In 2012, brothers Gorav Kalyan and Professor Rohan Kalyan, Ph.D., of Nonetheless Productions produced an award winning short film on the United States illegal overthrow of the government of the Hawaiian Kingdom in 1893 and the subsequent U.S. illegal and prolonged occupation since the 1898 Spanish-American War. Filmed entirely on the campus of the University of Hawai‘i at Manoa, the film interviews academics on their research of the Hawaiian Kingdom.
Nonetheless Productions has authorized the posting of the film. Dr. Kaylan is an Assistant Professor in International and Global Studies at Sewanee: University of the South in Tennessee. Nonetheless Productions is currently working on expanding the short film into a full documentary. For more information on their project contact Dr. Kaylan at rohan.kalyan
***UPDATE. Willy Kauai successfully defended his dissertation. He will be graduating in May 2014 with a Ph.D. in political science. His committee members were comprised of Professor Neal Milner, Chair, Professor Debora Halbert, Professor Charles Lawrence III, Dr. Keanu Sai, Professor Melody Kapilialoha MacKenzie, and Professor Puakea Nogelmeier.
On the same day the Hawaiian Kingdom’s Envoy was meeting with the Swiss Federal Department of Foreign Affairs’ Directorate of International Law in Bern, Switzerland, on March 26, 2014, Dr. Keanu Sai was in a meeting with Dr. Stuart Casey-Maslen, head of research for the Geneva Academy of International Humanitarian Law in Geneva. The University of Lausanne, the International Committee of the Red Cross, the United Nations High Commissioner for Human Rights and the Swiss Federal Department for Foreign Affairs assists the Academy. The Academy is considering listing Hawai‘i as an occupied State.
At the meeting, Dr. Sai presented a power point presentation on the history of the Hawaiian Kingdom and how it came under an illegal and prolonged occupation. Dr. Maslen was also provided with information and evidence of the occupation. Dr. Maslen assured Dr. Sai that a decision will be made and if it has been determined that Hawai‘i is occupied according to the Academy’s criteria it will be listed on its website Rule of Law of Armed Conflict in June. The website provides monthly updates on armed conflicts and occupation and is currently under construction, but will be completed by June.
Dr. Maslen is the editor of The War Report, which is a project of the Academy that identifies and briefly discusses armed conflicts according to the criteria established under international law. The War Report is a comprehensive global analysis of armed conflicts under international law, which includes military occupations. According to the Academy, “The purpose of The War Report is to collect information in the public domain and provide legal analysis for governments, policy makers, the United Nations, academics, NGOs, and journalists.”
“The classification of an armed conflict under international law is an objective legal test and not a decision left to national governments or any international body, not even the UN Security Council,” says Andrew Clapham, Director of the Academy and Graduate Institute Professor in International Law. “It is not always clear when a situation is an armed conflict, and hence when war crimes can be punished,” added Professor Clapham. “The War Report aims to change this and bring greater accountability for criminal acts perpetuated in armed conflicts.”
The Academy’s listing of the Hawaiian Kingdom as an occupied State will promote accountability for individuals who have committed war crimes in the Hawaiian Islands where prosecution can take place before the International Criminal Court and as well as by countries that have universal jurisdiction such as the Philippines and Germany.
Due to the war crimes that continue to be committed with impunity by the State of Hawai‘i, an illegal regime, against innocent civilians, the acting government of the Hawaiian Kingdom has temporarily refrained from pursuing its proceedings at the International Court of Justice and has decided to focus its attention to secure a Protecting Power pursuant to the Fourth Geneva Convention (GCIV) and the Additional Protocol I (API). A Protecting Power is a State that ensures compliance of the Hawaiian Kingdom and the United States to the provisions of the GCIV and API, with particular focus on the protection of civilians.
As a State Party to the GCIV and AP, article 5(1) of the API, states, “It is the duty of the Parties to a conflict from the beginning of that conflict to secure the supervision and implementation of the Conventions and of this Protocol by the application of the system of Protecting Powers, including inter alia the designation and acceptance of those Powers, in accordance with the following paragraphs.” And according to article 5(3) of the API, if a Protecting Power has not been designated, “the International Committee of the Red Cross…shall offer its good offices to the Parties to the conflict with a view to the designation without delay of a Protecting Power to which the Parties to the conflict consent.”
On December 18, 2013, at its headquarters in Geneva, Switzerland, the International Committee of the Red Cross (ICRC) was formally requested to assist the Hawaiian Kingdom in securing a Protecting Power in accordance with the GCIV and API. In this pursuit, the acting government has been in the process of securing a meeting with the Swiss government in order to formally request that it be a Protecting Power and to work with the ICRC. The Swiss government has a long history of serving as a mediator to international conflicts and did serve as a protecting power in the past. A meeting was secured on March 26, 2014, and the Swiss Federal Department of Foreign Affairs’ Directorate of International Law in Bern, Switzerland, received the acting government’s Envoy Extraordinary and Minister Plenipotentiary. Negotiations to secure Switzerland as a Protecting Power for the illegal and prolonged occupation of the Hawaiian Kingdom have begun.
According to international law, the United States Federal government and the United States’ State of Hawai‘i government operating within the territory of the Hawaiian Kingdom are illegal regimes. Article 43 of the Hague Convention, IV, mandates that the occupying State, the United States, to administer the laws of the occupied State, the Hawaiian Kingdom. According to Professor Marco Sassoli, Article 43 of the Hague Regulations and Peace Operations in the Twenty-first Century, p. 5, “Article 43 does not confer on the occupying power any sovereignty over the occupied territory. The occupant may therefore not extend its own legislation over the occupied territory nor act as a sovereign legislator. It must, as a matter of principle, respect the laws in force in the occupied territory at the beginning of the occupation.”
These illegal regimes are and have been administering United States law and not Hawaiian law in an attempt to conceal the prolonged and illegal occupation of the Hawaiian Kingdom. According to Dr. Yaël Ronen, Status of Settlers Implanted by Illegal Regimes under International Law (2008), p. 2, “Illegal regimes often transfer of their own populations or populations loyal to them in the territory, and subsequently grant these populations residence or nationality in the territory. This is done in order to change the demographic composition of the territory under dispute and thereby solidify the regime.”
When another country’s government is operating within the territory of another country without title or sovereignty, every official action taken by that regime is illegal and void except for its registration of births, marriages and deaths. This is called the “Namibia exception,” which is a decision by the International Court of Justice (ICJ) in 1971 called the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970).
In 1966, the United Nations General Assembly passed resolution 2145 (XXI) that terminated South Africa’s administration of Namibia, formerly known as South West Africa, a former German colony. This resulted in Namibia coming under the administration of the United Nations, but South Africa refused to withdraw from Namibian territory and consequently the situation transformed into an illegal occupation. As a former German colony, Namibia became a mandate territory under the administration of South Africa after the close of the First World War.
Addressing the legal consequences arising for South Africa’s refusal to leave Namibia, the ICJ stated that by “occupying the Territory without title, South Africa incurs international responsibilities arising from a continuing violation of an international obligation,” and that all countries, whether a member of the United Nations or not were “under an obligation to recognize the illegality and invalidity of South Africa’s continued presence in Namibia and to refrain from lending any support or any form of assistance to South Africa with reference to its occupation of Namibia.” The ICJ, however, clarified that “non-recognition should not result in depriving the people of Namibia of any advantages derived from international cooperation.
The conduct of an illegal regime during occupation is limited and confined to the international laws of occupation and to the principle of ex injuria ius non oritur—where unlawful acts cannot be the source of lawful rights. According to Ronen, p. 39, “Opposite the principle of ex injuria jus non oritur operates the principle ex factis ius oritur. It mandates that acts of the illegal regime may have legal consequences despite the illegality and status of the regime that performed them.” Ronen explains, “In other words, the general invalidity of domestic acts carried out under an illegal regime is qualified where such invalidity would act to the detriment of the inhabitants of the territory. This is the Namibia exception.” The ICJ in the Namibia case explained, “the principle ex injuria jus non oritur dictates that acts which are contrary to international law cannot become a source of legal acts for the wrongdoer… To grant recognition to illegal acts or situation will tend to perpetuate it and be benefitial to the state which has acted illegally.”
The focus of the Namibia exception is to protect the interests of the nationals of the occupied State and not to entrench the authority of an illegal regime. The validity of any other official acts of an illegal regime other than the registration of births, marriages and deaths must not serve “to the detriment of the inhabitants of the territory” being occupied and must not be seen to further “entrench the authority of an illegal regime.”
On November 8, 1999, international arbitration proceedings were initiated at the Permanent Court of Arbitration (PCA), The Hague, Netherlands, between Lance Paul Larsen and the acting Government of the Hawaiian Kingdom (Larsen v. Hawaiian Kingdom). The arbitration agreement provided, “The Arbitral Tribunal is asked to determine, on the basis of the Hague Conventions IV and V of 18 October 1907, and the rules and principles of international law, whether the rights of the Claimant under international law as a Hawaiian subject are being violated, and if so, does he have any redress against the Respondent Government of the Hawaiian Kingdom?”
Larsen was arrested on October 4, 1999, in Hilo, Hawai‘i, and imprisoned for 30 days, seven of which were in solitary confinement, for following Hawaiian Kingdom law. Larsen, as the Claimant, alleged that the acting government, the Respondent, was legally liable to him for allowing the unlawful imposition of American municipal laws over him within the territorial jurisdiction of the Hawaiian Kingdom. In the pleading, Larsen’s attorney, Ms. Ninia Parks, esq., based her case on the following grounds:
- Mr. Larsen is a Hawaiian subject, with a Hawaiian nationality.
- As a Hawaiian subject, Mr. Larsen is bound by Hawaiian Kingdom law. He is not bound by the laws of the State of Hawaii nor by the laws of the United States of America.
- Mr. Larsen’s rights as a Hawaiian subject have been systematically and continuously denied by the United States of America, the occupying force in the prolonged occupation of the Hawaiian islands by the United States of America. At a minimum, the United States of America has continually denied Mr. Larsen’s nationality as a Hawaiian subject, has illegally imposed American laws over his person, has extorted monetary fines from Mr. Larsen under threat of imprisonment, and has imprisoned Mr. Larsen for asserting his lawful rights as a Hawaiian national.
- The government of the Hawaiian Kingdom has a duty to protect the rights of Mr. Larsen, a Hawaiian subject, despite the continued occupation of the Hawaiian Islands by the United States of America.
- The government of the Hawaiian Kingdom, through its acting Regency, has not fulfilled this duty.
In its pleading, the acting Government, represented by Dr. Keanu Sai as lead agent, denied the allegations and submitted “that the Claimant’s rights under international law are being violated, but to what extent, is left to the Arbitral Tribunal to decide. That this decision must be made within fixed and established principles and laws pertaining to the matter, and that the Hawaiian Kingdom Government is not liable for redress of these violations under its present conditions as an occupied State.”
In the American Journal of International Law, vol. 95, p. 928 (2001), and reprinted in the Hawaiian Journal of Law and Politics, vol. 1, p. 83 (2004), Bederman and Hilbert, state that at “the center of the PCA proceeding was…that the Hawaiian Kingdom continues to exist and that the Hawaiian Council of Regency (representing the Hawaiian Kingdom) is legally responsible under international law for the protection of Hawaiian subjects, including the claimant. In other words, the Hawaiian Kingdom was legally obligated to protect Larsen from the United States’ ‘unlawful imposition [over him] of [its] municipal laws’ through its political subdivision, the State of Hawai‘i. As a result of this responsibility, Larsen submitted, the Hawaiian Council of Regency should be liable for any international law violations that the United States committed against him.”
In February 2000, the PCA’s Secretary General Tjaco T. van den Hout recommended that the acting Government provide a formal invitation to the United States to join in the arbitration. In order to carry out this request by the Secretary General, Dr. Sai was sent to Washington, D.C. Ms. Ninia Parks, attorney for the Claimant Lance Larsen, accompanied Dr. Sai.
On March 3, 2000, a telephone meeting with John R. Crook, Assistant Legal Adviser for United Nations Affairs section of the US Department of State, was held. It was stated to Mr. Crook that the “visit was to provide these documents to the Legal Department of the U.S. Department of State in order for the U.S. Government to be apprised of the arbitral proceedings already in train and that the Hawaiian Kingdom, by consent of the Claimant, extends an opportunity for the United States to join in the arbitration as a party.”
Mr. Crook was made fully aware of the United States occupation of the Hawaiian Kingdom and the establishment of the acting Government. This direct challenge to US sovereignty over the Hawaiian Islands should have prompted the United States to protest the action taken by the Permanent Court of Arbitration in accepting the Hawaiian arbitration case and call upon the Secretary General to cease and desist because this action constitutes a violation of US sovereignty. The United States did neither. Instead, Deputy Secretary General Phyllis Hamilton notified the acting Government that the United States notified the Court that it will not join in the arbitration, but did request from the acting government permission to access all pleadings and transcripts of the case. Both the acting government and Larsen’s attorney consented. By this action, the United States directly acknowledged the circumstances of the proceedings and the acting government’s representation of the Hawaiian Kingdom before an international tribunal.
Three distinguished jurists presided on the Arbitration Tribunal. Professor James Crawford, SC, served as Presiding arbitrator. Professor Crawford is a professor of international law at the University of Cambridge. At the time of the arbitration, Crawford was also a member of the United Nations International Law Commission (ILC) and was responsible for the ILC’s work on the International Criminal Court (1994) and the Articles on State Responsibility (2001).
Judge Sir Christopher Greenwood, QC, served as Associate arbitrator. Greenwood was at the time professor of international law at the London School of Economics and Political Science and legal counsel to the United Nations on the Laws of War and Occupation. In 2008, the United Nations elected Greenwood to be judge on the International Court of Justice.
Dr. Gavan Griffith, QC, served as Associate Arbitrator. Griffith was former Solicitor General for Australia and also served as counsel and agent for Australia in Nauru v. Australia before the International Court of Justice.
Three days of oral hearings were set for December 7, 8 and 11, 2000 at the PCA. At the center of these proceedings was whether or not Larsen was able to maintain his suit against the acting Government for not protecting him without the participation of the United States who would need to answer to the alleged violations committed by them against Larsen. Larsen was attempting to hold the acting Government responsible for his injuries committed by the United States. In international law, this is a situation called the “necessary and indispensable party” rule and it was the basis of decisions made by the International Court of Justice in Monetary Gold case (Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America), the Nauru case (Nauru v. Australia), and the East Timor case (Portugal v. Australia).
In the 2001 Arbitral Award, the Tribunal explained, that it “cannot determine whether the Respondent [the acting government] has failed to discharge its obligations towards the Claimant [Larsen] without ruling on the legality of the acts of the United States of America. Yet that is precisely what the Monetary Gold principle precludes the Tribunal from doing. As the International Court explained in the East Timor case, ‘the Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case.’”
The Tribunal, however, did acknowledge the Hawaiian Kingdom to be an independent State. In its decision, the Tribunal concluded in the Award, “that in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties.” International law provides for the continuity of the Hawaiian Kingdom since the nineteenth century to the present, which was the basis for the arbitration case in the first place.
On March 6, 2014, KITV News aired a story where ‘Iolani School students reenacted a historical trial of Lorrin Thurston, who was the lead insurgent when the United States illegally overthrew the Hawaiian Kingdom government in 1893, was put on trial for treason. Thurston was a Hawaiian subject and an attorney in the Hawaiian Kingdom. He was the leader of the insurgency that got the U.S. Ambassador John Stevens to land U.S. troops to protect them from arrest by the Hawaiian authorities in order to declare themselves and new government. U.S. Special Commissioner James Blount who was appointed by President Grover Cleveland to investigate whether or not U.S. troops were involved, concluded, “in pursuance of a prearranged plan, the Government thus established hastened off commissioners to Washington to make a treaty for the purpose of annexing the Hawaiian Islands to the United States.”
To view the KITV news coverage of the historical trial go to this link.
‘Iolani School is a private school that was established in 1863 by Father William R. Scott of the Anglican faith. The former name of the school was Lua‘ehu, but it was renamed ‘Iolani in 1870 by the former Queen Emma when it moved from the city of Lahaina to Honolulu. The school’s patron saints are King Kamehameha IV and Queen Emma.
Here is the transcript of KITV’s coverage.
HONOLULU —The ‘Iolani palace throne room, the very room where former Queen Lili’uokalani was put on trial for treason, was turned into a court room Thursday.
At first glance you feel like you have been transported back in time to the trial of Lili’uokalani. The palace throne room was set up for the case, but well over a century later comes a twist; Iolani School history students are putting Lorrin Thurston on trial.
Thurston played a prominent role in the overthrow of the Hawaiian monarch; the witnesses historical figures of that time.
“How do you feel about Lorrin Thurston and his overthrow of Hawaii? I believe he’s guilty. He led the overthrow. He acted on his own accord. He started the Committee of Safety and he also wrongfully used the U.S. Navy as intimidation during the coup,” said Senator James Blount, author of the Blount Report. “You did not take the opinion of the coup? I didn’t have them for my report. I envied the local population. Why? Cause they would have been biased.”
Taking their assignment seriously most dressed the part and sounded the part too.
“The Angle Franco Treaty…I agreed to recognize the Hawaiian Kingdom as a sovereign,” said Queen Victoria, a friend of Queen Lili’uokalani.
“I didn’t betray her. I did what I thought would be best for the people,” said Sanford Dole, President of the Republic of Hawaii.
“Did the annexation of Hawaii benefit the landowner more or was it made for the people — the Native Hawaiians? It was for everyone living in Hawaii,” said Max Webber, an Iolani School 12th grader playing Thurston.
After a brief deliberation, the jury decides.
“Your honor, we the jury find Lorrin Thurston guilty of the illegal overthrow of the Hawaiian Kingdom,” said a student cast in the jury.
A sigh came from Weber, who played Thurston and dove right into the project.
“I read there all these books about him and he had a book he wrote about himself. So, I went through and read a lot of that and I also ideas of what he was thinking during that time,” said Weber.
“‘Iolani Palace is taking a new initiative to focus more on education and going outside of the four walls of the classrooms is so much more effective,” said ‘Iolani Palace Executive Director Kippen de alba Chu
Iolani School history teacher Melanie Pfingstem, who played the judge, agrees.
“Well I just think that simulations are really a great way for kids to internalize history,” said Pfingstem.
“This whole experience has really given us the details and the exact circumstances around the overthrow and the part each player played. That was really eye opening to how Hawaii became what it is today,” Michelle Kimura, an Iolani School 10th grader who portrayed Lili’uokalani.
