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Points of Confusion over the Cuba Question and Cuba Sovereignty up to May 20, 1902


Historical Background: 

President McKinley was neither bellicose nor pusillanimous. As captain of the Ship of State, he stood on the bridge trying to sail the ship into port through rocks and breakers, with mines and torpedoes on every hand, while some of the crew were shouting and quarrelling and calling the captain names. But he kept the vessel in a safe channel--at the same time trying to induce Spain to clear away obstructions for intercourse, and to preserve order on her ship. Finally, in a peace-loving but not war-fearing message, he proclaimed to the world that he had exhausted every effort to restore peace in Cuba, and that the only remaining remedy was intervention. In his message to Congress on April 11, 1898, he stated this conclusion. He gave the history of the revolutions that had convulsed the island, dwelt upon the horrible character of the war practiced, described the condition of the reconcentrados, and the efforts of the United States to induce Spain to end the contest. He argued that the wreck of the Maine showed the inability of Spain to guarantee security to foreign vessels. Of all the various measures which had been proposed to bring peace in Cuba, he favored intervention in order that a government might be established which could be recognized. He said that forcible annexation could not be thought of, but that intervention, which, in fact, had already commenced by the feeding of the Spanish subjects, was justifiable in the interests of humanity, by the duty which the American Government owed to its citizens, by the necessity of preventing injury to commerce and property, and in order to remove the irritating entanglements that were a constant menace to American peace. The President declared that fires of insurrection could not be extinguished by existing Spanish methods, and that the only hope of pacification lay in the action of the American Government. He asked Congress for authority to end hostilities and to establish a stable government. 

The President's message was considered by the Senate in connection with various resolutions upon the same subject. On April 13, the committee made a lengthy report. The destruction of the Maine was considered as only a single incident in the relations between Spain and the United States during three years of momentous history. It was declared that the Maine was destroyed by the participation or negligence of the Spanish authorities, some of whom had expressed resentment at her presence. Considering all the relations with Spain for three years, it was believed that the United States ought at once to recognize the independence of the people of Cuba, and to intervene to end the war and hasten the establishment of an independent government by the free action of the people. It was stated that recognition alone might have ended the war in the spring of 1896, but that it had now become necessary for the United States to be drawn into the quarrel. Attention was drawn to the fact that the cause of Spain had continually grown weaker, and that of the insurgents stronger. Eight-ninths of the population was said to favor the insurgents, and assurance had been given that the native Cubans were better able than the Spaniards to administer the government. The Spanish Government had violated the laws of civilized warfare and depleted its treasure in a desultory struggle which had recently deteriorated into an apparent policy of depopulating the island in order to repeople it with the natives of Spain. The report of the committee said: "We cannot consent upon any conditions that the depopulated portions of Cuba shall be recolonized by Spain any more than she should be allowed to found a new colony in any part of this hemisphere or island thereof. Either act is regarded by the United States as dangerous to our peace and safety." By recognizing the independence of Cuba the report said that the United States would be entitled to insist that war should be conducted by humane laws instead of by the Spanish domestic code against riots, and that the American Government would no longer be compelled to aid Spain by the energetic execution of the neutrality laws. It had already cost the United States $2,000,000 to police the seas in favor of Spain. Intervention was favored on grounds of necessity and policy as advocated by the Monroe Doctrine, rather than by international law. It was justified by the interests of peace and humanity. Spain had been warned that American forbearance might cease, and that intervention might become necessary in case the new plan of autonomy should prove illusory. That the time for interposition was now at hand was justified by the following reasons: (1) The Cuban situation had become a menace to the world and especially to the peace of the United States. (2) The danger that conditions might make European intervention possible. (3) Relations with Spain were daily more irritating. (4) Spain had failed to fulfil treaty obligations. (5) The Spanish barbaric military operations, the extermination of non-combatants and the destruction of American property and commerce had become intolerable. 

