Pregledni rad
Applicability of rebus sic stantibus to the Cuban-American Treaty on the US Military Base in Guantanamo Bay
Ivica Kinder
; Glavn stožer Oružanih snaga RH, Zagreb, Hrvatska
Sažetak
Pursuant to the Treaty between Cuba and the USA of 1903, the USA has had a military in Guantanamo Bay, Cuba. The United States recognizes Cuba's sovereignty over the base's territory, while Cuba has relinquished to the USA complete jurisdiction and control over the area. Since the political changes in Cuba of 1959, the Cuban authorities have been advocating the closing-down of the base. However, the USA and Cuba agree that any dispute concerning an international treaty can only be solved in the way envisaged in that treaty by its parties, i.e. that no state can be forced to submit to trial, arbitration or mediation concerning a dispute over a treaty.
Clausula rebus sic stantibus as a way to terminate a treaty, disputed both by scholars and in practice, requires a fundamental change of circumstances with regard to those existing at the time of the conclusion of the treaty, provided that the treaty contains no ratione temporis provisions, and assuming that the parties entered into the treaty on the basis of certain circumstances. Considering the content of the reservations expressed by the USA and Cuba on the Vienna Convention on the Law of Treaties, the applicability of rebus sic stantibus should, in principle, not be disputable. However, the issue remains whether there is enough foundation for invoking the said clause, i.e. what the parties' positions are regarding this issue.
The author also analyses what would constitute the factual achievement of the purpose of the treaty regarding the Guantanamo bay naval base, and what would constitute a fundamental change of circumstances, i.e. what the USA and Cuba would have decided at the time of the conclusion of the Treaty had they been able to foresee the subsequent changes of circumstances.
Ključne riječi
treaty; military base; Guantanamo Bay; clausula rebus sic stantibus; Camp X-Ray
Hrčak ID:
94480
URI
Datum izdavanja:
19.10.2012.
Posjeta: 2.273 *