Putting aside the violence that has caused injuries and death in Ukraine on both the government and protesters side, what does the law say regarding the removal of Ukraine’s President Victor Yanukovych by vote of the Ukrainian Parliament (Rada). In The Daily Beast article “How Ukraine’s Parliament Brought Down Yanukovych,” there was no mention of Ukrainian law, except for legislation passed by the Rada. The Daily Beast reported, “after Yanukovych refused to leave office, the Ukrainian parliament by an overwhelming majority voted to remove him from the post as the one who ‘has dissociated himself’ by fleeing the capital. The ballot was passed with a constitutional majority and entered into force immediately.”
President Obama calls the new government legitimate, but President Putin calls it illegitimate. According to Article 108 of the Ukrainian Constitution, “The authority of the President of Ukraine shall be subject to an early termination in cases of: (1) resignation; (2) inability to exercise presidential authority for health reasons; (3) removal from office by the procedure of impeachment; (4) his/her death.” Since Yanukovych didn’t resign and he had no health issues, the only way to remove him would be “by the procedure of impeachment.” The quintessential question is whether a vote of removal by the Rada constituted impeachment. If it was then Yanukovych is no longer President, but if not then the Rada vote was unconstitutional and Yanukovych is still President even while he is in Russia.
By definition, impeachment is not removal, but rather a process initiated by a legislative body in order to remove a President. Impeachment is similar to an indictment, which precedes a trial. Under the United States Constitution this two-step process begins when the House of Representatives votes for articles of impeachment by a majority of those Representatives present, which provides the allegations of “treason, bribery, or other high crimes and misdemeanors.” If the articles of impeachment pass, the President is considered impeached. What follows is for the Senate to hold a trial, which is presided over by the Chief Justice of the U.S. Supreme Court. In 1999, President Bill Clinton was impeached, but was found not guilty in the Senate trial.
The Ukrainian Constitution provides for the process of impeaching its President.
“Article 111. The President of Ukraine may be removed from the office by the Verkhovna Rada of Ukraine in compliance with a procedure of impeachment if he commits treason or other crime.
The issue of the removal of the President of Ukraine from the office in compliance with a procedure of impeachment shall be initiated by the majority of the constitutional membership of the Verkhovna Rada of Ukraine.
The Verkhovna Rada of Ukraine shall establish a special ad hoc investigating commission, composed of special prosecutor and special investigators to conduct an investigation.
The conclusions and proposals of the ad hoc investigating commission shall be considered at the meeting of the Verkhovna Rada of Ukraine.
On the ground of evidence, the Verkhovna Rada of Ukraine shall, by at least two-thirds of its constitutional membership, adopt a decision to bring charges against the President of Ukraine.
The decision on the removal of the President of Ukraine from the office in compliance with the procedure of impeachment shall be adopted by the Verkhovna Rada of Ukraine by at least three-quarters of its constitutional membership upon a review of the case by the Constitutional Court of Ukraine, and receipt of its opinion on the observance of the constitutional procedure of investigation and consideration of the case of impeachment, and upon a receipt of the opinion of the Supreme Court of Ukraine to the effect that the acts, of which the President of Ukraine is accused, contain elements of treason or other crime.”
The Rada’s vote to remove President Yanukovych does not appear to be following this constitutional process and it can be argued that Yanukovych’s removal was unconstitutional, which is what Russia has been stating. Russia also has stated that Yanukovych’s removal was supported by the United States, especially after a phone conversation between assistant U.S. Secretary of State Victoria Nuland and U.S. Ambassador to Ukraine, Geoffrey Pyatt, was leaked to the media. On February 7, 2014, The Guardian reported on the phone conversation and played the audio.
With the world’s focus on whether Yanukovych is still President according to Ukrainian law and not international law, there is a question of Presidential legitimacy the world may not know, which is the legitimacy of United States President Barrack Obama under United States law. Article II of the United States Constitution provides, “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.” The term natural born (jus soli) is a person who acquires United States citizenship through birth on United States territory. This is different from U.S. citizenship acquired through naturalization, which has a residency requirement, and U.S. citizenship acquired through parentage (jus sanguinis) when born outside of the United States.
The leading case in the United States on the definition of “natural-born” is the 1898 U.S. Supreme Court’s decision in U.S. v. Wong Kim Ark, 169 U.S. 649. In that case, the Court confirmed that Wong Kim Ark, a child of Chinese nationals born in the city of San Francisco, was a natural-born United States citizen. The Court’s reasoning was that since the term “natural-born” was specifically used in the United States Constitution, which was written in 1787, English common law was to be used in its interpretation of natural-born. The Court explained, “The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.”
The Court further explained, “The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called ‘ligealty,’ ‘obedience,’ ‘faith,’ or ‘power’ of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem – and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.”
Two of the Judges, however, dissented with the judgment on racial grounds, but they also allude to what it meant to children born abroad of U.S. parents. Both judges stated, “Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that ‘natural-born citizen’ applied to everybody born within the geographical tract known as the United States, …while children of our citizens, born abroad, were not.”
Obama was born in the Hawaiian Kingdom and not the United States. He was born in the city of Honolulu on August 4, 1961 at Kapi‘olani Hospital, which was established in 1890 by the Hawaiian Kingdom’s Queen Kapi‘olani.
Since the Hawaiian Kingdom has been under an illegal and prolonged occupation by the United States and its continuity is protected under international law, Obama cannot claim to be a natural-born citizen of the United States and, therefore, cannot meet the constitutional requirement to be a President of the United States. But he is a U.S. citizen through parentage (jus sanguinis) because his mother was a U.S. citizen when she gave birth to Obama in the Hawaiian Kingdom. He cannot, however, claim Hawaiian citizenship by birth because the international law of occupation, which protects and maintains the status quo of the occupied State, only allows Hawaiian citizenship through parentage and not natural-born even though it is a recognized mode of acquiring citizenship under Hawaiian Kingdom law.
Today on CNN’s coverage of the “Crisis in Ukraine” at 3:31pm (Eastern Time), news anchor Brooke Baldwin made a very interesting comment. Baldwin stated, “Ukrainian officials believe 30,000 Russian troops are now there in that small peninsula about the size of Hawai‘i.” This is a very interesting comparison by CNN to make reference to Hawai‘i with the Crimean conflict, especially when it would appear that CNN has no knowledge, or do they, of Hawai‘i’s direct link to Crimea regarding Hawaiian neutrality and the correlation between the argument of Russian intervention and United States intervention in the Hawaiian Kingdom. CNN also reported that Russia warns U.S. that threatened sanctions will “boomerang.”
What is at the center of the Ukrainian crisis is “intervention,” and whether or not international law has been violated. The United States says yes, but Russia says no. The international law on intervention is clearly prohibitive, but there are exceptions according to Oppenheim, International Law, vol. 1, (7th ed. 1948), p. 274. The two exceptions that appear to be in line with the Crimean conflict are, first, where restrictions on a treaty are not being complied with, and, second, the rights of citizens of the intervening State are being threatened.
The treaty that the United States consistently makes reference to as to why Russian actions in the Crimea is a violation of international law is the 1997 Friendship Treaty between Ukraine and Russia. At the ceremonies in Kiev, Russian President Boris Yeltsin, declared, “We respect and honor the territorial integrity of Ukraine.” A State’s territorial integrity, however, is protected by international law and not just by a treaty. International law provides that “the territorial integrity and political independence of the State are inviolable.” This treaty does not appear to be President Vladimir Putin’s justification for Russian action in the Crimea. Instead, Putin appears to refer to the treaty that centers on the Russian Naval Base at Sevastopol.
In the aftermath of the breakup of the Soviet Union, Russia negotiated the fate of its military bases that were located outside of Russian territory. Russia’s Naval Base at Sevastopol in Crimea dates back to 1783 when the Russian Prince Grigory Potemkin founded the port city. In 1997, Russia and Ukraine signed a Partition Treaty whereby Russia would maintain its naval base after purchasing 81.7% of Ukraine’s naval ships for $526.5 million dollars as reported by RT News. This treaty was ratified in 1999 by both governments. The treaty allows the Russian Black Sea Fleet to remain in Crimea until 2042. Russia claims that the new government in Kiev is not legitimate and its anti-Russian rhetoric a threat to its Naval Base at Sevastopol and the maintenance of the 1997 Partition Treaty. According to international law, this would be a justification for intervention and it would appear that Putin is correct in that Russia is complying with international law.
At this stage, Russia has not deployed its troops into Ukraine even though the Russian Parliament authorized Putin the authority to do so. What has taken place in Crimea is not an invasion, but rather actions taken by Russian troops that were already stationed in Crimea at its Naval Base in Sevastopol. The 1997 Partition Treaty allows for 25,000 Russian troops, 24 artillery systems with a caliber smaller than 100 mm, 132 armored vehicles, and 22 military planes on Crimean territory. It appears that Russia has used its military force in Crimea to ensure that its Naval Base will not be seized. Although, these troops did not have any Russian insignia in order to identify a chain of command, they are Russian citizens who wore military garb. Putin has stated that, “Russian forces in Crimea are only acting to protect Russian military assets. It is ‘citizens’ defense groups,’ not Russian forces, who have seized infrastructure and military facilities in Crimea.” If Putin ordered the Russian Forces in Crimea to seize Ukrainian infrastructure and military facilities, it would be intervention, but by stating they are citizens defense groups, it is a clever way to sidestep intervention. But intervention would be justified if Russia feels that its 1997 Partition Treaty is being threatened, which would allow Russia to preemptively neutralize Ukrainian military posts in Crimea before they can attack the naval base.
Protection of Citizens
As reported by Aljazeera, “Unhappy with the outcome of the protests in the capital and alarmed at the rise of Ukrainian nationalist groups in Kiev, many ethnic Russians in Crimea, who make up almost 60 percent of the population here, have been protesting and calling for Russia to come to their aid—with some even going as far as demanding their neighbor immediately absorb the territory.” International law does not allow for citizens to have the authority to call for intervention, but the intervening State may feel it has a duty to intervene and will unilaterally do so. It is, however, a point of contention as to the extent of the threat to ethnic Russians, or if there is any threat at all to warrant Russian intervention.
What is lacking in the Crimean conflict is an impartial investigation into the crisis where legally relevant facts could be gathered and conclusions made in accordance with international law. For the Hawaiian crisis in 1893, President Benjamin Harrison refused to do an investigation that was called for by Queen Lili‘uokalani, because he was intent on annexing the Hawaiian Kingdom for military purposes. It was his successor in office, Grover Cleveland, that did the investigation in accordance with international law. In his message to Congress, Cleveland stated,
“The law of nations is founded upon reason and justice, and the rules of conduct governing individual relations between citizens or subjects of a civilized state are equally applicable as between enlightened nations. The considerations that international law is without a court for its enforcement, and that obedience to its commands practically depends upon good faith, instead of upon the mandate of a superior tribunal, only give additional sanction to the law itself and brand any deliberate infraction of it not merely as a wrong but as a disgrace. A man of true honor protects the unwritten word which binds his conscience more scrupulously, if possible, than he does the bond a breach of which subjects him to legal liabilities; and the United States in aiming to maintain itself as one of the most enlightened of nations would do its citizens gross injustice if it applied to its international relations any other than a high standard of honor and morality. On that ground the United States can not properly be put in the position of countenancing a wrong after its commission any more than in that of consenting to it in advance. On that ground it can not allow itself to refuse to redress an injury inflicted through an abuse of power by officers clothed with its authority and wearing its uniform; and on the same ground, if a feeble but friendly state is in danger of being robbed of its independence and its sovereignty by a misuse of the name and power of the United States, the United States can not fail to vindicate its honor and its sense of justice by an earnest effort to make all possible reparation.”
“These principles apply to the present case with irresistible force when the special conditions of the Queen’s surrender of her sovereignty are recalled. She surrendered not to the provisional government, but to the United States. She surrendered not absolutely and permanently, but temporarily and conditionally until such time as the facts could be considered by the United States. Furthermore, the provisional government acquiesced in her surrender in that manner and on those terms, not only by tacit consent, but through the positive acts of some members of that government who urged her peaceable submission, not merely to avoid bloodshed, but because she could place implicit reliance upon the justice of the United States, and that the whole subject would be finally considered at Washington.”
According to international law there is a recognized legal maxim, ex injuria jus non oritur, whereby a State cannot claim valid legal results from an illegal act committed against another State. The International Court of Justice, in its Advisory Opinion on Namibia (June 21, 1971), explained, “the principle ex injuria jus non oritur dictates that acts which are contrary to international law cannot become a source of legal acts for the wrongdoer… To grant recognition to illegal acts or situation will tend to perpetuate it and be benefitial to the state which has acted illegally.”
On March 4, 2014, CNN covered a speech by U.S. Secretary of State John Kerry in Kiev, Ukraine. Kerry stated, “They would have you believe that ethnic Russians and Russian bases are threatened. They would have you believe the Kiev was trying to destabilize Crimea or that Russian actions were legal or legitimate because Crimean leaders invited intervention. And as everybody knows the soldiers in Crimea, at the instruction of their government, had stood their ground, had never fired a shot, never issued one provocation.”
Kerry accused Russia of doing exactly what the United States did to the Hawaiian Kingdom in January 1893. Unlike the Crimean dispute, however, the Hawaiian dispute was settled by U.S. President Grover Cleveland after he initiated an investigation into the overthrow of the Hawaiian government at the request of Queen Lili‘uokalani, Hawaiian Head of State, in March 1893. At the center of the investigation were the actions taken by U.S. Minister Plenipotentiary John Stevens and the commander of U.S. troops aboard the U.S.S. Boston anchored in Honolulu Harbor, Captain Gilbert Wiltse. The intervention occurred during President Benjamin Harrison’s administration. The President appointed James Blount as Special Commissioner who submitted reports between April and July 1893 to U.S. Secretary of State Walter Gresham. The investigation was concluded by Gresham on October 18, 1893. President Cleveland notified the Congress of the conclusion of the investigation by presidential message on December 18, 1893, while negotiations were still taking place with the Queen in Honolulu.
The investigation determined that the United States unlawfully intervened in the internal affairs of the Hawaiian Kingdom, and that its diplomat and troops were directly responsible for the illegal overthrow of the Hawaiian government. Gresham recommended to President Cleveland that the Hawaiian government must be restored and compensation must be provided. This prompted executive mediation between President Cleveland and Queen Lili‘uokalani to settle the dispute and by exchange of notes an executive agreement, called the “Agreement of Restoration,” was concluded whereby the President committed to the restoration of the Hawaiian government and the Queen, thereafter, to grant amnesty to the insurgents. The President did not carry out the international agreement because of political wrangling in the Congress, and President Cleveland’s successor, William McKinley, unilaterally seized the Hawaiian Islands during the Spanish-American War on August 12, 1898. Hawai‘i has been under an illegal and prolonged occupation ever since.
Department of State,
Washington, October 18, 1893
The full and impartial reports submitted by the Hon. James H. Blount, your special commissioner to the Hawaiian Islands, established the following facts:
Queen Liliuokalani announced her intention on Saturday, January 14, 1893, to proclaim a new constitution, but the opposition of her ministers and other induced her to speedily change her purpose and make public announcement of that fact.
At a meeting in Honolulu, late on the afternoon of that day, a so-called committee of public safety, consisting of thirteen men, being all or nearly all who were present, was appointed “to consider the situation and devise ways and means for the maintenance of the public peace and the protection of life and property,” and at a meeting of this committee on the 15th, or the forenoon of the 16th of January, it was resolved amongst other things that a provisional government be created “to exist until terms of union with the United States of America have been negotiated and agreed upon.” At a mass meeting which assembled at 2 p.m. on the last named day, the Queen and her supporters were condemned and denounced, and the committee was continued and all its act approved.
Later the same afternoon the committee addressed a letter to John L. Stevens, the American minister at Honolulu, stating that the lives and property of the people were in peril and appealing to him and the United States forces at his command for assistance. This communication concluded “we are unable to protect ourselves without aid, and therefore hope for the protection of the United States forces.” On receipt of this letter Mr. Stevens requested Capt. Wiltse, commander of the U.S.S. Boston, to land a force “for the protection of the United States legation, United States consulate, and to secure the safety of American life and property.” The well armed troops, accompanied by two gatling guns, were promptly landed and marched through the quiet streets of Honolulu to a public hall, previously secured by Mr. Stevens for their accommodation. This hall was just across the street form the government building, and in plain view of the Queen’s palace. The reason for thus locating the military will presently appear. The governor of the Island immediately addressed to Mr. Stevens a communication protesting against the act as an unwarranted invasion of Hawaiian soil and reminding him that the proper authorities had never denied permission to the naval forces of the United States to land for drill or any other proper purpose.
About the same time the Queen’s minister of foreign affairs sent a note to Mr. Stevens asking why the troops had been landed and informing him that the proper authorities were able and willing to afford full protection to the American legation and all American interests in Honolulu. Only evasive replies were sent to these communications.
While there were no manifestations of excitement or alarm in the city, and the people were ignorant of the contemplated movements, the committee entered the Government building, after first ascertaining that it was unguarded, and read a proclamation declaring that the existing Government was overthrown and a Provisional Government established in its place, “to exist until terms of union with the United States of America have been negotiated and agreed upon.” No audience was present when the proclamation was read, but during the reading 40 to 50 men, some of them indifferently armed, entered the room. The executive and advisory councils mentioned in the proclamation at once addressed a communication to Mr. Stevens, informing him that the monarchy had been abrogated and a provisional government established. This communication concluded:
Such Provisional Government has been proclaimed, is now in possession of the Government departmental buildings, the archives, and the treasury, and is in control of the city. We hereby request that you will, on behalf of the United States, recognize it as the existing de facto Government of the Hawaiian Islands and afford to it the moral support of your Government, and, if necessary, the support of American troops to assist in preserving the public peace.
On receipt of this communication, Mr. Stevens immediately recognized the new Government, and, in a letter addressed to Sanford B. Dole, its President, informed him that he had done so. Mr. Dole replied:
Honolulu, January 17, 1893
Sir: I acknowledge receipt of your valued communication of this day, recognizing the Hawaiian Provisional Government, and express deep appreciation of the same.
We have conferred with the ministers of the late Government, and have made demand upon the marshal to surrender the station house. We are not actually yet in possession of the station house, but as night is approaching and our forces may be insufficient to maintain order, we request the immediate support of the United States forces, and would request that the commander of the United States forces take command of our military forces, so that they may act together for the protection of the city.
Sanford B. Dole,
Chaiman Executive Council.
His Excellency John L. Stevens,
United States Minister Resident.
Note of Mr. Stevens at the end of the above communication.
“The above request not complied with.”