In a resolution declaring that the people of Cuba were and of a right ought to be free and independent, Congress proposed that the United States demand Spain to relinquish her authority and withdraw her forces from Cuban waters. The President was empowered and directed to use American forces to carry this resolution into effect. As to the future American policy in Cuba the resolution declared: "That the United States hereby disclaims any disposition or intention to exercise sovereignty, jurisdiction, or control over said island, except for the pacification thereof, and asserts its determination when that is accomplished to leave the government and control of the island to its people." The above resolution was agreed to on April 19, and approved by the President the next day. 

The emphatic proceedings in Congress indicated that we were no longer drifting towards war -- we were rushing towards it under a full head of steam. There was practical unanimity in the American halls of legislation, and the wheels of law-making turned unchecked. Unless the proud and brave Spaniards should surrender at the first summons without firing a shot, interference in Cuba would be construed by the Spanish Government as war. 

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On May 24, 1898, the battleship Oregon, after a journey of 13,000 miles, arrived from San Francisco and joined the American squadron. After Hobson's daring attempt to "cork" the narrow mouth of the bottle-shaped Santiago harbor, and Sampson's bombardment of the Spanish shore batteries, the invasion of Cuba was finally begun by the landing of 600 marines at Guantanamo, where the enemy's forts were silenced. On June 22, General Shafter's army landed at Baiquiri, a few miles west of Santiago harbor, and from that point, inspired by the advance of the "Rough Riders," went on toward Santiago as fast as it could enquire the way. 

On June 27, President McKinley increased the extent of the Cuban blockade and also applied it to San Juan, Porto Rico. It was also announced that Commodore Watson would be sent with a squadron against the coast of Spain. On July 1, the general assault on Santiago was begun by an all-day battle, in which the Americans secured the Spanish outer lines of defenses. On July 2, the Spanish forces were driven into the city with heavy losses on both sides. On the next day, Sunday, Shafter asked his government for reinforcements, but at the same time demanded the Spanish commander to surrender the city. On July 4, he was re-encouraged by the welcome news that the Spanish fleet had met its fate. On July 3, Admiral Cervera, by order of his Government, had made a dash to escape from Santiago with his four armed cruisers and two torpedo destroyers, but the American ships intercepted him outside of the harbor. Men down in the grimy depths of the ponderous fighting machines, where the temperature was almost unendurable, unmindful of the roar of battle overhead, stood by their post of active duty, and not a Spanish vessel escaped. Eighteen hundred prisoners, including Cervera, were captured while they were leaving their burning and sinking ships. 

The only fleet that Spain now had was at Suez on its way to the Philippines. The Spanish Government, fearing an attack at home by Watson, at once ordered Admiral Camara to return with the Suez fleet. It saw that the end was nigh. General Toral asked General Shafter for three days' grace and for cable operators to notify Madrid of his desire to surrender. All of this was granted. While negotiations were in progress General Miles left Washington to assume command of further operations in Cuba and Porto Rico. On July 13, yellow fever having broken out among the American troops, General Toral was allowed to parley no further in regard to the surrender, and he submitted the next day. Santiago and the country east of a line drawn through Acerraderos, Palma and Sagua, together with the troops and munitions of war in the district, were surrendered, the United States agreeing to transport the troops back to Spain. Santiago was formally surrendered to General Shafter on July 17, and the American flag was hoisted over the palace. 


excerpted from -
 Book Title: Cuba and International Relations: A Historical Study in American Diplomacy.
Author: James Morton Callahan. Publisher: The John Hopkins Press, Baltimore, Maryland, USA. (1899). Pages: 486 to 489, and 491 to 492.
internet URL: available on the www.questia.com research website







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The above excerpt provides a careful overview of the key events leading up to the Spanish American War, as well as the highpoints of the battles fought during the war.  However, after a close examination of numerous historical treatises, encyclopedias, and scholarly journals, the author finds a large number of sources which have misinterpreted the history of Cuba after the surrender of Spanish troops in July 1898 up through the May 1902 period. 

The following statements are typical examples of the errors noted. Corrections are offered for clarification. 


