.37 miles to the eastward of Windward Point Light House, a line running north (true) a distance of 4.25 nautical miles; from the northern extremity of this line, a line running west (true), a distance of 5.87 nautical miles; from the western extremity of this last line, a line running south-west (true), 3.31 nautical miles; from the southwestern extremity of this last line, a line running south (true) to the seacoast".
The land area above described comprises 19,621 acres, 11,058 on the windward side, and 8,563 on the leeward. The water areas, consisting principally of Guantanamo Bay from the mouth of the harbor (theoretical line joining Leeward and Windward Points) to the northern boundary line, comprise 9,196 acres. The total naval reservation contains 28,817 acres or about 45 square miles of land and water. (The foregoing figures are based on the original survey).
Furthermore, the agreement granted the United States the right to use and occupy the waters adjacent to the above described areas of land and water. "Adjacent waters" are interpreted to mean the water leading up to the harbor entrance and the water along the seacoast out to the three mile limit. The United States has the right to improve and deepen the entrances to the leased areas of land and water, and to improve and deepen the anchorages therein, and generally to do. any and all things to fit the premises as a coaling and naval station, and for no other purpose.
Over the leased areas of land and water, comprising the Naval reservation, Cuba consented that during the period of occupation, the United States would exercise "complete jurisdiction and control over and within said areas", including the right to acquire for the public purposes of the United States any land or property therein by purchase or by right of eminent domain with full compensation to the owners thereof. On the other hand, the United States recognized "the continuance of the ultimate sovereignty of Cuba over and above the leased areas". "Ultimate", meaning final or eventual, is a key word here. It is interpreted that Cuban sovereignty is interrupted during the period of our occupancy, since we exercise complete jurisdiction and control, but in case occupation were terminated, the area would revert to the ultimate sovereignty of Cuba.
The only restrictions placed by this document on the United States are:
(a) The area must be used only for a coaling and naval station ("station" here used in the broad sense of the word.)
(b) Vessels engaged in Cuban trade shall have free passage through the waters included in the grant.
Pursuant to the agreement of February 1903, the Naval reservation was surveyed and marked out by a joint United States-Cuban Board (Commission). The first meeting of this body took place on board the USS Olympia anchored in Guantanamo Bay on 27 May 1903, and the general plans of the operations were agreed upon. On the next day the work of survey and marking out of the Naval Station was begun, and was continued without interruption on working days until its termination on 8 July 1903.
In the years since this survey there has been occasional misunderstanding of what constitutes the water areas of the Naval Reservation. There was no misunderstanding in the minds of the joint United States-Cuban body which made the above survey. Their thinking was crystal-clear. The last part of their report, which must be considered ancillary to the original lease agreement, is quoted in evidence on this point:
"G-Area of the Naval Station
The area of water and land, obtained analytically, included within the limits of the Naval Station, closing the perimeter across the entrance to the harbor by a line joining Leeward and Windward Points, was found to be 11661.9832 hectares, equal to 28817.360 acres.
"To determine the proportion of land and water in the area, it would be necessary to survey the interior coast lines of the bay and the Guantanamo River, a work which on account of its nature and extent, would have required about three months to do.
"Considering that in the year 1899, the officers of the gunboat Eagle of the United States Navy were several months on the ground doing precisely this work, together with soundings of the bay, and that the accuracy of their work was well checked by the present survey, the notes and original plans of work were asked for and received from Washington. With these data, the interior coast lines of the accompanying plan were plotted, using the same scale, 1 to 10,000, of the original plans. By planimeter measurements the following result was obtained.
"Area of Land
Seven thousand nine hundred forty and 2832/10,000 hectares equals Nineteen thousand six hundred twenty and 848/1000 acres.
"Area of Water of Public Domain
Three thousand seven hundred twenty-one and 7000/10,000 hectares equal Nine thousand one hundred ninety-six and 512/1000 acres.
"Total Area of the Naval Station
Eleven thousand six hundred and sixty-one and 9832/10,000 hectares equals twenty-eight thousand eight hundred seventeen and 360/1000 acres".
The above report was signed for Cuba by Jos� Primelles, Director General of Public Works, President of Cuban Commission, and by Augustine Gordillo, Engineer in Charge; and for the United States, by Captain H. W. Lyon, Senior Member of the U. S. Board, and by LCDR Warren McLean and LT H. K. Benham, all of the U.S. Navy. The place and date of signature was on board the "U. S. Flagship Olympia" in Guantanamo Bay, 8 July 1903.