The station house was occupied by a well armed force, under the command of a resolute capable, officer. The same afternoon the Queen, her ministers, representatives of the Provisional Government, and other held a conference at the palace. Refusing to recognize the new authority or surrender to it, she was informed that the Provisional Government had the support of the American minister, and, if necessary, would be maintained by the military force of the United States then present; that any demonstration on her part would precipitate a conflict with that force; that she could not, with hope of success, engage in war with the United States, and that resistance would result in a useless sacrifice of life. Mr. Damon, one of the chief leader of the movement, and afterwards vice-president of the Provisional Government, informed the Queen that she could surrender under protest and her case would be considered later at Washington. Believing that, under the circumstances, submission was a duty, and that her case would be fairly considered by the President of the United States, the Queen finally yielded and sent to the Provisional Government the paper, which reads:
“I, Lili‘uokalani, by the grace of God and under the constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the constitutional Government of the Hawaiian Kingdom by certain persons claiming to have established a provisional government of and for this Kingdom.
That I yield to the superior force of the United States of America whose Minister Plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be landed at Honolulu and declared that he would support the provisional government.
Now to avoid any collision of armed forces, and perhaps the loss of life, I do this under protest and impelled by said force yield my authority until such time as the Government of the United States shall, upon facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim as the Constitutional Sovereign of the Hawaiian Islands.”
When this paper was prepared at the conclusion of the conference, and signed by the Queen and her ministers, a number of persons, including one or more representatives of the Provisional Government, who were still present and understood its contents, by their silence, at least, acquiesced in its statements, and, when it was carried to President Dole, he indorsed upon it, “Received from the hands of the late cabinet this 17th day of January, 1893,” without challenging the truth of any of its assertions. Indeed, it was not claimed on the 17th day of January, or for some time thereafter, by any of the designated officers of the Provisional Government or any annexationist that the Queen surrendered otherwise than as stated in her protest.
In his dispatch to Mr. Foster of January 18, describing the so-called revolution, Mr. Stevens says:
The committee of public safety forthwith took possession of the Government building, archives, and treasury, and installed the Provisional Government at the head of the respective departments. This being an accomplished fact, I promptly recognized the Provisional Government as the de facto government of the Hawaiian Islands.
In Secretary Foster’s communication of February 15 to the President, laying before him the treaty of annexation, with the view to obtaining the advice and consent of the Senate thereto, he says:
At the time the Provisional Government took possession of the Government building no troops or officers of the United States were present or took any part whatever in the proceedings. No public recognition was accorded to the Provisional Government by the United States minister until after the Queen’s abdication, and when they were in effective possession of the Government building, the archives, the treasury, the barracks, the police station, and all the potential machinery of the Government.
Similar language is found in an official letter addressed to Secretary Foster on February 3 by the special commissioners sent to Washington by the Provisional Government to negotiate a treaty of annexation.
These statements are utterly at variance with the evidence, documentary and oral, contained in Mr. Blount’s reports. They are contradicted by declarations and letters of President Dole and other annexationists and by Mr. Stevens’s own verbal admissions to Mr. Blount. The Provisional Government was recognized when it had little other than a paper existence, and when the legitimate government was in full possession and control of the palace, the barracks, and the police station. Mr. Stevens’s well known hostility and the threatening presence of the force landed from the Boston was all that could then have excited serious apprehension in the minds of the Queen, her officers, and loyal supporters.
It is fair to say that Secretary Foster’s statements were based upon information which he had received from Mr. Stevens and the special commissioners, but I am unable to see that they were deceived. The troops were landed, not to protect American life and property, but to aid in overthrowing the existing government. Their very presence implied coercive measures against it.
In a statement given to Mr. Blount, by Admiral Skerret, the ranking naval officer at Honolulu, he says:
“If the troops were landed simply to protect American citizens and interests, they were badly stationed in Arion Hall, but if the intention was to aid the Provisional Government they were wisely stationed.”
This hall was so situated that the troops in it easily commanded the Government building, and the proclamation was real under the protection of American guns. At an early stage of the movement, if not at the beginning, Mr. Stevens promised the annexationists that as soon as they obtained possession of the Government building and there read a proclamation of the character above referred to, he would at once recognize them as a de facto government, and support them by landing a force from our war ship then in the harbor, and he kept that promise. This assurance was the inspiration on the movement, and without it the annexationists would not have exposed themselves to the consequences of failure. They relied upon no military force of their own, for they had none worthy of the name. The Provisional Government was established by the action of the American minister and the presence of the troops landed from the Boston, and its continued existence is due to the belief of the Hawaiians that if they made an effort to overthrow it, they would encounter the armed forces of the United States.
The earnest appeals to the American minister for military protection by the officers of that Government, after it had been recognized, show the utter absurdity of the claim that it was established by a successful revolution of the people of the Islands. Those appeals were a confession by the men who made them of their weakness and timidity. Courageous men, conscious of their strength and the justice of their cause, do not thus act. It is not now claimed that a majority of the people, having the right to vote under the constitution of 1887, ever favored the existing authority or annexation to this or any other country. They earnestly desire that the government of their choice shall be restored and its independence respected.
Mr. Blount states that while at Honolulu he did not meet a single annexationist who expressed willingness to submit the question to a vote of the people, nor did he talk with one on that subject who did not insist that if the Islands were annexed suffrage should be so restricted as to give complete control to foreigners or whites. Representative annexationists have repeatedly made similar statements to the undersigned.
The Government of Hawaii surrendered its authority under a threat of war, until such time only as the Government of the United States, upon the facts being presented to it, should reinstate the constitutional sovereign, and the Provisional Government was created “to exist until terms of union with the United States of America have been negotiated and agreed upon.” A careful consideration of the fact will, I think, convince you that the treaty which was withdrawn from the Senate for further consideration should not be resubmitted for its action thereon.
Should not the great wrong done to a feeble but independent State by an abuse of the authority of the United States be undone by restoring the legitimate government? Anything short of that will not, I respectfully submit, satisfy the demands of justice.
Can the United States consistently insist that other nations shall respect the independence of Hawaii while not respecting it themselves? Our Government was the first to recognize the independence of the Islands and it should be the last to acquire sovereignty over them by force and fraud.
With the world’s attention on Russia and the Crimean Peninsula, people may not know that the Hawaiian Kingdom’s neutrality was prompted by hostilities that erupted between Russia and the European Powers during the Crimean War (1854-56). The Hawaiian Kingdom was also an active participant during the war in the development of the international laws on neutrality.
Russia’s Black Sea Naval Fleet is based at Sevastopol Naval Base in Crimea, which gives Russian naval vessels access to the Mediterranean and Aegean Seas, and further to the Atlantic Ocean. The two waterways that provide access from the Black Sea are Turkey’s Bosporus Straits and the Strait of the Dardanelles. Sevastopol Naval Base was also at the center of a war between Russia and the Ottoman Empire in 1853 over this access after Russia insisted that the Ottoman Turks recognize Russia’s right in the Middle East in order to protect Russian Orthodox in the Ottoman Empire. The Ottoman’s refused and war broke out. On March 28, 1854, France and Great Britain joined the war on the side of the Ottoman Turks in order to prevent Russia’s increase in power over the region.
Naval battles between Russia and the French and British also spilled over to the Pacific Ocean where all three countries had naval and merchant ships. Battles were not confined to Crimea and the Caucasus, but were also fought in the Japan Seas, the Okhotsk Seas and in the North Pacific Ocean, and there was concern in Hawai‘i that it could reach the Hawaiian Islands. Just eleven years since Great Britain and France recognized the Hawaiian Kingdom as an independent State, King Kamehameha III, in Privy Council, declared the Hawaiian Kingdom to be a neutral State on May 16, 1854.
Prior to their impending involvement in the Crimean War, Great Britain and France each issued formal Declarations on March 28, 1854, and March 29, 1854, that declared neutral ships and goods would not be captured. Prior to this, international law did not afford protection for neutral ships carrying goods headed for the ports of countries who were at war. Under international law, these ships could be seized by either country’s naval vessels or by private ships that were commissioned by a country at war, which is called “privateering” and the goods seized were called “prizes.” The British and French diplomats that were posted in the Hawaiian Kingdom delivered both Declarations to the Hawaiian government.
On June 15, 1854, the Hawaiian Committee on the National Rights in regards to prizes had delivered its report during a meeting of the Privy Council in Honolulu. Robert C. Wyllie, Hawaiian Minister of Foreign Affairs, presented the committee report and the following resolution was passed and later made known to the countries engaged in the Crimean War.
“Resolved: That in the Ports of this neutral Kingdom, the privilege of Asylum is extended equally and impartially to the armed national vessels and prizes made by such vessels of all the belligerents, but no authority can be delegated by any of the Belligerents to try and declare lawful and transfer the property of such prizes within the King’s Jurisdiction; nor can the King’s Tribunals exercise any such jurisdiction, except in cases where His Majesty’s Neutral Jurisdiction and Sovereignty may have been violated by the Captain of any vessel within the bounds of that Jurisdiction.”
To broaden the international law of neutrality, the United States sought to get countries to agree thereby creating customary international law. On December 6, 1854, the U.S. diplomat assigned to the Hawaiian Kingdom, David L. Gregg, sent the following dispatch to the Hawaiian government regarding the recognition of neutral rights. The correspondence stated,
“I have the honor to transmit to you a project of a declaration in relation to neutral rights which my Government has instructed me to submit to the consideration of the Government of Hawaii, and respectfully to request its approval and adoption. As you will perceive it affirms the principles that free ships make free goods, and that the property of neutrals, not contraband of war, found on board of Enemies ships, is not confiscable. These two principles have been adopted by Great Britain and France as rules of conduct towards all neutrals in the present European war; and it is pronounced that neither nation will refuse to recognize them as rules of international law, and to conform to them in all time to come. The Emperor of Russia has lately concluded a convention with the United States, embracing these principles as permanent, and immutable, and to be scrupulously observed towards all powers which accede to the same.”
On January 12, 1855, the U.S. diplomat also sent another dispatch to the Hawaiian government that contained a copy of the July 22, 1854 Convention between the United States of America and Russia embracing certain principles in regard to neutral rights. After careful review of the U.S. President’s request, King Kamehameha IV in Privy Council, passed the following resolution on March 26, 1855.
“Resolved: That the Declaration of accession to the principles of neutrality to which the President of the United States invites the King, is approved, and Mr. Wyllie is authorized to sign and seal the same and pass it officially to the Commissioner of the United States in reply to his dispatches of the 6th December and 12th January last.”
Following the Privy Council meeting on the same day, Robert C. Wyllie signed the Declaration of Accession to the Principles of Neutrality as requested by the United States President and delivered it to the U.S. diplomat David L. Gregg. The Declaration provided,
“And whereas His Majesty the King of the Hawaiian Islands, having considered the aforesaid invitation of the President of the United States, and the Rules established in the foregoing convention respecting the rights of neutrals during war, and having found such rules consistent with those proclaimed by Her Britannic Majesty in Her Declaration of the 28th March 1854, and by His Majesty the Emperor of the French in the Declaration of the 29th of the same month and year, as well as with Her Britannic Majesty’s order in Council of the 15th April same year, and with the peaceful and strictly neutral policy of this Kingdom as proclaimed by His late Majesty King Kamehameha III on the 11th May 1854, amplified and explained by Resolutions of His Privy Council of State of the 15th June and 17th July same year, His Majesty, by and with the advice of His Cabinet and Privy Council, has authorized the undersigned to declare in His name, as the undersigned now does declare that His Majesty accedes to the humane principles of the foregoing convention, in the sense of its III Article.”
On April 7, 1855, King Kamehameha IV opened the Legislative Assembly. In his speech he reiterated the Kingdom’s neutrality by stating:
“It is gratifying to me, on commencing my reign, to be able to inform you, that my relations with all the great Powers, between whom and myself exist treaties of amity, are of the most satisfactory nature. I have received from all of them, assurances that leave no room to doubt that my rights and sovereignty will be respected. My policy, as regards all foreign nations, being that of peace, impartiality and neutrality, in the spirit of the Proclamation by the late King, of the 16th May last, and of the Resolutions of the Privy Council of the 15th June and 17th July. I have given to the President of the United States, at his request, my solemn adhesion to the rule, and to the principles establishing the rights of neutrals during war, contained in the Convention between his Majesty the Emperor of all the Russias, and the United States, concluded in Washington on the 22nd July last.”
The actions taken by the governments of the Hawaiian Kingdom, Great Britain, France, Russia, and the United States of America relating to the development of the principles of international law on neutrality provided the necessary pretext for the leading European maritime powers to meet in Paris, after the Crimean War, and enter into a joint declaration that provided the following four principles: first, privateering is, and remains, abolished; second, the neutral flag covers enemy’s goods, with the exception of contraband of war; third, neutral goods, with the exception of contraband of war, are not liable to capture under the enemy’s flag; and, fourth, blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.
The Declarations and the 1854 Russo-American Convention represented the first recognition of the right of neutral States to conduct free trade without any hindrance from war. Stricter guidelines for neutrality were later established in the 1871 Anglo-American Treaty made during the wake of the American Civil War, whereby both States agreed to the following rules.
“First, to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.
Second, not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.
Newer and stricter rules for the conduct of neutral States were expounded upon in the 1874 Brussels Conference, and later these principles were codified in the Fifth and Thirteenth Hague Conventions of 1907, governing the rights and duties of neutral States in Land and Maritime warfare.
Hawaiian neutrality was also stated in its treaties with Sweden/Norway (1852, Article XV), Spain (1863, Article XXVI), Germany (1879, Article VIII) and Italy (1869, Additional Article). Article XV of the Hawaiian Treaty with Sweden/Norway states,
“All vessels bearing the flag of Sweden and Norway in time of war shall receive every possible protection, short of actual hostility, within the ports and waters of His Majesty the King of the Hawaiian Islands; and His Majesty the King of Sweden and Norway engages to respect in time of war the neutral rights of the Hawaiian Kingdom, and to use his good offices with all other powers, having treaties with His Majesty the King of the Hawaiian Islands, to induce them to adopt the same policy towards the Hawaiian Kingdom.”
In 2001, the Permanent Court of Arbitration in the Netherlands verified the existence of the Hawaiian Kingdom as an independent State. The Court stated, “in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties.” Under international law all States have sovereign equality. States have equal rights and duties and are co-equal members of the international community regardless of their economic, social and political differences. Sovereign equality means:
- States are judicially equal;
- Each State enjoys the rights inherent in full sovereignty;
- Each State has the duty to respect the personality of other States;
- The territorial integrity and political independence of the State are inviolable;
- Each State has the right freely to choose and develop its own political, social, economic and cultural systems; and
- Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States.
The claim of State continuity on the part of the Hawaiian Kingdom has to be opposed as against a claim by the United States as to its succession. Principles of succession may operate even in cases where continuity is not called into question, such as with the cession of a portion of territory from one State to another, or occasionally in case of unification. Continuity and succession are, in other words, not always mutually exclusive but might operate in tandem. It is evident, furthermore, that the principles of continuity and succession may not actually differ a great deal in terms of their effect.
It is generally held that there are three principles that have some bearing upon the issue of continuity. First, that the continuity of the State is not affected by changes in government even if of a revolutionary nature. Secondly, that continuity is not affected by territorial acquisition or loss, and finally, continuity is not affected by military occupation. Professor Crawford, The Creation of States in International Law (2006), p. 34, points out that, “There is a strong presumption that the State continues to exist, with its rights and obligations, despite revolutionary changes in government, or despite a period in which there is no, or no effective, government. Belligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.”
Each of these principles reflects upon one of the key incidents of statehood—territory, government (legal order) and independence—making clear that the issue of continuity is essentially one concerned with the existence of States: unless one or more of the key constituents of Statehood are entirely and permanently lost, State identity will be retained. Their negative formulation, furthermore, implies that there exists a general presumption of continuity. According to Hall, A Treatise of International Law (1895), p. 22, a State retains its identity “so long as the corporate person undergoes no change which essentially modifies it from the point of view of its international relations, and with reference to them it is evident that no change is essential which leaves untouched the capacity of the state to give effect to its general legal obligations or to carry out its special contracts.”
If one were to speak about a presumption of continuity, one would suppose that an obligation would lie upon the party opposing that continuity to establish the facts substantiating its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by reference to a valid demonstration of legal title, or sovereignty, on the part of the United States, absent of which the presumption remains. It might be objected that formally speaking, the survival or otherwise of a State should be regarded as independent of the legitimacy of any claims to its territory on the part of other States. It is commonly recognized that a State does not cease to be such merely in virtue of the existence of legitimate claims over part or parts of its territory. Nevertheless, where those claims comprise the entire territory of the State, as they do in case of Hawai’i, and when they are accompanied by effective governance to the exclusion of the claimant, it is difficult, if not impossible, to separate the two questions. The survival of the Hawaiian Kingdom is premised upon the “legal” basis of present or past United States claims to sovereignty over the Hawaiian Islands.
To sum it up, any claim to State continuity will be dependent upon the establishment of two legal facts: first, that the State in question existed as a recognized entity for purposes of international law at some relevant point in history; and, secondly, that intervening events have not been such as to deprive it of that status. It should be made very clear, however, that the issue is not simply one of “observable” or “tangible facts,” but more specifically of “legally relevant facts.” It is not a case, in other words, simply of observing how power or control has been exercised in relation to persons or territory, but of determining the scope of “authority,” which is understood as “a legal entitlement to exercise power and control.” Authority differs from mere control by not only being essentially rule governed, but also in virtue of the fact that it is not always entirely dependent upon the exercise of that control.
Under international law, a State who claims to be the successor of another State, when not at war, must take place by cession. Professor Oppenheim, International Law (vol. 1, 1948), p. 499, explains that, “cession of State territory is the transfer of sovereignty over State territory by the owner-State to another State.” He further states that the “only form in which a cession can be effected is an agreement embodied in a treaty between the ceding and the acquiring State (p. 500).” The United States only claim to have extinguished the Hawaiian Kingdom is by a joint resolution of annexation passed by its Congress.
A joint resolution, however, is not a treaty or agreement between two States, but rather an agreement between the House of Representatives and the Senate in Washington, D.C. A joint resolution is a municipal law of the United States whose effect is limited to United States territory. The United States Supreme Court, The Apollon, 22 U.S. 362, 370 (1824), affirmatively stated, that the “laws of no nation can justly extend beyond its own territory” for it would be “at variance with the independence and sovereignty of foreign nations” In U.S. v. Belmont, 301 U.S. 324, 332 (1937), the Court also stated that, “our Constitution, laws and policies have no extraterritorial operation.” And in United States v. Curtiss-Wright Export Corp., (1936), the Court concluded, “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens; and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law…. [T]he court recognized, and in each of the cases cited [involving the exercise of the sovereign power of the United States] found, the warrant for its conclusions not in the provisions of the Constitution, but in the law of nations.”