CESSION 

In December of 1898, by the terms of the Treaty of Paris, Spain relinquished control of Cuba to the United States, which promptly instituted a military dictatorship over the island. Cuba finally achieved independence from Spain on May 20, 1902.

Correction: In December of 1898, by the terms of the Treaty of Paris, Cuba was ceded by Spain, with the United States Military Government (USMG) as principal occupying power. The US Senate ratified this treaty in February 1899.  On May 20, 1902, military government was terminated and the United States granted Cuba its independence. 


FLAG
Cuba achieved independence in 1898, but it was not formally implemented until May 20, 1902. On that day the Spanish flag was lowered, and the Cuban flag was raised.

Correction: During the period of United States occupation, both belligerent occupation and friendly occupation, the US flag flew over Cuba. On May 20, 1902, the US flag was lowered, and the Cuban flag was raised.


ALLEGIANCE 
The Cuban people's original allegiance was to Spain. After the surrender of Spanish forces on the island in 1898 and coming into effect of the Treaty of Paris, the Cuban people were left with no government to which to give allegiance. After achieving independence on May 20, 1902, the people naturally gave allegiance to the Republic of Cuba.

Correction: The Cuban people's original allegiance was to Spain. After the surrender of Spanish forces on the island in 1898 and coming into effect of the Treaty of Paris, under the customary law of war doctrine of "temporary allegiance," the Cuban people owed allegiance to the United States of America. After achieving independence on May 20, 1902, the people naturally gave allegiance to the Republic of Cuba.


MILITARY GOVERNMENT
During the 1898 to 1902 period of military occupation of Cuba, the local government would properly be called a United States protectorate administration or a United States military dictatorship.

Correction: During the 1898 to 1902 military occupation, the United States Military Government (USMG) functioned as the true legal government of Cuba.


INTERIM STATUS
After the surrender of Spanish troops and coming into effect of the Treaty of Paris, the Spanish governing authorities left, and the government of the Republic of Cuba had not yet been formed. Hence, the island was in an undecided condition of pre-independence status. During this period, Cuba belonged to no one.

Correction: After the surrender of Spanish troops and coming into effect of the Treaty of Paris, the Spanish governing authorities left, and the government of the Republic of Cuba had not yet been formed. Hence, the island was in "interim status" under the civil affairs administration of a military government. During this period, Cuba was unincorporated territory of USMG. 


US CONSTITUTION
After the coming into effect of the Treaty of Paris, Cuba was separate from the USA, and of course its people were not entitled to enjoy any rights under the US Constitution.

Correction: As unincorporated territory of USMG, Cuba qualified as an insular area of the USA. The people of Cuba were of course entitled to enjoy "fundamental rights" under the US Constitution.


ANNEXATION  
Before the Spanish American War, there was much popular sentiment in the United States that the Spanish government was mistreating the people of Cuba, and that the island should be annexed to the United States, ideally becoming a new state. 

Correction: By its words and actions, the United States denied any intention to annex Cuba. The Teller Amendment (by Henry M. Teller, Senator of Colorado) passed in the U.S. Senate without opposition on April 20, 1898. It stated in part: 

United States hereby disclaims any disposition or intention to exercise sovereignty, jurisdiction, or control over said Island except for the pacification thereof, and asserts its determination, when that is accomplished, to leave the government and control of the Island to its people.

President McKinley often alluded to duty and destiny, divine and defined, manifest and mandated. "The war with Spain was undertaken," McKinley insisted, "not that the United States should increase its territory, but that oppression at our very doors should be stopped." In his view, "Duty determines destiny. Destiny . . . results from duty performed. . . . Almighty God has his plans and methods for human progress, and not infrequently they are shrouded for the time being in impenetrable mystery." 

excerpted from -
William McKinley, Speeches and Addresses of William McKinley from March 1, 1897 to May 30, 1900. New York, New York (1900), Page 134. 
as quoted in
 Book Title: The War of 1898: The United States and Cuba in History and Historiography.
Author: Louis A. Perez. Publisher: Publisher: University of North Carolina Press, Chapel Hill, North Carolina, USA. (1998). Page 111.
internet URL: available on the www.questia.com research website









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The issues of Flag, Allegiance, and Sovereignty are examined in more detail below. 