In the meantime, a supplementary agreement concerning the Naval reservation had been reached between the United States and Cuba. This agreement which was signed at Havana on 2 July 1903, and approved by President Theodore Roosevelt on 2 October 1903, is appended for reference. The salient points of this agreement are as follows:
(a) The United States contracted to pay Cuba the annual sum of two thousand dollars in gold.
(b) All private lands or other real property were to be acquired by Cuba with funds to be provided by the United States, such funds to be accepted as advance payment on the annual rental of $2000. (This clause was obviously for the purpose of acquiring land and property from property owners in order that Cuba could lease the area with no private encumbrances).
(c) The areas were to be surveyed and the boundaries distinctly marked by permanent fences or enclosures-the United States to bear the expense of construction and maintenance of such fences or enclosures.
(d) The Unites States agreed that no person, partnership, or corporation would be permitted to establish a commercial, industrial, or other enterprise within the reservation.
(e) It was agreed that fugitives from justice charged with crimes and misdemeanors amenable to Cuban law, taking refuge in the reservation, should be delivered to Cuban authorities, on demand; and likewise that fugitives from justice charged with crimes or misdemeanors amenable to United States law, committed within the reservation, taking refuge in Cuban territory, should be delivered on demand.
(f) It was agreed that materials of all kinds, merchandise, stores, and munitions of war imported into the reservation, for exclusive use and consumption therein, should not be subject to payment of customs duties nor any other fees or charges, and the vessels which might carry the same would not be subject to payment of port, tonnage, anchorage, or other fees. This in effect, made Guantanamo Bay a "duty-free port". It was further agreed, however, that such materials, merchandise, stores, and munitions of war should not be transported from the reservation into Cuban territory.
(g) The United States agreed, except in case of war, to place no obstacle in the way of vessels entering or departing from Guantanamo Bay en route to or from Cuban ports (e.g., Caimanera); such vessels within the limits of Cuban territory to be subject exclusively to Cuban laws and authorities.
Treaty of 1934
In all provisions regarding the Guantanamo area, the original agreement (February 1903) and the supplementary agreement were later confirmed by the Treaty of 1934 between the United States and Cuba, signed at Washington on 29 May 1934. A copy is appended for reference. This treaty has the effect of giving the United States a perpetual lease on this reservation, capable of being voided only by our abandoning the area or by mutual agreement between the two countries. The so-called "Platt Amendment," which gave the United States the right to intervene in Cuba, died with this treaty. Bahia Honda was not mentioned, having long since been abandoned.
Thus it is clear that at Guantanamo Bay we have a Naval reservation which, for all practical purposes, is American territory. Under the foregoing agreements, the United States has for approximately fifty years exercised the essential elements of sovereignty over this territory, without actually owning it. Unless we abandon the area or agree to a modification of the terms of our occupancy, we can continue in the present status as long as we like. Persons on the reservation are amenable only to United States legislative enactments. There are a few restrictions on our freedom of action, but they present no serious problem. We may not use the reservation for other than a naval station; we have agreed not to interfere with the passage of vessels engaged in Cuban trade; private enterprise is forbidden on the reservation; and we are obligated to prevent the smuggling of materials and merchandise into Cuban territory.
The prosecution of Cuban Nationals and other aliens who commit crimes and misdemeanors on the reservation presents a subject that should be mentioned. Until the advent of the Uniform Code of Military Justice on 31 May 1951, the United States has had no peacetime legal machinery for trying such offenders. Accordingly, we have habitually requested local Cuban courts to exercise concurrent jurisdiction and handle such cases. Because essential witnesses, usually U. S. military personnel, are oftentimes transferred before offenders are brought to trial, this procedure has its shortcomings. However, it will likely be continued. In a reciprocal manner, U. S. military personnel, charged with offenses in Cuba, are habitually turned over to U. S. jurisdiction for legal action.
While this chapter is designed to cover the terms of our lease, and what they mean in a legal sense, no outline of the reservation's legal status would be complete and up-to-date without mention of the executive order which made Guantanamo Bay a "closed port". This order, signed by the President on 1 May 1941 and currently found in General Order No. 13, establishes Guantanamo Bay as a "Naval Defensive Sea Area" and a "Naval Air Space Reservation". By its terms no vessel or other craft, other than public vessels of the United States and vessels engaged in Cuban trade, may be navigated into the area, unless similarly authorized, no aircraft, except other than public aircraft of the United States, may be flown into the reservation. In other words, Guantanamo Bay is closed to commercial shipping and aircraft, except vessels engaged in Cuban trade, and also to foreign warships and aircraft. Vessels and aircraft in distress can be the only exceptions to this regulation.
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