If a joint resolution is limited to United States territory, how can a joint resolution annex a foreign State? Simply answered, it can’t and it didn’t.
When the House of Representatives and the Senate were debating the joint resolution in 1898, the Congressional record clearly showed that even the Representatives and Senators knew the limitation of congressional laws. On June 15, 1898, Congressman Thomas H. Ball (D-Texas) stated,
“The annexation of Hawai‘i by joint resolution is unconstitutional, unnecessary, and unwise. If the first proposition be true, sworn to support the Constitution, we should inquire no further. I challenge not the advocates of Hawaiian annexation, but those who advocate annexation in the form now presented, to show warrant or authority in our organic law for such acquisition of territory. To do so will be not only to subvert the supreme law of the land but to strike down every precedent in our history. …Why, sir, the very presence of this measure here is the result of a deliberate attempt to do unlawfully that which can not be done lawfully.”
And on June 20, 1898, Senator Augustus Bacon (D-Georgia) stated,
“That a joint resolution for the annexation of foreign territory was necessarily and essentially the subject matter of a treaty, and that it could not be accomplished legally and constitutionally by a statute or joint resolution. If Hawaii was to be annexed, it ought certainly to be annexed by a constitutional method; and if by a constitutional method it can not be annexed, no Senator ought to desire its annexation sufficiently to induce him to give his support to an unconstitutional measure.” Senator Bacon further explained, “Now, a statute is this: A Statute is a rule of conduct laid down by the legislative department, which has its effect upon all of those within the jurisdiction. In other words, a statute passed by the Congress of the United States is obligatory upon every person who is a citizen of the United States or a resident therein. A statute can not go outside the jurisdiction of the United States and be binding upon the subjects of another power. It takes the consent of the subjects of the other power, speaking or giving their consent through their duly authorized government, to be bound by a certain thing which is enacted in this country; and therein comes the necessity for a treaty.”
Nearly 100 years later, the United States Attorney General’s Office of Legal Counsel was befuddled by Congress’s annexation of the Hawaiian Islands by a joint resolution. In a 1988 memorandum titled “Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea,” the Office of Legal Counsel addressed the annexation of the Hawaiian Islands by joint resolution. Douglas Kmiec, Acting Assistant Attorney General, authored the memorandum for Abraham D. Sofaer, legal advisor to the U.S. State Department. After covering the limitation of Congressional authority and the objections made by members of the Congress, Kmiec concluded,
“Notwithstanding these constitutional objections, Congress approved the joint resolution and President McKinley signed the measure in 1898. Nevertheless, whether this action demonstrates the constitutional power of Congress to acquire territory is certainly questionable. … It is therefore unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution. Accordingly, it is doubtful that the acquisition of Hawaii can serve as an appropriate precedent for a congressional assertion of sovereignty over an extended territorial sea.”
The United States very own Attorney General’s office in 1988 clearly undermines the claim of sovereignty over the Hawaiian Islands by the United States. If the Attorney General’s Office of Legal Counsel is “unclear” as to the authority of Congress to annex the Hawaiian Islands, it surely cannot be considered as a “valid demonstration of legal title” by the United States to be the successor of the Hawaiian Kingdom under international law. If the United States is not the successor, then the presumption of the Hawaiian Kingdom’s existence as an independent State is maintained. In other words, the Hawaiian Kingdom’s continued existence is protected by international law even when it has been under an illegal and prolonged occupation by the United States since the Spanish-American War in 1898.
The Hawaiian Kingdom received the recognition of its independence and sovereignty by joint proclamation from the United Kingdom and France on November 28, 1843, and by the United States of America on July 6, 1844.
At the time of the recognition of Hawaiian independence, the Hawaiian Kingdom’s government was a constitutional monarchy that developed a complete system of laws, both civil and criminal, and have treaty relations of a most favored nation status with the major powers of the world, including the United States of America.
A. Permanent Population
According to Professor Crawford, The Creation of States in International Law, 2nd ed. (2006), p. 52, “If States are territorial entities, they are also aggregates of individuals. A permanent population is thus necessary for statehood, though, as in the case of territory, no minimum limit is apparently prescribed.” Professor Giorgetti, A Principled Approach to State Failure (2010), p. 55, explains “Once recognized, States continue to exist and be part of the international community even if their population changes. As such, changes in one of the fundamental requirements of statehood do not alter the identity of the State once recognized.”
In his report to U.S. Secretary of State Walter Gresham, Special Commissioner James Blount reported on June 1, 1893, “The population of the Hawaiian Islands can but be studied by one unfamiliar with the native tongue from its several census reports. A census is taken every six years. The last report is for the year 1890. From this it appears that the whole population numbers 89,990. This number includes natives, or, to use another designation, Kanakas, half-castes (persons containing an admixture of other than native blood in any proportion with it), Hawaiian-born foreigners of all races or nationalities other than natives, Americans, British, Germans, French, Portuguese, Norwegians, Chinese, Polynesians, and other nationalities. Americans numbered 1,928; natives and half-castes, 40,612; Chinese, 15,301; Japanese, 12,360; Portuguese, 8,602; British, 1,344; Germans, 1,034; French, 70; Norwegians, 227; Polynesians, 588; and other foreigners 419. It is well at this point to say that of the 7,495 Hawaiian-born foreigners 4,117 are Portuguese, 1,701 Chinese and Japanese, 1,617 other white foreigners, and 60 of other nationalities.”
The permanent population has exceedingly increased since the 1890 census and according to the last census in 2011 by the United States that number was at 1,374,810. International law, however, protects the status quo of the national population of an occupied State during occupation. According to Professor von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent Occupation (1957), p. 60, “the nationality of the inhabitants of occupied areas does not ordinarily change through the mere fact that temporary rule of a foreign government has been instituted, inasmuch as military occupation does not confer de jure sovereignty upon an occupant. Thus under the laws of most countries, children born in territory under enemy occupation possess the nationality of their parents, that is, that of the legitimate sovereign of the occupied area.” Any individual today who is a direct descendent of a person who lawfully acquired Hawaiian citizenship prior to the U.S. occupation that began at noon on August 12, 1898, is a Hawaiian subject. Hawaiian law recognizes all others who possess the nationality of their parents as part of the alien population.
B. Defined Territory
According to Judge Huber, in the Island of Palmas arbitration case, “Territorial sovereignty…involves the exclusive right to display the activities of a State.” Crawford, p. 56, also states, “Territorial sovereignty is not ownership of but governing power with respect to territory.”
§6 of the Compiled Laws of the Hawaiian Kingdom states, “The laws are obligatory upon all persons, whether subjects of this kingdom, or citizens or subjects of any foreign State, while within the limits of this kingdom, except so far as exception is made by the laws of nations in respect to Ambassadors or others. The property of all such persons, while such property is within the territorial jurisdiction of this kingdom, is also subject to the laws.”
The Islands constituting the defined territory of the Hawaiian Kingdom on January 17, 1893, together with its territorial seas whereby the channels between adjacent Islands are contiguous, its exclusive economic zone of two hundred miles, and its air space, include:
Island: Location: Square Miles/Acreage:
Hawai‘i 19º 30′ N 155º 30′ W 4,028.2 / 2,578,048
Maui 20º 45′ N 156º 20′ W 727.3 / 465,472
O‘ahu 21º 30′ N 158º 00′ W 597.1 / 382,144
Kaua‘i 22º 03′ N 159º 30′ W 552.3 / 353,472
Molokai 21º 08′ N 157º 00′ W 260.0 / 166,400
Lana‘i 20º 50′ N 156º 55′ W 140.6 / 89,984
Ni‘ihau 21º 55′ N 160º 10′ W 69.5 / 44,480
Kaho‘olawe 20º 33′ N 156º 35′ W 44.6 / 28,544
Nihoa 23º 06′ N 161º 58′ W 0.3 / 192
Molokini 20º 38′ N 156º 30′ W 0.04 / 25.6
Lehua 22º 01′ N 160º 06′ W 0.4 / 256
Ka‘ula 21º 40′ N 160º 32′ W 0.2 / 128
Laysan 25º 50′ N 171º 50′ W 1.6 / 1,024
Lisiansky 26º 02′ N 174º 00′ W 0.6 / 384
Palmyra 05º 52′ N 162º 05′ W 4.6 / 2,944
Ocean 28º 25′ N 178º 25′ W 0.4 / 256
TOTAL: 6,427.74 (square miles) / 4,113,753.6 (acres)
According to Crawford, p. 56, “Governmental authority is the basis for normal inter-State relations; what is an act of a State is defined primarily by reference to its organs of government, legislative, executive or judicial.” Since 1864, the Hawaiian Kingdom fully adopted the separation of powers doctrine in its constitution, being the cornerstone of constitutional governance.
Article 20, Hawaiian Constitution. The Supreme Power of the Kingdom in its exercise, is divided into the Executive, Legislative, and Judicial; these shall always be preserved distinct, and no Judge of a Court of Record shall ever be a member of the Legislative Assembly.
Article 31, Hawaiian Constitution. To the King belongs the executive power.
Article 45, Hawaiian Constitution. The Legislative power of the Three Estates of this Kingdom is vested in the King, and the Legislative Assembly; which Assembly shall consist of the Nobles appointed by the King, and of the Representatives of the People, sitting together.
Article 66, Hawaiian Constitution. The Judicial Power shall be divided among the Supreme Court and the several Inferior Courts of the Kingdom, in such manner as the Legislature may, from time to time, prescribe, and the tenure of office in the Inferior Courts of the Kingdom shall be such as may be defined by the law creating them.
1. Power to Declare and Wage War & to Conclude Peace
The power to declare war and to conclude peace is constitutionally vested in the office of the Monarch pursuant to Article 26, Hawaiian Constitution, “The King is the Commander-in-Chief of the Army and Navy, and for all other Military Forces of the Kingdom, by sea and land; and has full power by himself, or by any officer or officers he may judge best for the defense and safety of the Kingdom. But he shall never proclaim war without the consent of the Legislative Assembly.”
2. To Maintain Diplomatic Ties with Other Sovereigns
Maintaining diplomatic ties with other States is vested in the office of the Monarch pursuant to Article 30, Hawaiian Constitution, “It is the King’s Prerogative to receive and acknowledge Public Ministers…” The officer responsible for maintaining diplomatic ties with other States is the Minister of Foreign Affairs whose duty is “to conduct the correspondence of [the Hawaiian] Government, with the diplomatic and consular agents of all foreign nations, accredited to this Government, and with the public ministers, consuls, and other agents of the Hawaiian Islands, in foreign countries, in conformity with the law of nations, and as the King shall from time to time, order and instruct.” §437, Compiled Laws of the Hawaiian Kingdom. The Minister of Foreign Affairs shall also “have the custody of all public treaties concluded and ratified by the Government; and it shall be his duty to promulgate the same by publication in the government newspaper. When so promulgated, all officers of this government shall be presumed to have knowledge of the same.” §441, Compiled Laws of the Hawaiian Kingdom.
3. To Acquire Territory by Discovery or Occupation
Between 1822 and 1886, the Hawaiian Kingdom exercised the power of discovery and occupation that added five additional islands to the Hawaiian Domain. By direction of Ka‘ahumanu in 1822, Captain William Sumner took possession of the Island of Nihoa. On May 1, 1857; Laysan Island was taken possession by Captain John Paty for the Hawaiian Kingdom; on May 10, 1857 Captain Paty also took possession of Lysiansky Island; Palmyra Island was taken possession of by Captain Zenas Bent on April 15, 1862; and Ocean Island was acquired September 20, 1886, by proclamation of Colonel J.H. Boyd.
4. To Make International Agreements and Treaties and Maintain Diplomatic Relations with other States
Article 29, Hawaiian Constitution, provides, “The King has the power to make Treaties. Treaties involving changes in the Tariff or in any law of the Kingdom shall be referred for approval to the Legislative Assembly.” As a result of the United States of America’s recognition of Hawaiian independence, the Hawaiian Kingdom entered into a Treaty of Friendship, Commerce and Navigation, Dec. 20, 1849; Treaty of Commercial Reciprocity, Jan. 13, 1875; Postal Convention Concerning Money Orders, Sep. 11, 1883; and a Supplementary Convention to the 1875 Treaty of Commercial Reciprocity, Dec. 6, 1884.
The Hawaiian Kingdom also entered into treaties with Austria-Hungary (now separate States), June 18, 1875; Belgium, October 4, 1862; Denmark, October 19, 1846; France, September 8, 1858; Germany, March 25, 1879; the United Kingdom of Great Britain and Northern Ireland, March 26, 1846; Italy, July 22, 1863; Japan, August 19, 1871, January 28, 1886; Netherlands, October 16, 1862; Portugal, May 5, 1882; Russia, June 19, 1869; Spain, October 9, 1863; Sweden-Norway (now separate States), April 5, 1855; and Switzerland, July 20, 1864.
Foreign Legations accredited to the Court of the Hawaiian Kingdom in the city of Honolulu included the United States of America, Portugal, Great Britain, France and Japan.
Foreign Consulates in the Hawaiian Kingdom included the United States of America, Italy, Chile, Germany, Sweden-Norway, Denmark, Peru, Belgium, Netherlands, Spain, Austria-Hungary, Russia, Great Britain, Mexico and China.
Hawaiian Legations accredited to foreign States included the United States of America in the city of Washington, D.C.; Great Britain in the city of London; France in the city of Paris, Russia in the city of Saint Petersburg; Peru in the city of Lima; and Chile in the city of Valparaiso.
Hawaiian Consulates in foreign States included the United States of America in the cities of New York, San Francisco, Philadelphia, San Diego, Boston, Portland, Port Townsend and Seattle; Mexico in Mexico city and the city of Manzanillo; Guatemala; Peru in the city of Callao; Chile in the city of Valparaiso; Uruguay in the city of Monte Video; Philippines (former Spanish territory) in the city of Iloilo and Manila; Great Britain in the cities of London, Bristol, Hull, Newcastle on Tyne, Falmouth, Dover, Cardiff and Swansea, Edinburgh and Leith, Glasgow, Dundee, Queenstown, and Belfast; Ireland, in the cities of Liverpool, and Dublin; Canada (former British territory) in the cities of Toronto, Montreal, Bellville, Kingston Rimouski, St. John’s, Varmouth, Victoria, and Vancouver; Australia in the cities of Sydney, Melbourne, Brisbane, Hobart, and Launceston; New Zealand (former British territory) in the cities of Auckland and Dunedin; China in the cities of Hong Kong and Shanghai; France in the cities of Paris, Marseilles, Bordeaux, Dijon, Libourne and Papeete; Germany in the cities of Bremen, Hamburg, Frankfort, Dresden and Karlsruhe; Austria in the city of Vienna; Spain in the cities of Barcelona, Cadiz, Valencia Malaga, Cartegena, Las Palmas, Santa Cruz and Arrecife de Lanzarote; Portugal in the cities of Lisbon, Oporto Madeira, and St. Michaels; Cape Verde (former Portuguese territory) in the city of St. Vincent; Italy in the cities of Rome, Genoa, and Palermo; Netherland in the cities of Amsterdam and Dordrecht; Belgium in the cities of Antwerp, Ghent, Liege and Bruges; Sweden in the cities of Stockholm, Lyskil, and Gothemburg; Norway in the city of Oslo (formerly known as Kristiania); Denmark in the city of Copenhagen; and Japan in the city of Tokyo.
Since meeting with officials from the International Committee of the Red Cross (ICRC) on December 17, 2013 at its headquarters in Geneva, Switzerland, the acting government has been actively involved in securing a Protecting Power under the provisions of the Fourth Geneva Convention and the Additional Protocol 1. This process includes the ICRC and an unnamed State party to both the Fourth Geneva Convention and the Additional Protocol, but due to the sensitivity of the situation and negotiations the acting government is unable to provide a status report until a Protecting Power has been secured. A Protecting Power protects the interest of a third State and its citizenry during occupation.
The acting government deposited its instrument of accession to the Fourth Geneva Convention with the Swiss government on January 14, 2013 followed by its accession to the Additional Protocol 1 on December 16, 2013. As a party to the Geneva Convention, it is the duty of the acting government to secure a Protecting Power, being another party to the Geneva Conventions that is independent and not a party to the conflict. Article 5(1) of the Additional Protocol 1 provides: “It is the duty of the Parties to a conflict from the beginning of that conflict to secure the supervision and implementation of the Conventions and of this Protocol by the application of the system of Protecting Powers, including ‘inter alia’ the designation and acceptance of those Powers… Protecting Powers shall have the duty of safeguarding the interests of the Parties to the conflict.”
Article 1 of both the Fourth Geneva Convention and the Additional Protocol 1 provides that the “High Contracting Parties undertake to respect and to ensure respect for [the Convention and Protocol] in all circumstances.” According to the ICRC’s commentaries “the duty to respect implies that of ensuring respect by civilian and military authorities, the members of the armed forces, and in general, by the population as a whole.” The acting government has diligently worked to ensure compliance by these parties, but these authorities have recklessly disregarded the heeded warnings of compliance and have instead committed war crimes on a grand scale siding with the United States presence. This is directly attributable to the United States’ willful failure, as the occupying Power, to comply with the laws of occupation since the occupation began in 1898.
On this note, the ICRC comments, “In the event of a Power failing to fulfill its obligations, each of the other Contracting Parties, (neutral, allied or enemy) should endeavor to bring it back to an attitude of respect for the Convention. The proper working of the system of protection provided by the Convention demands in fact that the States which are parties to it should not be content merely to apply its provisions themselves, but should do everything in their power to ensure that it is respected universally.”
As stated on the acting government’s website:
“The primary objective of the Hawaiian Kingdom Government is to expose the occupation of our nation within the framework of the 1907 Hague Conventions IV and V and our domestic statutes, and to provide a foundation for transition and the ultimate end of the occupation of the Hawaiian Kingdom. Article 43 of the 1907 Hague Convention IV mandates that the occupying government, being the United States of America, must administer the laws of the occupied State, being the Hawaiian Kingdom, and any deviation of this mandate is a violation of international law.”
War crimes are actions taken by individuals, whether military or civilian, that violates international humanitarian law, which includes the 1907 Hague Conventions, 1949 Geneva Conventions and the Additional Protocols to the Geneva Conventions. War crimes include “grave breaches” of the 1949 Fourth Geneva Convention, which also applies to territory that is occupied even if the occupation takes place without resistance. Protected persons under International Humanitarian Law are all nationals who reside within an occupied State, except for the nationals of the Occupying Power. The International Criminal Court and States prosecute individuals for war crimes.