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FLAG & ALLEGIANCE (expanded)

 Date  Event  Flag
 (law of war specification)
 Flag
 (actual implementation)
 Allegiance of local populace, (correct interpretation)
@July 17, 1898  Surrender of Spanish military forces US flag should be raised
(see Note 1)
 US flag raised

comment: correct procedure was followed

 to USA
@February 6, 1899  Ratification of December 10, 1898 Treaty of Paris by US Senate  US flag should be flown
(see Note 2)
 US flag flown 

comment: correct procedure was followed

 to USA
@May 20, 1902  Proclamation of the end of United States Military Government  Republic of Cuba flag should be raised and flown
(see Note 3)
 Republic of Cuba flag raised and flown 

comment: correct procedure was followed

 to Republic of Cuba

The following notes are based on precedent established in the law of nations.

Note 1: The national flag of the Supreme Commander of the victorious military forces should be raised.
Note 2: For a limbo cession, the national flag of the principal occupying power should be flown.
Note 3: The flag of the new government should be raised and flown.  

SOVEREIGNTY
In discussing sovereignty issues in general, the law of nations specifies that "military occupation does not transfer sovereignty." In discussing the sovereignty of Cuba from 1898 to 1902 in particular, three scenarios are possible.

Scenario 1: The sovereignty of Cuba dried up, disappeared, or was lost.
Scenario 2: The sovereignty of Cuba was held by the United States.
Scenario 3: The sovereignty of Cuba was held by the Cuban people.

An analysis of each of these scenarios is presented below.
Scenario 1 analysis: Sovereignty contains components of "defined territory" and "permanent population." Since Cuba's defined territory and permanent population were still in place during this period, it is impossible to see how the sovereignty could dry up, disappear, or be lost.

Scenario 2 analysis: This conforms to the stipulations in Article 1 of the Treaty of Paris (1898), which state: 
Spain relinquishes all claim of sovereignty over and title to Cuba. And as the island is, upon its evacuation by Spain, to be occupied by the United States, the United States will, so long as such occupation shall last, assume and discharge the obligations that may under international law result from the fact of its occupation, for the protection of life and property.
Scenario 3 analysis: This appears to violate the stipulations in Article 1 of the Treaty of Paris (1898). According to that treaty, the United States is exercising the sovereignty of Cuba during this period. The Cuban people are not exercising it.

The following sources also support the contention that Scenario 2 is the best analysis --

The position of the United States military authorities in Cuba, before the Spanish authorities abandoned the island in 1899, was one of military occupation, pure and simple; after that event, it was military occupation of a particular kind -- namely, wherein the dominant military power exercised authority over the island as trustee for a Cuban nation not yet in existence, but the creation of which was promised and which was to have the assistance of the United States in establishing itself.

excerpted from -
Book Title: Military Government and Martial Law. Third Edition, Revised.
Author: William E. Birkhimer. Publisher: Franklin Hudson Publishing Co., Kansas City, Missouri, USA. (1914). Chapter VI: Effect of Occupation on Local Administration. Page: 44.
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In one of the opinions just delivered the case of Neely v. Henkel, 180 U.S. 119 , ante, 302, 21 Sup. Ct. Rep. 302, is cited in support of the proposition that the provision of the Foraker act here involved was consistent with the Constitution. If the contrary had not been asserted I should have said that the judgment in that case did not have the slightest bearing on the question before us. The only inquiry there was whether Cuba was a foreign country or territory within the meaning, not of the tariff act, but of the act of June 6th, 1900 (31 Stat. at L. 656, chap. 793). We held that it was a foreign country. We could not have held otherwise, because the United States, when recognizing the existence of war between this country and Spain, disclaimed 'any disposition or intention to exercise sovereignty, jurisdiction, or control over said island except for the pacification thereof,' and asserted 'its determination, when that is accomplished, to leave the government and control of the island to its people.' We said: 'While by the act of April 25th, 1898, declaring war between this country and Spain, the President was directed and empowered to use our entire land and naval forces, as well as the militia of the several states, to such extent as was necessary to carry such act into effect, that authorization was not for the purpose of making Cuba an integral part of the United States, but only for the purpose of compelling the relinquishment by Spain of its authority and government in that island and the withdrawal of its forces from Cuba and Cuban waters.

