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Photo courtesy of the interviewee
"The Leasing of Guantanamo Bay" (Praeger, 2009).
Michael Strauss (Philadelphia, 1953) is currently Lecturer in International Relations at the Centre d’Etudes Diplomatiques et Stratégiques in Paris.
He obtained his Ph.D. in International Relations and Diplomacy at the same institution in 2006. In the 1970s, he had obtained a B.A. and M.Sc. in Journalism in the US and was an International Fellow at the School of International Affairs of Columbia University.
In this interview, Mr. Strauss explains what territorial leasing is about. How can territorial leasing help in solving border disputes? Does it have any disadvantages? Which existing boundary problems could get solved by means of territorial leasing?
Mr Strauss has recently published "The Leasing of Guantanamo Bay" (Praeger, 2009):
Book details at website of publisher
Territorial leasing at the level of states has never been a clearly defined activity in either international relations or international law, but defining it is necessary for understanding it. I consider a territorial lease to be an agreement – usually a treaty – that creates sovereign-like rights for one state on the territory of another through an arrangement that generally emulates a lease in private law. The rights established by a territorial lease comprise a servitude that limits how the lessor state displays its sovereignty in the area involved, while it extends the geographic area in which the lessee state can exercise aspects of sovereignty.
In general, a state-to-state lease will contain three main elements: a transfer of rights from the lessor state to the lessee state, a duration aspect and a compensation aspect. The latter two may not always be present, however, because states are not the same as property owners and leases between states involve political considerations that differ from the commercial motives of private-law leases.
The rights that are transferred usually can be divided into two types – rights associated with the objective of the lease, and jurisdictional rights that are meant to facilitate the lease’s implementation. The rights tied to the lease’s objective can be narrow, such as the right to exploit a particular natural resource, or they can be comprehensive, to the point where the lessee state has full control of the leased territory and the lessor holds a residual sovereignty that may be largely empty but remains a legal fact.
The duration aspect can take various forms. A lease can have a fixed term, or it can have an initial term with automatic continuation if neither state does anything to terminate it when that term is reached. A territorial lease can also be for an indefinite period, for example with an end point based on a geopolitical event, or it can be made in perpetuity.
As for compensation, this can range from a rent that reflects the actual value of the territory to a token rent that simply acts as the lessee state’s periodic acknowledgment of the lessor state’s sovereignty. Sometimes no rent at all is paid, but it is important to keep in mind that both states involved in a lease get some kind of benefit from it – one gets the use of the territory, and the compensation for the other may be a sought-after improvement in political or economic relations.
Territorial leasing can have disadvantages for the lessor state if the transfer of rights is so comprehensive that the lessee state is tempted to claim sovereignty over the territory after a period of controlling it. Sovereignty over leased territories has occasionally been transferred this way, causing some scholars a century ago to refer to territorial leases as "disguised cessions." Yet this is far from the rule, since leased territories have also been returned to the lessor states upon termination of the leases – modern examples being Hong Kong, which reverted back to China, and the Panama Canal, which reverted back to Panama.
That said, problems that arise with territorial leases are usually the result of the specific terms contained in the lease. Cuba’s lease of Guantanamo Bay gave the United States "complete jurisdiction and control" over the territory, which prompted Cuba’s Supreme Court to rule that Cuba had to consider the area as foreign for legal purposes, even though Cuba retained "ultimate sovereignty." That left Cuba with no active authority on this piece of its sovereign territory.
There is also the danger that the lessee state may not leave, and if it’s a strong state the lessor may not be able to kick it out. Guantanamo Bay is an example of this, too. Cuba has called on the United States to go home ever since the Cuban revolution in 1959, but the United States has argued that the lease is a valid agreement that allows it to remain there. A problem of this nature is currently brewing between Ukraine and Russia over the port that Russia leases for its Black Sea Fleet of naval ships at Sevastopol. Ukraine says it won’t renew the lease when it expires in 2017, but Russia seems intent on staying, at least until it has an alternative port ready at some later point.
Boundaries are normally fixed when states are created, but states and their populations and economies continue to evolve after that point – and so do their perceived territorial needs. Territorial leasing is a mechanism by which states sometimes address these evolving interests without resorting to formal boundary changes. A lease essentially reallocates sovereign-like rights in