War Crimes: Attempts to Denationalize the Inhabitants of an Occupied State
The first instance of war crimes was brought up during World War I. In 1919, the Commission on Responsibilities of the Paris Peace Conference identified 32 war crimes, one of which was “attempts to denationalize the inhabitants of occupied territory.” The prosecution of German officials and their Allies for war crimes committed during World War I, however, was dismal. Of 5,000 individuals reported for war crimes only 12 were tried and 6 were convicted.
In October of 1943, the United States, the United Kingdom and the Soviet Union established the United Nations War Crimes Commission (UNWCC). World War II had been waging since 1939, and atrocities committed by Germany, Italy and Japan drew the attention of the Allies to hold individuals responsible for the commission of war crimes. On December 2, 1943, the UNWCC adopted the war crimes that were drawn up by the Commission on Responsibilities in 1919 with the addition of another war crime—indiscriminate mass arrests. The UNWCC was organized into three Committees: Committee I (facts and evidence), Committee II (enforcement), and Committee III (legal matters).
Committee III was asked to provide a report on war crime charges against four Italians accused of denationalization in Yugoslavia. The charge stated:
“Apart from killing, deportation and interning innocent persons, the Italians started a policy, on a vast scale, of denationalization. As a part of such a policy, they started a system of ‘re-education’ of Yugoslav children. This re-education consisted of forbidding children to use the Serbo-Croat language, to sing Yugoslav songs and forcing them to salute in a fascist way, become members of the G.I.L. (Gioventu italiana del Littoria) and spend a certain time in camps for ‘education.’ In all these actions aimed at the denationalization of Yugoslav children, Dr. Binna took a very active part. He brought Italian teachers from Italy and posted them all over the province of Zadar. Amongst those Italian teachers who insisted on the Italianization of Yugoslav children, BETTINI, Education Inspector and INCHIOSTRI, head-master of a secondary school at SIBENIK took a prominent part. Dr. Tulio NICOLETTI Trustee for Education at SIBENIK, and Edoardo CIUBELLI, Education Inspector at ZADAR, were also prominently associated with this policy. NICOLETTI organized special courses for teachers to learn Italian and Italian ‘methods’ and he threatened all those who would not attend the courses. Dr. BINNA is also responsible for forbidding the edition of any newspaper printed in the Serbo-Croat language, and for forcing Yugoslavs to hoist Italian flags.”
The question before Committee III was whether or not “denationalization” constituted a war crime that called for prosecution or merely a violation of international law. The Committee reported:
“It is the duty of belligerent occupants to respect, unless absolutely prevented, the laws in force in the country (Art. 43 of the Hague Regulations). Inter alia, family honour and rights and individual life must be respected (Art. 46). The right of a child to be educated in his own native language falls certainly within the rights protected by Article 46 (‘individual life’). Under Art. 56, the property of institutions dedicated to education is privileged. If the Hague Regulations afford particular protection to school buildings, it is certainly not too much to say that they thereby also imply protection for what is going to be done within those protected buildings. It would certainly be a mistaken interpretation of the Hague Regulations to suppose that while the use of Yugoslav school buildings for Yugoslav children is safe-guarded, it should be left to the unfettered discretion of the occupant to replace Yugoslav education by Italian education.”
“It is the rationale of Art. 56 to protect spiritual values. And in order to afford this protection to spiritual values the provision protects the property of institutions dedicated to public worship, charity, education, science and art as a means to a certain end; to make public worship, charity, education, science and art possible even under belligerent occupation. If the belligerent occupant must not confiscate, seize, destroy, or willfully damage the property of educational institutions, he is the less entitled to interfere with the spiritual and intellectual life of the schools, the only possible legitimate exception being considerations of the safety of the occupying forces.”
The Committee concluded:
“In the case of Nicoletti (No. 20) who is described as Educational Trustee, it appears that he was a kind of Commissioner in charge of the administration and Italianization of the schools in the district. In his case it seems to be conceivable to fasten upon him the individual responsibility for the whole Italianization scheme. The case of the three other persons who were mainly teaching personnel, seems prima facie to be different.”
Denationalization through Germanization was also taking place during World War II. “Within weeks of the fall of France, Alsace-Lorraine was annexed and thousands of citizens deemed too loyal to France, not to mention all its ‘alien-race’ Jews and North African residents, were unceremoniously deported to Vichy France, the southeastern section of the country still under French control. This was done in the now all too familiar manner: the deportees were given half an hour to pack and were deprived of most of their assets. By the end of July 1940, Alsace and Lorraine had become Reich provinces. The French administration was replaced and the French language totally prohibited in the schools. By 1941, the wearing of berets had been forbidden, children had to sing ‘Deutschland über Alles’ instead of ‘La Marseillaise’ at school, and racial screening was in full swing.” Lynn H. Nicholas, Cruel World: The Children of Europe in the Nazi Web (2005), 277.
In 1906, the United States, as the occupying State, instituted a plan of Americanization in the Hawaiian Islands. The objective was to erase any and all national consciousness of the Hawaiian Kingdom amongst the school children in the Hawaiian Islands. The Hawaiian language was banned and American patriotism was taught in the public schools. The policy was established to counter the strong Hawaiian nationalism and opposition to American annexation as reported by the San Francisco Call newspaper, Strangling Hands Upon a Nation’s Throat (1897), Hawaii’s Last Struggle for Freedom (1897), and Passing of Hawaii as a Nation (1898). Americanization was carried out on a massive scale across the islands by inculcating American patriotism into the hearts of the school children and have them recite on a daily basis, ““We give our heads and our hearts to God and our Country! One Country! One Language! One Flag!”
The policy of Americanization bore a striking resemblance to Italianization and Germanization that took place during World War II, but where the German and Italian occupations only lasted six years (1939-1945), the American occupation of the Hawaiian Kingdom (1898-present) has gone uninterrupted for 116 years. What Germany and Italy failed to accomplish in six years, the United States was nearly successful at 116 years.
Today, there is no clear distinction made between the occupying State and the occupied State, as was the case between Yugoslavia and Italy or France and Germany during World War II. This was the case, however, when the United States military occupation began in 1898 during the Spanish-American War. But because of the prolonged nature of the occupation and the nearly successful program of denationalization, this clear distinction between the occupier and the occupied soon dissipated and our own people have unknowingly become the ones maintaining the policy of Americanization at the present.
The revitalization of the Hawaiian language and culture is in response to years of Americanization and the fact that the majority of the inhabitants of the Hawaiian Islands, to include the aboriginal Hawaiian, do not speak the Hawaiian language and know very little of Hawaiian culture is unequivocally the evidence of the war crime of “denationalization.”
In yesterday’s post “The San Francisco Call: Haywood Gratified, Mohailani Very Sad,” Mohailani appears to be a pseudo name, which is literally translated to “great sacrifice.” It was an emotional and comprehensive response of a bereaved person or persons. It is clear that the San Francisco Call knew whom to contact for responses and that “Mohailani” was someone that the Call was already familiar with.
The tenor of Mohailani’s response was definitely from someone who was already familiar with the Hawaiian opposition to annexation that included not just the men but also the women. This appears to point to the San Francisco Call’s coverage of the Hawaiian Patriotic League “Strangling Hands on a Nation’s Throat,” published September 30, 1897, and “Hawaii’s Last Struggle for Freedom,” published November 28, 1897. Both stories centered on a petition of over 21,000 signatures protesting annexation that was gathered by the Hawaiian Patriotic League.
The last story centered on a Hawaiian Commission that arrived in San Francisco on their way to Washington, D.C. James Kaulia, President of the Hawaiian Patriotic League, led a Hawaiian Commission of four men in order to present the signature petition to the United States Senate when it convened in December of 1897.
Could it be that “Mohailani” was the collective pseudo name for the Hawaiian Commission especially their stated loathe for Senator Morgan?
Hawaii has sent four of her representative men to plead wit the United States before annexation is consummated. These men, forming a committee unique in the history of modern nations, have arrived in San Francisco. On Monday they will proceed to Washington.
The committee consists of two full-blooded Hawaiians and two half-Hawaiians. The leader of the delegation is Mr. James K. Kaulia, the president of the Hawaiian Patriotic League. There are, besides, Mr. David Kalauokalani, the leader of the second Hawaiian society, which differs only in its opinion on local matters from the Patriotic League; Mr. William Auld, who is a possessor of considerable property on the island of Oahu, and Mr. John Richardson, a lawyer from the island of Maui, whose command of English, as well as his ability as a lawyer, makes him the spokesman of the party.
Mr. Richardson and Mr. Kaulia were interviewed by the The Call yesterday upon their mission.
“We are going to Washington,” said Mr. Richardson, “with the hope of inducing the President and the Committee on Foreign Relations to listen to our side of the question. From documents in our possession we think we can convince any fair-minded man that the great majority of the natives of Hawaii are opposed to annexation. If, from our showing, the United States is not assured of this fact, we shall ask that a vote be taken.”
“A secret ballot?”
Mr. Richardson threw open his arms. “It doesn’t matter. Even if the ballot be open the very men who have refused to sign our memorial will vote against annexation.”
“Then some Hawaiians have refused to sign the petition against annexation?”
Mr. Kaulia, who had sat listening quietly, his grave face and dark eyes turned upon his more vivacious colleague, spoke now.
“Nearly twenty-one thousand Hawaiians have signed the memorial we are taking to Washington. The men, the natives, who have refused to sign, tell us that it would hurt their business or jeopardize their positions if their names were added to our petition. But they are with us in feeling, and as John—Mr. Richardson—says, if it comes to a vote, they will forget every other consideration, and remember only that their country is being taken from them.”
“Your committee has been sent to Washington by the Hawaiians.”
“Yes, we four have been chosen to speak for Hawaii,” said Mr. Richardson. “The natives have subscribed liberally to the fund which pays our expenses. Maui, the island of Maui, is the leader in this. At first the Hawaiians would not believe that there was really any danger of annexation. But on Maui—Maui is a unit on anti-annexation sentiment—we insisted that a delegation be sent. You know the native didn’t believe it possible that the United States would annex the islands, knowing the opposition of the Hawaiians. They wouldn’t believe that things could go so far.”
“And what is their opinion now?”
“Now they are thoroughly awakened to the danger. But they are hopeful—”
“The United States cannot,” interrupted Mr. Kaulia, “if it has any regard for justice, annex our country, after our protest. We have come to make known how the natives feel in the matter. I tried to see Senator Morgan when he was in Honolulu. Twice I wrote asking him when he could see me, when he could listen to us—he had listened long to the annexationists—but I received no answer. The natives are very bitter in their dislike of him, for they know how determined he is on annexation.”
“But there is considerable opposition,” said Mr. Richardson. “Senators Du Boise and Pittigrew, who came upon on the same steamer with us, have spent ten days on the islands. They see and admit the injustice that would be done the Hawaiians if their country were taken from them. Senator Du Boise says that he hasn’t met one native Hawaiian who is in favor of annexation, and he went as far as the island of Hawaii. He didn’t remain in Honolulu.”
“In case, though, of annexation, what will the Hawaiians do?”
Mr. Richardson spoke very seriously. “If the people of the United States take Hawaii the natives will have to kept down by force—as they are now.”
“We hope to convince your Government that the Government of the Islands was overthrown by means of American warships; that the present is not a representative Government, and that the Hawaiians will never be reconciled to the loss of nationality.”
“The members of the administration are doing everything in their power to bring about annexation. If they learn that they are not likely to succeed in this way they will try another. They will do as they did before—declare that their lives and property are in danger and ask that the American flag be raised. And we know, we Hawaiians, that if the flag goes up again it will never come down.”
“But what will you do about it?” Mr. Richardson was asked.
“We will fight,” he answered determinedly. “We will turn upon the administration, and we will fight before we let that flag go up again.”
“The Hawaiians are very peaceable people—very easy going and good natured. They do not become angry easily. It takes a great deal to rouse them. But they are roused now. They recognize that if resistance is to be made it must be now. They can fight—they will fight rather than allow their land, their own country, to be taken from them.”
This article in the San Francisco Call newspaper was sent by Willy Kauai, a doctoral candidate in Political Science at the University of Hawai‘i at Manoa. Kauai’s doctoral research centers on Hawaiian nationality or citizenship, which spans from its origin under the reign of King Kamehameha I, progenitor of the Hawaiian Kingdom, through its legal evolution during the 19th century, and its maintenance under the laws of occupation to date.
Kauai’s research also addresses the racial discrimination injected into the population of the Hawaiian Islands since the usurpers seized temporary control of the Hawaiian government in 1887, which served as the precursor to the United States invasion and unlawful overthrow of the government of the Hawaiian Kingdom, and the ultimate occupation since the Spanish-America War in 1898. The title of Kauai’s dissertation is “E/racing Hawaiian Citizenship Amid US Occupation.” Kauai will be defending his dissertation in April 2014 and is expected to graduate the following month with his Ph.D. degree.
On July 28, 1898, the San Francisco Call newspaper published responses by individuals in the Hawaiian Islands as to their reaction to the passing of the joint resolution by the United States Congress to annex the Hawaiian Islands titled “Passing of Hawaii as a Nation: How News of Annexation is Received at the Islands.” One particular response was titled “Haywood Gratified, Mohailani Very Sad.” Just ten months earlier, the San Francisco Call published a front-page story covering Hawaiian opposition to annexation titled, “Strangling Hands Upon a Nation’s Throat.” As a result of this opposition the United States Senate was unable to ratify a so-called treaty of annexation signed between the insurgents and the McKinley administration. Unable to accomplish the task by treaty, annexationists in the Congress introduced a joint resolution, instead. The Congress knew that a joint resolution, being a Congressional law, had no force beyond the borders of the United States, but they disguised the process as if it did, through propaganda, in order to conceal an illegal occupation of a foreign State for military purposes.
HONOLULU, July 20.—“I am naturally gratified that annexation has at last been accomplished,” said Consul General Haywood when the news of annexation reached him. “It is what I came to these islands to see done, and I am glad I have not had to go home disappointed. The United States has given to the people of these islands what I consider to be the greatest gift they could receive—American citizenship—which carries with it stable government and protection from the nations of the world. It only remains with the people here to make the most of the gift. This can only be done by forgetting past animosities and working harmoniously for the public good. Americans will then make of these islands not merely the paradise of the Pacific, but the Paradise of the world.”
HONOLULU, July 20.—To the Editor of the San Francisco Call: You ask me how we Hawaiians have received the news which has deprived us of our country and our nationality. I can only say that my countrymen are yet unable to realize the fact that the great republic which boasts of its democratic and republican principles has committed the unholy act which in history will be known as the “Rape of Hawaii.”
We had hoped that the joint resolution would be defeated in the Senate, and we were stunned when we learned of the vote, which results in the annihilation of our beloved country and in the driving to the wall of all Hawaiians. I can assure you that there is not one Hawaiian who in his heart favors annexation. What would you think of any man or woman who with indifference could see the flag of his or her country go down and their individually absorbed by a foreign race which, whatever you may say, does look down on us as their inferiors and despises our color and our way of living?
I can tell you, and few men have the opportunity of knowing the Hawaiians as I do, that many tears were shed when the news by the Coptic reached the homes of those who know no other country than these islands, which once were justly called the Paradise of the Pacific. We cannot be happy under our new conditions. We will feel like strangers among the people who will rule us, and with whose ideas, mode of living and political principles we cannot harmonize.
Our women feel it even worse than we men do. The teachings of the New England missionaries, the rum they brought with them, the diseases following in their train, have enervated the Hawaiian men. We can talk, don’t you forget it, but we cannot fight. If we had yet the fighting qualities of our ancestors, the overturn of our monarchy would never have taken place, and during the past years we would have been entitled to interference in the name of humanity in our struggles against the usurpers.
Our women have shown more energy, more solid patriotism and more strength than we have. The women of Hawaii to-day stand as a unit in their hatred toward America and everything American. And can you blame them? They see before them a future where their children will be forced into competition with your pushing, rushing, money-grabbing race. The dolce far niente of Hawaii must disappear and the struggle for life will begin in which the strongest will survive, and the gentle, indolent, easy-going Hawaiian will have no show in that battle for life, and who can blame us for feeling sad over a future which necessarily means destruction of our race?
I cannot deny that one great reason for our opposition to annexation is that we fear that we will be called “niggers” and treated as you do that class in your “free” country. We have been assured that such will not be the case, but experience tells us differently. Our countrymen who have traveled in the States have often been subjected to great humiliation and insult on account of their skin, and we expect that the day will come when we will risk similar affronts right in our streets, and remember that we have neither the wealth nor the inclination to strike our tents in other climes. We have no other home than Hawaii, and that home we have lost.
And what will our position be in the political and social life of these islands after your flag floats over the palace of our chiefs?
Senator Morgan of Alabama told a large assembly of Hawaiians, when he visited here, that he could promise them equal political rights with any American in any State of America. He told us that each of us would have as good a chance to become President of the United States as has Grover Cleveland. (I believe him in that.) He said that Hawaii would be a State, and that by the power of our majority we would control the affairs of Hawaii and enjoy true self-government. He paid a glowing tribute to our intelligence and excellent qualities, and told us how he loved “colored” people.
We didn’t believe a word of what that ex-slave driver from Alabama said, and there is no man more despised and loathed among the Hawaiians than Senator Morgan, who now is to frame a government for Hawaii.
The Hawaiians have at present no intention of taking any active interest in the government of their country. They feel like the children of Israel did when they sat down in exile and bemoaned their fate. What has happened cannot be undone, but none of us can see what your great country has gained by adding to the Union such unwilling and hostile people. We are not savages, as your Indians of Alaska, or ignorant as your “greasers.” For nearly a century we have conducted a fairly good government and lived in harmony with the white man who benefited from our hospitality and whose descendants now rob us of our country.
Go ask any man, woman or child what he thinks to-day of the “haole” (the foreigner), and you will get an answer in a very emphatic and plain language.
When Chinese and Japanese coolies are stopped from coming here as contract laborers we will have the satisfaction of laughing at the men who make their money out of slave labor and who brought on annexation to gain the benefit of the sugar bounty. But that satisfaction is very slim when we realize the fact that we will be trodden under foot by the invaders, and that when your flag, which we admire in its proper place, waves over Hawaii, to pronounce the fact that we are homeless and that our country has ceased to exist.
(It is not known who Mohailani is, but Hawaiians were known for using a pseudo name when authoring commentaries of a political nature. “Mohailani” is literally translated in the Hawaiian language as the “GREAT SACRIFICE.”)
War crimes are actions taken by individuals, whether military or civilian, that violates international humanitarian law, which includes the 1907 Hague Conventions, 1949 Geneva Conventions and the Additional Protocols to the Geneva Conventions. War crimes include “grave breaches” of the 1949 Fourth Geneva Convention, which also applies to territory that is occupied even if the occupation takes place without resistance. Protected persons under International Humanitarian Law are all nationals who reside within an occupied State, except for the nationals of the Occupying Power. The International Criminal Court and States prosecute individuals for war crimes.