The legislative and executive branches of the government, by the joint resolution of April 20th, 1898, expressly disclaimed any purpose to exercise sovereignty jurisdiction [182 U.S. 244, 388] , or control over Cuba 'except for the pacification thereof,' and asserted the determination of the United States, that object being accomplished, to leave the government and control of Cuba to its own people. All that has been done in relation to Cuba has had that end in view, and, so far as the court is informed by the public history of the relations of this country with that island, nothing has been done inconsistent with the declared object of the war with Spain. Cuba is none the less foreign territory, within the meaning of the act of Congress, because it is under a military governor appointed by and representing the President in the work of assisting the inhabitants of that island to establish a government of their own, under which, as a free and independent people, they may control their own affairs without interference by other nations. The occupancy of the island by troops of the United States was the necessary result of the war. That result could not have been avoided by the United States consistently with the principles of international law or with its obligations to the people of Cuba. It is true that as between Spain and the United States, -- indeed, as between the United States and all foreign nations, -- Cuba, upon the cessation of hostilities with Spain and after the Treaty of Paris, was to be treated as if it were conquered territory. But as between the United States and Cuba, that island is territory held in trust for the inhabitants of Cuba to whom it rightfully belongs, and to whose exclusive control it will be surrendered when a stable government shall have been established by their voluntary action.'


excerpted from -
 Downes v. Bidwell, US Supreme Court (1901) 
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In Neeley v. Henkel ( 180 U. S. 109), with reference to the status of Cuba during American occupation, the Supreme Court said: " Cuba is none the less foreign territory, within the meaning of the act of Congress, because it is under a military governor appointed by and representing the President in the work of assisting the inhabitants of that island to establish a government of their own, under which, as a free and independent people, they may control their own affairs without interference by other nations. The occupancy of the island by the troops of the United States was the necessary result of the war. That result could not have been avoided by the United States consistently with the principles of international law or with its obligations to the people of Cuba." 

"It is true that as between Spain and the United States -- indeed, as between the United States and all foreign nation -- Cuba, upon the cessation of hostilities with Spain and after the Treaty of Paris, was to be treated as if it were conquered territory. But as between the United States and Cuba that island is territory held in trust for the inhabitants of Cuba, to whom it rightfully belongs, and to whose exclusive control it will be surrendered when a stable government shall have been established by their voluntary action." 

In Dooley v. United States ( 182 U. S. 222), one of the "Insular Cases" decided in 1901, the doctrine of Fleming v. Page was applied in fixing the status of Porto Rico while under the military government of the United States, but prior to the ratification of the treaty of peace ceding the island to the United States. The court said: "[During this period] the United States and Porto Rico were still foreign countries with respect to each other, and the same right which authorized us to exact duties upon merchandise imported from Porto Rico to the United State. authorized the military commander in Porto Rico to exact duties upon goods imported into that island from the United States. The fact that, notwithstanding the military occupation of the United States, Porto Rico remained a foreign country within the revenue laws, is established by the case of Fleming v. Page." 

excerpted from -
 Book Title: The Fundamental Concepts of Public Law.
Author: Westel W. Willoughby. Publisher: Macmillan Company, New York, New York USA. (1924). Page: 368.
internet URL: available on the www.questia.com research website










CONCLUSION: 


During the 1898 to 1899 period of belligerent occupation, and during the 1899 to 1902 period of friendly occupation, the sovereignty of Cuba was held in trust by the United States Military Government (USMG).
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