War Crimes: Destroying or seizing the [Occupied State’s] property unless such destruction or seizure be imperatively demanded by the necessities of war
On August 12, 1898, the United States of America seized approximately 1.8 million acres of land that belonged to the government of the Hawaiian Kingdom and to the office of the Monarch. These lands were called Government lands and Crown lands, respectively, whereby the former being public lands and the latter private lands. These combined lands constituted nearly half of the entire territory of the Hawaiian Kingdom.
Beginning on July 20, 1899, President McKinley began to set aside portions of these lands by executive orders for “installation of shore batteries and the construction of forts and barracks.” Below are the schematics for defense of the popularly known Diamond Head crater at Waikiki.
The first executive order set aside 15,000 acres for two Army military posts on the Island of O‘ahu called Schofield Barracks and Fort Shafter. According to Van Brackle’s “Pearl Harbor from the First Mention of ‘Pearl Lochs’ to Its Present Day Usage,” this soon followed the securing of lands for Pearl Harbor naval base in 1901 when the U.S. Congress appropriated funds for condemnation of 719 acres of private lands surrounding Pearl River, which later came to be known as Pearl Harbor. By 2012, the U.S. military has 118 military sites that span 230,929 acres of the Hawaiian Islands, which is 20% of the total acreage of Hawaiian territory.
Military training locations include Pacific Missile Range Facility, Barking Sands Tactical Underwater Range, and Barking Sands Underwater Range Expansion on the Island of Kaua‘i; the entire Islands of Ni‘ihau and Ka‘ula; Pearl Harbor, Lima Landing, Pu‘uloa Underwater Range—Pearl Harbor, Barbers Point Underwater Range, Coast Guard AS Barbers Point/Kalaeloa Airport, Marine Corps Base Hawai‘i, Marine Corps Training Area Bellows, Hickam Air Force Base, Kahuku Training Area, Makua Military Reservation, Dillingham Military Reservation, Wheeler Army Airfield, and Schofield Barracks on the Island of O‘ahu; and Bradshaw Army Airfield and Pohakuloa Training Area on the Island of Hawai‘i.
The United States Navy’s Pacific Fleet headquartered at Pearl Harbor hosts the Rim of the Pacific Exercise (RIMPAC) every other even numbered year, which is the largest international maritime warfare exercise. RIMPAC is a multinational, sea control and power projection exercise that collectively consists of activity by the U.S. Army, Air Force, Marine Corps, and Naval forces, as well as military forces from other foreign States. During the month long exercise, RIMPAC training events and live fire exercises occur in open-ocean and at the military training locations throughout the Hawaiian Islands. In 2012, Australia, Canada, Chile, Colombia, France, India, Indonesia, Japan, Mexico, Malaysia, Netherlands, New Zealand, Norway, Peru, Philippines, Russia, Singapore and South Korea participated in the RIMPAC exercises.
In 2006, the United States Army disclosed to the public that depleted uranium (DU) was found on the firing ranges at Schofield Barracks on the Island of O‘ahu. It subsequently confirmed DU was also found at Pohakuloa Training Area on the Island of Hawai‘i and suspect that DU is also at Makua Military Reservation on the Island of O‘ahu. The ranges have yet to be cleared of DU and the ranges are still used for live fire. This brings the inhabitants who live down wind from these ranges into harms way because when the DU ignites or explodes from the live fire, it creates tiny particles of aerosolized DU oxide that can travel by wind. And if the DU gets into the drinking water or oceans it would have a devastating effect across the islands.
The Hawaiian Kingdom has never consented to the establishment of military installations throughout its territory and these installations and war-gaming exercises stand in direct violation of Articles 1, 2, 3 and 4, 1907 Hague Convention, V, Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land.
The deliberate and willful decision by the United States of America’s administration, as the occupant State, not to comply with international law and establish a military government since 1893 to administer the laws of the Hawaiian Kingdom, being the occupied State, has led to grave breaches and war crimes on an grand scale equal to none in the history of the world and the ramifications are world wide.
As a consequence of the illegal presence of United States military installations throughout the Hawaiian Islands, the United States of America consequently placed the Hawaiian Kingdom and its population in perilous danger from military attack by foreign States. On December 7, 1941, Japan’s military attacked United States military sites on the Island of O‘ahu.
In 1990, the United States Federal Emergency Management Agency (FEMA) published Risks and Hazards: A State by State Guide. One of the subjects included nuclear targets and identified six (6) nuclear targets on the island of O‘ahu that coincided with the locations of military posts of the U.S. Army, Navy, Air Force and Marines. Also included as a target is the Headquarters of the U.S. Pacific Command at Camp Smith that lies in the back of a residential area called Halawa. According to FEMA, the entire Island of O‘ahu would be obliterated if a nuclear attack were to take place.
The United States military presence also incurs the threat of attack from States and non-State actors who are adversaries of the United States of America. On March 26, 2013, the New York Times reported, “North Korea said on Tuesday that all of its strategic rocket and long-range artillery units ‘are assigned to strike bases of the U.S. imperialist aggressor troops in the U.S. mainland and on Hawaii and Guam and other operational zones in the Pacific as well as all the enemy targets in South Korea and its vicinity.’” The Christian Science Monitor also reported, “North Korea announced today in a blizzard of threats that it is ready to target US military bases in Guam and Hawaii as part of a full-alert military posture.”
War crimes are actions taken by individuals, whether military or civilian, that violates international humanitarian law, which includes the 1907 Hague Conventions, 1949 Geneva Conventions and the Additional Protocols to the Geneva Conventions. War crimes include “grave breaches” of the 1949 Fourth Geneva Convention, which also applies to territory that is occupied even if the occupation takes place without resistance. Protected persons under International Humanitarian Law are all nationals who reside within an occupied State, except for the nationals of the Occupying Power. The International Criminal Court and States prosecute individuals for war crimes.
War Crimes: Unlawful deportation or transfer or unlawful confinement
According to the United States Department of Justice, the prison population in the Hawaiian Islands in 2009 was at 5,891. Of this population there were 286 aliens. Two paramount issues arise—first, prisoners were sentenced by courts that were not properly constituted under Hawaiian Kingdom law and/or the international laws of occupation and therefore were unlawfully confined, which is a war crime; second, the alien prisoners were not advised of their rights in an occupied State by their State of nationality in accordance with the 1963 Vienna Convention on Consular Relations. Compounding the violation of alien prisoners rights under the Vienna Convention, Consulates located in the Hawaiian Islands were granted exequaturs by the government of the United States of America by virtue of United States treaties and not treaties between the Hawaiian Kingdom and these foreign States.
In 2003, the United States of America through its political subdivision, the State of Hawai‘i, allocated funding to transfer up to 1,500 prisoners to private corrections institutions in the United States of America. By June of 2004, there were 1,579 Hawai‘i inmates in these facilities. Although the transfer was justified as a result of overcrowding, the government of the State of Hawai‘i did not possess authority to transfer, let alone to prosecute in the first place. Therefore, the unlawful confinement and transfer of inmates are war crimes.
In order to counter the prevailing sense of Hawaiian patriotism and love of country that was reported in the San Francisco Call newspaper in 1897, the Territorial government, which was illegally established in the Hawaiian Islands by the United States in 1900, embarked on a plan of institutionalized indoctrination in the public school system. One of the leading newspapers for the insurgents, who were now officials in the territorial government, printed a story on the upcoming plan to indoctrinate the children in its April 3, 1906 edition. The Hawaiian Gazette, reported:
“As a means of inculcating patriotism in the schools, the Board of Education has agreed upon a plan of patriotic observance to be followed in the celebration of notable days in American history, this plan being a composite drawn from the several submitted by teachers in the department for the consideration of the Board. It will be remembered that at the time of the celebration of the birthday of Benjamin Franklin, an agitation was begun looking to a better observance of these notable national days in the schools, as tending to inculcate patriotism in a school population that needed that kind of teaching, perhaps, more than the mainland children do—although patriotism is inculcated in the schools there also.”
“The matter was taken up by the school department, at once, and the teachers were asked to submit their views upon it. The result is embodied in the “patriotic program” printed herewith, which represents the best educational thought of the Territory. The program follows, and will be sent out officially in pamphlet form as a guide to teachers in the observance of national holidays in the schools:”
To view the entire article click “Patriotic Program for School Observance.”
According to the U.S. Library of Congress website Chronicling America, “The Hawaiian Gazette was a fervent advocate of the sugar industry and other American economic interests in Hawai‘i. Early on, these interests were in line with those of the Hawaiian monarchy; as such, the Hawaiian Gazette became the official newspaper of the Kingdom in 1865 under King Kamehameha V and was published by James H. Black and the Hawaiian government until 1873. In the mid-1870s, the paper turned decidedly anti-monarchy when the views of King Kalākaua and those of the local oligarchy—a powerful contingent of pro-American, pro-annexation sugar interests—began to diverge. The Hawaiian Gazette attacked Kalākaua’s government for what it regarded as wasteful spending on the King’s coronation ceremony and efforts to revive public performances of Hawaiian chanting and hula. It avidly supported the call for a new government, which was achieved in 1887 when the Bayonet Constitution effectively stripped the king of his power and secured the oligarchy’s political authority. At that time, the Hawaiian Gazette resumed its place as one of the government’s biggest advocates; indeed, several high-ranking members of the oligarchy, including William R. Castle and Sanford B. Dole, would oversee the newspaper in years to come. In January 1893, the paper was among several that refused to print Queen Liliu‘okalani’s protest against the overthrow of the Hawaiian monarchy and painted her efforts to reestablish the Kingdom’s authority as illegal and counterrevolutionary. Following the Queen’s overthrow on January 17, 1893, the Hawaiian Gazette published the proclamation and orders of the new Provisional Government and began referring to Liliu‘okalani as Hawai‘i’s ‘ex-Queen.’ Two weeks later, the paper asserted that it, together with the Pacific Commercial Advertiser , ‘contained the only true and extended account of the late revolution’ and encouraged readers to sign the Provisional Government’s loyalty oath.”
In the September 30, 1897 publication of the San Francisco Call newspaper, an article was published and authored by Miriam Michelson who was an American journalist and writer. The article was written as Michelson was leaving Honolulu harbor on board the Steamship Australia heading to San Francisco. Michelson was sent to the Hawaiian Islands to do a story on annexation. Her story centers on a signature petition against annexation being gathered throughout the islands by the Hawaiian Patriotic League (Hui Aloha ‘Aina) and she bears witness to one of those meetings in the city of Hilo on the Island of Hawai‘i.
It is a powerful article that speaks to the issue of annexation from the Hawaiian perspective and the article’s title clearly speaks to the veracity of what the reader will read. Not known at the time, however, was whether or not the signature petitions would prevent the United States Senate from ratifying the so-called treaty of annexation. Before the Senate convened in December of 1897, officers of the Hawaiian Patriotic League and the Hawaiian Political Association traveled to Washington, D.C. and met with Senator George Hoar of Massachusetts. Senator Hoar agreed to submit the signature petition onto the record of the Senate when it convened, and by March of 1898, the signature petition successfully killed the treaty as the Senate was unable to garner enough votes for ratification.
Here follows a snippet of the article, which is quite lengthy, but you can read it in its entirety by going to this link and downloading the entire article in PDF format. “Strangling Hands Upon A Nations Throat”
The strongest memory I have of the islands is connected with the hall of the Salvation Army at Hilo, on the Island of Hawaii. It’s a crude little place, which holds about 300 people, I should think. The rough, uncovered rafters show above, and the bare walls are relieved only by Scriptural admonitions in English and Hawaiian:
“Boast not thyself of to-morrow.” “Without Christ there is no salvation.”
As I entered, the bell on the foreign church, up on one of the beautiful Hilo hills, was striking ten. The place was packed with natives, and outside stood a patient crowd unable to enter. It was a women’s meeting, but there were many men present. The women were dressed in Mother Hubbards of calico or cloth and wore sailor hats—white or black. The men were in coats and trousers of American make.
Presently the crowd parted and two women walked in, both very tall, dressed in handsome free-flowing trained gowns of black crepe-braided in black. They wore black kid gloves and large hats of black straw with black feathers. The taller of the two—a very queen in dignity and repose—wore nodding red roses in her hat, and about her neck and falling to the waist a long, thick necklace of closely strung, deep-red, coral-like flowers, with delicate ferns interspersed.
This was Mrs. Kuaihelani Campbell, the president of the Women’s Hawaiian Patriotic League. Her companion was the secretary of the branch in Hilo.
It was almost pitiful to note the reception of these two leaders—the dumb, almost adoring fondness in the women’s eyes; the absorbed, close interest in the men’s dark heavy faces.
After the enthusiasm had subsided the minister of the Hawaiian church arose. He is tall, blonde, fair faced, three-quarters white, as they say here. Clasping his hands in front and looking down over the bowed dark heads before him he made the short opening prayer. He held himself well, his sentences were short and his manner was simple.
There is something wonderfully effective in earnest prayer delivered in an ancient language with which one is unfamiliar. One hears not words, but tones. His feelings, not his reason, are appealed to. Freed of the limiting effects of stereotyped phrases the imagination supplies the sense. Like the Hebrew and the Latin the Hawaiian tongue seems to touch the primitive sources of one’s nature, to strip away the complicated armor with which civilization and worldliness have clothed us and to leave the emotions bare for that wonderful instrument, a man’s deep voice, to play upon.
The minister closed and a deep murmuring “Amen” from the people followed.
I watched Mrs. Emma Nawahi curiously as she rose to address the people. I have never heard two women talk in public in quite the same way. Would this Hawaiian woman be embarrassed or timid, or self-conscious or assertive?
Not any of these. Her manner had the simple directness that made Charlotte Perkins Stetson, two years ago, the most interesting speaker of the Woman’s Congress. But Mrs. Stetson’s pose is the most artistic of poses—a pretense of simplicity. This Hawaiian woman’s thoughts were of her subject, not of herself. There was an interesting impersonality about her delivery that kept my eyes fastened upon her while the interpreter at my side whispered his translation in short, detached phrases, hesitating now and then for a word, sometimes completing the thought with a gesture.
“The United States is just—a land of liberty. The people there are the friends, the great friends of the weak. Let us tell them—let us show them that as they love their country and would suffer much before giving it up, so do we love our country, our Hawaii, and pray that they do not take it from us.”
“Our one hope is in standing firm—shoulder to shoulder, heart to heart. The voice of the people is the voice of God. Surely that great country across the ocean must hear our cry. By uniting our voices the sound will be carried on so they must hear us.”
“In this petition, which we offer for your signature to-day, you, women of Hawaii, have a chance to speak your mind. The men’s petition will be sent on by the men’s club as soon as the loyal men of Honolulu have signed it. There is nothing underhand, nothing deceitful in our way—our only way—of fighting. Everybody may see and may know of our petition. We have nothing to conceal. We have right on our side. This land is ours—our Hawaii. Say, shall we lose our nationality? Shall we be annexed to the United States? Aole loa. Aole loa.”
It didn’t require the interpreter’s word to make me understand the response. One could read negation, determination in every intent, dark face.
“Never!’ they say,” the man beside me muttered. “Never! they say. ‘No! No!’ they say-”
But the presiding officer, a woman, was introducing Mrs. Campbell to the people. Her large mouth parted in a pleased smile as the men and women stamped and shouted. She spoke only a few words, good-naturedly, hopefully. Once its seemed as though she were talking them all in her confidence, so sincere and soft was her voice as she leaned forward.
“Stand firm, my friends. Love of country means more to you and to me than anything else. Be brave; be strong. Have courage and patience. Our time will come. Sign this petition—those of you who love Hawaii. How many—how many will sign?”
She held up a gloved hand as she spoke, and in a moment the palms of hundreds of hands were turned toward her.
They were eloquent, those deep lined, broad, dark hands, with their short fingers and worn nails. They told of poverty, of work, of contact with the soil they claim. The woman who presided had said a few words to the people, when all at once I saw a thousand curious eyes turned upon me.
“What is it?” I asked the interpreter. “What did she say?”
He laughed. “‘A reporter is here,’ she says. She says to the people, ‘Tell how you feel. Then the Americans will know. Then they may listen.’”
A remarkable scene followed. One by one men and women rose and in a sentence or two in the rolling, broad voweled Hawaiian made a fervent profession of faith.
“My feeling,” declared a tall, broad-shouldered man, whose dark eyes were alight with enthusiasm. “This is my feeling: I love my country and I want to be independent—now and forever.”
“And my feeling is the same,” cried a stout, bold-faced woman, rising in the middle of the hall. “I love this land. I don’t want to be annexed.”
“This birthplace of mine I love as the American loves his. Would he wish to be annexed to another, greater land?”
“I am strongly opposed to annexation. How dare the people of the United States rob a people of their independence?”
“I want the American Government to do justice. America helped to dethrone Liliuokalani. She must be restored. Never shall we consent to annexation!”
“My father is American; my mother is pure Hawaiian. It is my mother’s land I love. The American nation has been unjust. How could we ever love America?”
“Let them see their injustice and restore the monarchy!” cried an old, old woman, whose dark face framed in its white hair was working pathetically.
“If the great nations would be fair they would not take away our country. Never will I consent to annexation!”
“Tell America I don’t want annexation. I want my Queen,” said the gentle voice of a woman.
“That speaker is such a good woman,” murmured the interpreter. “A good Christian, honest, kind and charitable.”
“I’m against annexation—myself and all my family.”
“I speak for those behind me,” shouted a voice from far in the rear. “They cannot come in—they cannot speak. They tell me to say, ‘No annexation. Never.’”
I am Kauhi of Kalaoa. We call it Middle Hilo. Our club has 300 members. They have sent me here. We are all opposed to annexation—all—all!”
He was a young man. His open coat showed his loose dark shirt; his muscular body swayed with excitement. He wore boots that came above his knees. There was a large white handkerchief knotted about his brown throat, and his fine head, with its intelligent eyes, rose from his shoulders with a grace that would have been deerlike were it not for its splendid strength.
“I love my country and oppose annexation,” said a heavy-set, gray-haired man with a good, clear profile. “We look to America as our friend. Let her not be our enemy!”
“Hekipi, a delegate from Molokai to the league, writes: ‘I honestly assert that the great majority of Hawaiians on Molokai are opposed to annexation. They fear that if they become annexed to the United States they will lose their lands. The foreigners will reap all the benefit and the Hawaiians will be placed in a worse position than they are to-day.”
“I am a mail carrier. Come with me to my district.” A man who was sitting in the first row rose and stretched out an appealing hand. “Come to my district. I will show you 2000 Hawaiians against annexation.”
“I stand—we all stand to testify to our love of our country. No flag but the Hawaiian flag. Never the American!”
There was cheering at this, and the heavy, sober, brown faces were all aglow with excited interest.
I sat and watched and listened.
At Honolulu I had asked a prominent white man to give me some idea of the native Hawaiian’s character.
“They won’t resent anything,” he said, contemptuously. “They haven’t a grain of ambition. They can’t feel even envy. They care for nothing but easy and extremely simple living. They have no perseverance, no backbone. They’re unfit.”
Yet surely here was no evidence of apathy, of stupid forbearance, of characterless cringing.
These men and women rose quickly one after another, one interrupting the other at times, and then standing expectantly waiting his turn—too simple, too sincere, it seemed to me, to feel self-conscious or to study for a moment about the manner of his speech, so vital was the matter delivered.
They stood as all other Hawaiians stand—with straight shoulders splendidly thrown back and head proudly poised. Some held their roughened, patient hands clasped, some bent and looked toward me, as though I were a sort of magical human telephone and phonograph combined.
I might misunderstand a word or two of the interpreted message, but there was no mistaking those earnest, brown faces and beseeched dark eyes, which seemed to try to bridge the distance my ignorance of their language and their slight acquaintance with mine created between us.
I verily believe that even the most virulent of annexationists would have thought these Hawaiians human; almost worthy of consideration.
The people rose now and sang the majestic Hawaiian National Hymn. It was sung fervently, a full, deep chorus of hundreds of voices. The music is beautifully characteristic, with its strong, deep bass chords to which the women’s plaintive, uncultivated voices answer. Then there was a benediction, and the people passed out into the muddy street.
War Crimes: Willfully depriving a protected person of the rights of fair and regular trial
Since January 17, 1893, there have been no lawfully constituted courts in the Hawaiian Islands whether Hawaiian Kingdom courts or military commissions established by order of the Commander of the United States Pacific Command in conformity with the 1907 Hague Convention, IV, the 1949 Geneva Convention, IV, and the international laws of occupation.
The Federal courts and State of Hawai‘i courts in the Hawaiian Islands derive their authority from the Hawai‘i Statehood Act, which is a statute enacted by the United States Congress in 1959. Section 9 states that “the United States District Court for the District of Hawaii established by and existing under title 28 of the United States Code shall henceforth be a court of the United States with judicial power derived from article III, section 1, of the Constitution of the United States;” and Section 12 provides that “State courts shall be the successors of the courts of the Territory [of Hawai‘i] as to all cases arising within the limits embraced within the jurisdiction of such courts, respectively, with full power to proceed.”
The United States Constitution and Congressional laws have no legal effect beyond the borders of the United States. According to the United States Supreme Court in U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936), “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law. As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family.” Without a treaty of cession, these Courts cannot claim to have any authority in the territory of a foreign State, and, therefore, they are not properly constituted to give defendant(s) a fair and regular trial whether in civil or criminal proceedings.
International law also provides limitations to the exercise of jurisdiction. The sovereignty of an independent state is territorial and international law provides for its restrictions and exceptions. In The Lotus case, the Permanent Court of International Justice stated, “Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from convention (treaty).” The Court continued, “In these circumstances, all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.”
In 2006, the United States Supreme Court addressed the issue of whether or not the military courts at Guantanamo Bay were lawfully established. The case was Hamdan v. Rumsfeld, 548 U.S. 557. The Court relied on the International Committee of the Red Cross that defines a “regularly constituted court” as a court “established and organized in accordance with the laws and procedures already in force in a country.” Article 3 of the 1949 Geneva Convention, IV, prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” The Federal courts and State of Hawai‘i courts were not established “in accordance with the laws and procedures” of the Hawaiian Kingdom nor was it regularly constituted under the international laws of occupation, and therefore was not “regularly constituted” under any of the above standards.
Only a “regularly constituted court” may pass judgment, and when a court is not “regularly constituted,” the proceedings that would lead to a judgment imposed by it would not only be extrajudicial, but would also constitute a war crime. Enforcements of these judgments would also constitute war crimes because the judgments themselves are unlawful. In Hamdan, Justice Kennedy concluded that a court that is not regularly constituted could not provide any guarantees of a fair trial.
In a civil case hearing that came before Judge Glenn S. Hara, Wells Fargo Bank, N.A., vs. Elaine E. Kawasaki, et al., civil no. 11-1-106, in the Circuit Court of the Third Circuit, State of Hawai‘i, on June 15, 2012, Mr. Kaiama, Esq., provided special appearance for Defendant Elaine E. Kawasaki on a motion to dismiss for lack of subject matter jurisdiction based on two executive agreements entered into between U.S. President Grover Cleveland and the Hawaiian Kingdom’s Queen Lili‘uokalani in 1893. The transcripts of the case fully layout the argument presented by Kaiama.
After arguing the merits of the case, Kaiama states, “I have now been arguing, Your Honor, this motion before judges of the courts of the circuit court and district court throughout the State of Hawai‘i, and nearly—and probably over 20 times, and in not one instance has the plaintiff in the cases challenged the merits of the executive agreement or that the executive agreements have been terminated. Because we believe, respectfully, again, Your Honor, they cannot.” He continues to argue that “it’s irrefutable that these are executive agreements and preempts state law, …which is the state statute that plaintiff relies on in their complaint seeking to confer jurisdiction upon that court,” and “once we have met our burden [of proof], the court cannot have no other, we believe, no other recourse but to dismiss the complaint.” Unable to deny the evidence, Judge Hara replies, “what you’re asking the court to do is commit suicide, because once I adopt your argument, I have no jurisdiction over anything. Not only these kinds of cases…, but jurisdiction of the courts evaporate. All of the courts across the state from the supreme court down, and we have no judiciary. I can’t do that.”
Two issues resonate from Judge Hara’s statement: first, he’s admitting to the veracity of the evidence; and, secondly, he knowingly and deliberately denied the Defendant, Ms. Elaine Kawasaki, and fair and regular trial, and allowed the Plaintiff, Wells Fargo Bank, to proceed to unlawfully seize upon her home. Unfair trials can lead to other crimes under the Court’s jurisdiction that include appropriation of property, both real and personal, which is also called pillaging, and unlawful confinement.
Kawasaki provided notice to Wells Fargo Bank of a defect in her fee-simple title as a result of the 1893 overthrow of the Hawaiian government, and for Wells Fargo Bank to file an insurance claim with the title insurance company in order to pay off the debt owed. Kawasaki was required by the lender to purchase a lender’s title insurance policy at escrow to protect the lender and have the debt paid off if there exists a defect in the title, which would render the mortgage invalid. A foreclosure process is directly tied to a valid mortgage, and if the mortgage is invalid there can be no foreclosure. Wells Fargo Bank disregarded Kawasaki’s notice and proceeded with the foreclosure in a court that was not regularly constituted.
War Crimes: Compelling a protected person to serve in the forces of an Occupying Power
The United States Selective Service System is an agency of the United States government that maintains information on those potentially subject to military conscription. Under the Military Selective Service Act, “it shall be the duty of every male citizen of the United States, and every other male person residing in the United States, who, on the day or days fixed for the first or any subsequent registration, is between the ages of eighteen and twenty-six, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President and by rules and regulations prescribed hereunder.”
Conscription of the inhabitants of the Hawaiian Islands unlawfully inducted into the United States Armed Forces through the Selective Service System occurred since the First World War to the Vietnam War. The 1907 Hague Convention, V, “Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land,” also prohibits the Occupying Power from establishing recruiting stations on the territory of a neutral Occupied State (Article 4).
There were 4,336 residents of the Hawaiian Islands drafted in the United States military during the First World War (September 1917-November 1918) and 32,197 of Hawai‘i’s residents drafted during the Second World War (November 1940-October 1946). There are no statistics available as to the number of Hawai‘i’s residents drafted during the Korean War (June 1950-June 1953) and the Vietnam War (August 1964-February 1973), but there were over 25,000 of Hawai‘i’s residents who served during the Korean War and 13,000 of Hawai‘i’s residents who served during the Vietnam War.
Although induction into the United States Armed Forces has not taken place since February 1973, the requirements to have residents of the Hawaiian Islands who reach the age of 18 to register with the Selective Service System for possible induction is unlawful and therefore war crimes are still being committed. The Selective Service System in the Hawaiian Islands is headquartered on the Island of O’ahu.
War Crime: Extensive appropriation of property, not justified by military necessity and carried out unlawfully and wantonly
Between 2002 and 2012, the United States Internal Revenue Service, hereinafter “IRS,” illegally appropriated $74.8 million dollars from the residents of the Hawaiian Islands. During this same period, the government of the State of Hawai‘i additionally appropriated $2.2 billion dollars illegally. The IRS is an agency of the United States of America and cannot appropriate money from the inhabitants of an occupied State without violating international law. The State of Hawai‘i is a political subdivision of the United States of America established by an Act of Congress in 1959 and as an entity without any extraterritorial effect, it couldn’t appropriate money from the inhabitants of an occupied State without violating the international laws of occupation.
According to the laws of the Hawaiian Kingdom, taxes upon the inhabitants of the Hawaiian Islands include: an annual poll tax of $1 dollar to be paid by every male inhabitant between the ages of seventeen and sixty years; an annual tax of $2 dollars for the support of public schools to be paid by every male inhabitant between the ages of twenty and sixty years; an annual tax of $1 dollar for every dog owned; an annual road tax of $2 dollars to be paid by every male inhabitant between the ages of seventeen and fifty; and an annual tax of ¾ of 1% upon the value of both real and personal property.
The Merchant Marine Act, June 5, 1920 (41 U.S. Stat. 988), hereinafter referred to as the Jones Act, is a restraint of trade and commerce in violation of international law and treaties between the Hawaiian Kingdom and other foreign States. According to the Jones Act, all goods, which includes tourists on cruise ships, whether originating from Hawai‘i or being shipped to Hawai‘i must be shipped on vessels built in the United States that are wholly owned and crewed by United States citizens. And should a foreign flag ship attempt to unload foreign goods and merchandise in the Hawaiian Islands will have to forfeit its cargo to the to the U.S. Government, or an amount equal to the value of the merchandise or cost of transportation from the person transporting the merchandise.
As a result of the Jones Act, there is no free trade in the Hawaiian Islands. 90% of Hawai‘i’s food is imported from the United States, which has created a dependency on outside food. The three major American ship carriers for the Hawaiian Islands are Matson, Horizon Lines, and Pasha Hawai‘i Transport Services, as well as several low cost barge alternatives. Under the Jones Act, these American carriers travel 2,400 miles to ports on the west coast of the United States in order to reload goods and merchandise delivered from Pacific countries on foreign carriers, which would have otherwise come directly to Hawai‘i ports. The cost of fuel and the lack of competition drive up the cost of shipping and contribute to Hawai‘i’s high cost of living. Gas tax is $.47 per gallon as a result of the Jones Act because only American ship carriers can transport oil to the Hawaiian Islands to be converted into gas. And according to the USDA Food Cost, Hawai‘i residents in January 2012 pay an extra $417 per month for food on a thrifty plan than families who are on a thrifty plan in the United States of America.
Appropriating monies directly through taxation and appropriating monies indirectly as a result of the Jones Act to benefit American ship carriers and businesses is unlawful and therefore are international crimes.
The Kanaka Express is a television show hosted by Kale Gumapac. In this segment, Kale Gumapac is interviewing Dr. Keanu Sai on his thoughts of the January 13, 2014 front page story of the Honolulu Star-Advertiser “Kingdom still in place courts told.”
For more information visit Hawai‘i State Association of Parliamentarians
Excerpts from Na Lula Halawai.
“It is a sad reality of Hawaiian history that the language of the aboriginal people of the Hawaiian Kingdom was nearly lost in the 20th century as a result of efforts of U.S. forces in the Kingdom at the turn of the century to enforce an agenda of ‘one nation, one language’ in favor of the United States and the English language despite the lack of a bilateral treaty of cession between two sovereign states. A great debt of gratitude is owed to those who, nevertheless, labored to publish Hawaiian language literature and government documents throughout the 19th and early 20th centuries for future generations. This preservation effort has blossomed in recent decades as more and more cultural and educational organizations have been established to support and encourage what has become known since the 1970s as the ‘Hawaiian Renaissance,’ a concerted effort to reinvigorate studies in Hawaiian culture, art, history, language, and governance.” p. iii.
“Like Robert’s Rules, this book is also intended for non-legislative groups and organizations. And, Henry M. Robert adapted his rules manual of those in use by legislative assemblies at the time, this manual is based on and adapted from the Rules of Order once used in the early Hawaiian legislatures. The oldest known such pamphlets, published in both Hawaiian and English, date back to 1854 and were intended for use in the House of Nobles (Hale ‘Aha ‘olelo Ali‘i) and House of Representatives (Hale o ka Po‘e Koho ‘ia), both of which are included in the Appendix for reference. These early pamphlets are treasures of Hawaiian history and often bear amazing resemblance to Robert’s Rules, which is no surprise since it seems clear that the early Hawaiian legislative rules were themselves adapted from US models familiar to the early Western advisors to the Hawaiian monarchy. Subsequent legislatures in Hawai‘i revised their rules throughout the Kingdom period and as late at 1909 in the Territory. These and various early legislative journals and minutes have been drawn upon and adapted by the authors to establish acceptable terminology and grammar for current use.” p. 1.
The European Convention on Nationality defines nationality as the legal bond between a person and a State and does not indicate the person’s ethnic origin. It is a person owing loyalty to and entitled by birth or naturalization to the protection of a given State. The terms nationality and citizenship are synonymous, and affords a person the political right to participate in government. Without it, a person is prevented from electing governmental officials or serving as a government official themselves. A political right is distinctly different from a civil right, which are basic human rights protected by the constitution and laws of the State, irregardless of a person’s citizenship. Non-citizens residing in the State are categorized as Aliens or Foreigners.
There are three ways a person could acquire citizenship within an established State depending on its national laws: (1) jus sanguinis, where a person acquires the citizenship of his or her parents; (2) jus soli, where the nationality is conferred upon a person by birth within the territory of the State; and (3) naturalization, where the government grants citizenship upon the application of a foreigner.
On January 21, 1868, the Minister of the Interior for the Hawaiian Kingdom, His Excellency Ferdinand Hutchison, stated the criteria for Hawaiian nationality: “In the judgment of His Majesty’s Government, no one acquires citizenship in this Kingdom unless he is born here, or born abroad of Hawaiian parents, (either native or naturalized) during their temporary absence from the kingdom, or unless having been the subject of another power, he becomes a subject of this kingdom by taking the oath of allegiance.”
The position of His Majesty’s Government was founded upon Hawaiian statute. Section III, Art. I, Chap. V of an Act to Organize the Executive Departments, 1845 and 1846, provided that: “All persons born within the jurisdiction of this kingdom, whether of alien foreigners, of naturalized or of native parents, and all persons born abroad of a parent native of this kingdom, and afterwards coming to reside in this, shall be deemed to owe native allegiance to His Majesty. All such persons shall be amenable to the laws of this kingdom as native subjects. All persons born abroad of foreign parents, shall unless duly naturalized, as in this article prescribed, be deemed aliens, and treated as such, pursuant to the laws.”
There are two exceptions where birth within the territory does not result in citizenship. First, where a child is born within the territory, but the child’s parents are foreign ambassadors or diplomats, that child is not a citizen of the territory of birth; and second, where a child is born of Alien enemies in an area of the territory under hostile occupation, that child will not be a citizen.
Regarding children of foreign diplomats, Frederick Turrill was an American citizen born in the Hawaiian Islands, but later got naturalized on May 21, 1888; and E.H. Wodehouse was a British subject born in the islands and later naturalized on May 7, 1892. The second exception applies to belligerent occupations.
There are numerous references to “children born of alien enemies in hostile occupation,” and one such reference is a U.S. Supreme Court decision. In the same year the United States began its hostile occupation of Hawaii in 1898 during the Spanish-American War, its Supreme Court rendered a decision concerning the United States citizenship of Wong Kim Ark, a person of Chinese descent. In that decision it also expounded upon the two exceptions to the acquisition of citizenship by birth as determined by the common law of England and made reference to an English case, Calvin’s case, which was decided by the English Court in the year 1608. Although the Hawaiian Kingdom courts have stated that the common law is not in force in this Kingdom, it did state that “…in construing our law the Court must be guided by those enactments and the decisions of American and English Courts.” In re Apuna, 6 Haw. 732 (1869).
In United States vs. Wong Kim Ark (1898), the U.S. Supreme Court ruled, “The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called ‘ligealty,’ ‘obedience,’ ‘faith’ or ‘power,’ of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual—as expressed in the maxim, protectio trahit subjectionem, et subjectio protectionem—and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore naturalborn subjects. but the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction of the King.”
In the Calvin’s case (1608), the English Court stated: “…for if enemies should come into the realm, and possess town or fort, and have issue there, that issue is no subject of the King of England though he be born upon his soil;” and “if any of the King’s ambassadors in foreign nations have children…they are natural born subjects [of England], yet they are born out of the King’s dominion.”
Once a State is occupied, international law preserves the status quo of the occupied State as it was before the occupation began. To preserve the nationality of the occupied State from being manipulated by the occupying State to its advantage, international law only allows individuals born within the territory of the occupied State to acquire the nationality of their parents—jus sanguinis. To preserve the status quo, Article 49 of the Fourth Geneva Convention mandates that the “Occupying Power shall not…transfer parts of its own civilian population into the territory it occupies.” For individuals, who were born within Hawaiian territory, to be a Hawaiian subjects they must be a direct descendant of a person or persons who were Hawaiian subjects prior to the American occupation that began at 12 noon on August 12, 1898, which was when ceremonies took place by the United States annexing the islands. All other individuals born after 12 noon on August 12, 1898 to the present are Aliens who can only acquire the nationality of their parents.
According to the 1890 government census, Hawaiian subjects numbered 48,107, with the aboriginal Hawaiian, both pure and part, numbering 40,622, being 84% of the national population, and the non-aboriginal Hawaiians numbering 7,485, being 16%. Despite the massive and illegal migrations of foreigners to the Hawaiian Islands since 1898, which, according to the State of Hawai‘i numbers 1,302,939 in 2009, the status quo of the national population of the Hawaiian Kingdom is maintained. Therefore, under the international laws of occupation, the aboriginal Hawaiian population of 322,812 in 2009 would continue to be 84% of the Hawaiian national population, and the non-aboriginal Hawaiian population of 61,488 would continue to be 16%. The balance of the population in 2009, being 918,639, are Aliens who were illegally transferred, either directly or indirectly, by the United States of America as the occupying Power.
Similar to the Hawaiian Kingdom, the Baltic States of Estonia, Latvia and Lithuania were occupied by the Russians for over half a century. In 1940, Russian intervention provided for the forced incorporation of these Baltic States into the U.S.S.R. In 1991, with the breakup of the Soviet Union, these Baltic States once again regained their independence and immediately had to deal with the pressing issue of citizenship in the aftermath of prolonged Russian occupation.
Roger Brubaker, author of the article Citizenship struggles in Soviet Successor States (1992), stated that Estonia adopted a model for defining the initial body of citizens as the restored State model. States who regained their former independence are called restored States, and as these States are not new there would be no need to redefine a new body of citizens, but rather utilize the laws that existed before the occupation to determine the citizenry.
Under this model, persons born in Estonia before the 1940 annexation and their descendants were recognized as having Estonian citizenship. This also included United States citizens who were the offspring of Estonians. Regarding the citizenry of the occupier, the Estonian government also applied the same view the 1898 U.S. Supreme Court had made in U.S. vs. Wong Kim Ark. It viewed all Russians who entered the country after the occupation in 1940, and their descendants, as illegal and could not claim Estonian citizenship. But if a Russian was born in Estonia before the occupation that person acquired citizenship. Latvia also adopted the restored State model. Therefore, it can be stated as a matter of law and based on contemporary examples, that the Hawaiian citizenry of today is comprised of descendants of Hawaiian subjects and those foreigners who were born in the Hawaiian Islands prior to August 12, 1898.
This exclusion of the Hawaiian citizenry is based upon precedence and law, but a restored Hawaiian government does have the authority to widen the scope of its citizenry and adopt a more inclusive model in the aftermath of prolonged American occupation. Brubaker stated that Lithuania adopted such a model. Under the inclusive model, the original citizenry of Lithuania was confirmed under the restored State model, but the foreigners, which included the Russians, were divided into two groups. The first group comprised of permanent residents who would be granted optional inclusion in the Lithuanian citizenry, while the second would be classified as aliens. The optional inclusion of the first group depended upon these residents meeting certain minimum requirements established by the Lithuanian government. (i.e. years of residency and/or language).
Addition: The first occupation by the United States of America took place from January 17, 1893 to April 1, 1893, which, according to international law, any child born between these dates can only acquire the citizenship of their parents. International law provides that an occupation begins when foreign troops are in effective control of an invaded State’s territory and not merely present within the territory. Although the U.S. troops were landed on January 16, 1893, it did not have effective control until Queen Lili‘uokalani temporarily yielded her executive power to the United States, which called for a Presidential investigation. Before Special Commissioner James Blount initiated his investigation he ordered the U.S. flag to be removed and ordered the troops back on to the U.S.S. Boston that was anchored in Honolulu harbor on April 1, 1893.
Despite over a century of illegal migration that exploded the Alien population from 41,873 in 1890, of which U.S. citizens merely number 1,928, to 918,639 in 2009, the population of Hawaiian subjects has remained intact with its ratio of 84% aboriginal Hawaiians and 16% non-aboriginal Hawaiians. This should alleviate the concern of aboriginal Hawaiian subjects who previously thought they were the minority, when in fact and law they remain the majority. Only Hawaiian subjects, whether aboriginal or non-aboriginal, have political rights, which means they alone can participate in government.
After the illegal overthrow of the Hawaiian government on January 17, 1893, the insurgency under the protection of U.S. troops began to force individuals in government to sign oaths of support for the provisional government. If they refused, they would lose their jobs.
This created much anxiety amongst the population and soon pit Hawaiian against Hawaiian. The majority, however, were heeding the call of Queen Lili‘uokalani to onipa‘a (hold fast) peacefully and await the conclusion of the investigation by President Cleveland who sent his Special Commissioner James Blount to the Islands. In a memorial submitted by the officers of the Hawaiian Patriotic League to President Grover Cleveland on December 27, 1893, they aptly explain:
“And while waiting for the result of [the investigation], with full confidence in the American honor, the Queen requested all her loyal subjects to remain absolutely quiet and passive, and to submit with patience to all the insults that have been since heaped upon both the Queen and the people by the usurping Government. The necessity of this attitude of absolute inactivity on the part of the Hawaiian people was further indorsed and emphasized by Commissioner Blount, so that, if the Hawaiians have held their peace in a manner that will vindicate their character as law-abiding citizens, yet it can not and must not be construed as evidence that they are apathetic or indifferent, or ready to acquiesce in the wrong and bow to the usurpers.”
After negotiating settlement with the Queen through executive mediation between November 16 and December 18, 1893, where an agreement of restoration was reached—called the Agreement of restoration, the Congress prevented President Cleveland from carrying out the executive agreements because it had its eyes on acquiring the Hawaiian Islands as a military outpost.
Cleveland’s failure to carry out the agreement allowed the provisional government to increase its power by hiring mercenaries from the United States who previously served in the U.S. armed forces. On July 4, 1894, the insurgency renamed themselves the Republic of Hawai‘i who would hold onto power at all costs until a new President could replace Cleveland. The insurgency’s goal from the beginning was to cede the Hawaiian Islands to the United States.The insurgency continued to force government officials to sign oaths of support to the so-called Republic.
The Hawaiian Kingdom’s Royal Hawaiian Band refused to take the oath to support the provisional government and were forced to relinquish their jobs on February 1, 1893. The former band members approached Ellen Kekoaohiwaikalani Wright Prendergrast and asked if she could compose a song of their loyalty to the Hawaiian Kingdom and their defiance to the insurgency. Mrs. Prendergrast composed “Mele Aloha ‘Aina,” which is translated to “Patriot’s Song.”
The song was sung by the former band members at the anniversary of the band’s resignation on February 1, 1894, and according to historian Albtertine Loomis, “One who heard the band boys sing it on the anniversary of their defiance said it had on the Hawaiians the effect of the ‘Marseillaise’ on the French—’exciting and exasperating.’ The hula ku‘i business (stamping, heel-twisting, thigh-slapping, dipping of knees, doubling of fists) almost drowned out the words, but the fierce loyalty was written in every shining face. Over and over they beat out the rhythm, thumping their drums and miming their scorn of the ‘paper of the enemy,’ of the ‘heap of government money.’ It was a pledge renewed. They had not thought it would be so long before President Cleveland kept his word, but they would wait.”
The Patriot’s Song has endured and it is a well-known song played today throughout the islands. The lyrics are still sung in the Hawaiian language, and for people today who do not know the language they are completely unaware as to the meaning of the song and its fierce loyalty to the Hawaiian Kingdom and Queen Lili‘uokalani. This is especially so because the melody has been drastically softened since the 1950’s, but the lyrics have remained nearly unchanged for over a century.
“Tell the story of the people who love their land.” Aloha ‘Aina.
Queen Lili‘uokalani’s reign was fraught with political power struggles and rumors of overthrow. The 1890 McKinley Tariff Act created an economic depression. On January 14, 1893, the Queen proclaimed her intent to reinstate the lawful constitution in response to calls by the people and political organizations, in particular the Hui Kalai‘aina (Hawaiian Political Association).
In reaction, Lorrin Thurston organized a small group of insurgents into a Committee of Safety to plan for the ultimate takeover of the government and to secure annexation to the United States. The so-called Committee of Safety sought support from U.S. Minister John L. Stevens on January 16, 1893 to order the landing of U.S. troops to protect the insurgents while they prepared for the annexation of the Hawaiian Islands to the United States by a voluntary treaty of cession.
On January 17th the group declared themselves the Provisional Government with Sanford Dole as its president. Article 31 of the Hawaiian constitution provides, “To the [Queen] belongs the executive power.” Therefore, as the constitutional monarch, the Queen was vested with the faithful execution of Hawaiian law, and it was her duty to ensure that certain insurgents be apprehended by the police for committing the crime of treason, being a violation of Chapter VI of the Penal Code. However, under threat of war by the presence of U.S. troops who were ordered by the U.S. diplomat Stevens to protect the insurgents, the police force, headed by Marshall Charles Wilson, could not apprehend the insurgents without bloodshed between the police and U.S. troops. Later that day, the Queen made the following assignment of executive power under protest, called the Lili‘uokalani assignment:
I, Lili‘uokalani, by the Grace of God, and under the Constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the constitutional Government of the Hawaiian Kingdom by certain persons claiming to have established a Provisional Government of and for this Kingdom.
That I yield to the superior force of the United States of America whose Minister Plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be landed at Honolulu and declared that he would support the said Provisional Government.
Now to avoid any collision of armed forces, and perhaps the loss of life, I do this under protest, and impelled by said force yield my authority until such time as the Government of the United States shall, upon facts being presented to it, undo the action of its representative and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.
Done at Honolulu this 17th day of January, A.D. 1893.
Samuel Parker, Minister of Foreign Affairs.
Wm. H. Cornwell, Minister of Finance.
John. F. Colburn, Minister of the Interior.
A.P. Peterson, Attorney General.
In complete disregard of the Queen’s protest and assignment of executive power, the Provisional Government and Secretary of State James Blaine signed a treaty on February 14, 1893 at Washington, D.C. President Benjamin Harrison submitted the treaty to the United States Senate for ratification in accordance with the U.S. Constitution. The U.S. Presidential election already had taken place in 1892, with Grover Cleveland defeating the incumbent Benjamin Harrison. After his inauguration on March 4, 1893, President Cleveland received the Queen’s protest and assignment from Paul Neumann, former Hawaiian Attorney General, who, by a power of attorney, represented the Queen.
On March 9, 1893, Cleveland withdrew the treaty from the Senate and appointed James H. Blount as Special Commissioner, a former U.S. Representative from Georgia and former Chairman of the House Committee on Foreign Affairs, as special commissioner to investigate and report his findings to Secretary of State Walter Gresham. By accepting the Queen’s temporary assignment of executive power, President Grover Cleveland bound himself and his successors in the office to temporarily administer Hawaiian Kingdom law in accordance with Article 31 of the Hawaiian constitution until the executive power would be returned.
The investigation concluded that the United States diplomat and troops were directly responsible for the illegal overthrow of the Hawaiian government with the ultimate goal of transferring the Hawaiian Islands to the United States. Blount reported that, “in pursuance of a prearranged plan, the Government thus established hastened off commissioners to Washington to make a treaty for the purpose of annexing the Hawaiian Islands to the United States.” The report also detailed United States government actions that violated international laws as well as Hawaiian territorial sovereignty.
With the recent news coverage by the Honolulu Star Advertiser, Perfect Title Company has again reentered mainstream media in the Hawaiian Islands.The video not only provides an accurate history of the formation of the Perfect Title Company and its deliberate and unlawful demise, but also the practical and profound effect it had on the real estate industry.
Since 1893, conveyances of real property could not take place because of the illegal overthrow of the Hawaiian Kingdom government. That government has not been restored, but instead insurgents who were established through United States intervention on January 17, 1893, were unlawfully maintained in power. A clear break in the chain of title originates since January 17th because the notaries public and the registrar of the Bureau of Conveyances were insurgents and not vested with authority under the Hawaiian Kingdom government.
Title Companies during escrow should have revealed this information to the lenders and buyers, but instead concealed it. Lenders and buyers, however, were protected by title insurance. Before the lender agrees to accept the borrowers property, as collateral to ensure the repayment of the loan, which is called a mortgage, the borrower is required to purchase title insurance in the amount of the money borrowed for the protection of the lender. This requirement is in the event there is a defect in the borrower’s title, which would render the mortgage void, the lender has insurance to cover the remaining amount of the unsecured loan.
Title insurance is an insurance policy that ensures the accuracy of the title search done by a title company. Covered risks in the title insurance policy are defective notaries public and recordation of the deed of conveyance. Title insurance that protects the lender is called a “loan policy,” and for the protection of the homeowner it is called an “owner’s policy.”
All land titles in the Hawaiian Islands are defective.
Professor Andrew Clapham has notified Dr. Keanu Sai that a team at the Geneva Academy of International Humanitarian Law and Human Rights will be reviewing information on the occupation of the Hawaiian Kingdom for inclusion in the Academy’s War Report. The War Report is a comprehensive global analysis of armed conflicts under international law, which includes military occupations. In 2012, the War Report identified at least 37 armed conflicts, of which 9 are military occupations, on the territory of 24 States for 2012.
The War Report: 2012 was launched on December 10, 2013, which was Human Rights Day, with an interactive panel hosted by journalist Xavier Colin at the Geneva Institute’s Auditorium Pictet. H.E. Ambassador Jürg Lindemann, Deputy Director of the Directorate of International Law at the Swiss Federal Department of Foreign Affairs, made opening remarks. Panelists included Andrew Clapham, Professor at the Graduate Institute and Director of the Geneva Academy, Keith Krause, Professor at the Graduate Institute, and Programme Director of the Small Arms Survey, Julie de Rivero, Geneva Advocacy Director, Human Rights Watch, and H.E. Ambassador Jürg Lindemann.
The War Report is published by Oxford University Press and identifies “armed conflicts” according to international humanitarian law, which includes the 1907 Hague Regulations and the 1949 Geneva Conventions and their 1977 Additional Protocols. Only accused violators in conflicts classified as such can be prosecuted for war crimes. The Fourth Geneva Convention not only applies to “armed conflicts” but also “to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance (Article 2).” The Hawaiian Kingdom acceded to the Fourth Geneva Convention on January 14, 2013, and consequently became a “High Contracting Party.”
“The classification of an armed conflict under international law is an objective legal test and not a decision left to national governments or any international body, not even the UN Security Council,” says Andrew Clapham, Director of the Academy and Graduate Institute Professor in International Law.
“It is not always clear when a situation is an armed conflict, and hence when war crimes can be punished,” added Professor Clapham. “The War Report aims to change this and bring greater accountability for criminal acts perpetuated in armed conflicts.”
The War Report for 2012, the first edition of what will become an annual publication, aims to make this important legal analysis more accessible for governments, policy makers, the United Nations, academics, NGOs, and journalists. Oxford University Press has provided online access to Chapter 1.
January 13, 2014 Honolulu Star-Advertiser Newspaper Front Page Story by Rob Perez
Several years after he stopped making his mortgage payments, Kale Gumapac was evicted from his foreclosed Hawaii island home.
Days before Thanksgiving, sheriff’s deputies escorted a handcuffed Gumapac — he was arrested on a trespassing charge — from the Hawaiian Paradise Park property he had called home for more than a decade.
Gumapac said he stopped making his $3,000-a-month payments about five years ago because his lender couldn’t produce the original note for his loan, raising questions about who actually had title to the property.
After his mortgage subsequently was acquired by another bank but well before he was evicted in November, Gumapac switched strategies and embraced a controversial legal argument that has surfaced in a small but growing number of foreclosure cases over the past several years.
He argued that Hawaii courts are unlawfully constituted, dating from the illegal overthrow of the Hawaiian monarchy in 1893. He also maintained that Hawaii land titles have been defective since the overthrow.
Like dozens of other Hawaii residents, Gumapac made those arguments based on the claim — repeatedly rejected by state and federal judges — that the Hawaiian kingdom still exists and the U.S. is illegally occupying the islands.
Gumapac even has a company that helps homeowners make the same kingdom argument to file defective-title claims.
Many inside and outside the real estate industry scoff at the argument, saying it is preposterous, ignores more than 100 years of history and has been discredited numerous times in the judicial arena.
“Every court that has considered this has found that the argument has no merit whatsoever,” said attorney David Rosen, who represents lenders. “These people are selling a scam.”
Gumapac and other proponents point to the same historical record to justify their position, citing, among other things, an 1893 executive agreement between Queen Liliuokalani and President Grover Cleveland that called for the eventual restoration of the kingdom government. They said the agreement obligated Cleveland’s successors as well.
State and federal judges, however, consistently have rejected the notion that the kingdom still exists or kingdom law still applies in Hawaii. Appellate courts have done the same.
Not even advocates of the kingdom defense can cite a single case in which a homeowner ultimately prevailed.
Yet more homeowners appear to be adopting the legal strategy, according to attorneys and others who deal with such matters.
One recent case involved Office of Hawaiian Affairs Trustee Dan Ahuna, who in a May court filing asked a state judge to dismiss his lender’s foreclosure lawsuit. Ahuna argued that the state court lacked jurisdiction because the kingdom still exists.
In September the court rejected Ahuna’s argument. Since then he and his wife have had their loan modified through the U.S. government’s foreclosure prevention program, according to Ahuna, who said financial difficulties, not personal beliefs, prevented them from making their mortgage payments when the 2008 foreclosure complaint was filed.
“I simply underestimated the scale and complexity of using this particular legal argument to improve my ability to avoid foreclosure,” Ahuna said in a written response to the Honolulu Star-Advertiser, emphasizing that he was speaking as an individual and not as an OHA trustee.
Dexter Kaiama, a Kailua lawyer, says that over the past three years he has taken on more than 150 clients whose underlying defense questions the validity of local courts. The majority of those clients, including Gumapac, were homeowners already in the midst of foreclosure proceedings, according to Kaiama.
Gumapac, whose Big Island company is called Laulima Title Search and Claims, said he continues to get new clients even since his November eviction. Laulima now has about 300 total clients, and Gumapac charges $3,900 for his services, he said.
While the kingdom-still-exists argument has not prevailed in court, some homeowners seem to be benefiting in one significant way: They have stayed in their homes long after they stopped paying their mortgages, thanks largely to the slow pace in which such cases move through a strained judicial system.
Real estate officials say Gumapac’s challenge of the court’s authority likely contributed to the prolonged period he was able to stay in his home after defaulting on the mortgage.
Kaiama said dozens of eviction orders are pending against his clients, and he suspects the legal argument that the orders are unlawful have contributed to delays in enforcing them. A judge presiding over one of Kaiama’s foreclosure cases recently asked the attorney to provide more information on the jurisdiction issue.
Gumapac said he stopped paying his mortgage when his lender was unable to provide the original copy of his loan note and couldn’t answer certain questions about the property’s title. At the time, the nation was in the midst of a mortgage crisis that included a dramatic rise in foreclosures and growing questions about unfair and predatory practices by lenders.
“I wasn’t trying to run away from my obligation to pay that debt,” Gumapac said. “I was following my contract.”
After Deutsche Bank acquired Gumapac’s mortgage, he learned of research that called into question the validity of all Hawaii land titles since the 1893 overthrow. Proponents of that position say that titles filed since then are invalid because they were not processed under kingdom law. Gumapac became a believer.
Armed with such research, he asked his lender to file a title insurance claim, which he said he believed the bank was obligated to do under terms of his mortgage agreement. Gumapac said he was expecting Deutsche Bank to pursue a claim, which would have uncovered the defect and, under terms of the insurance policy, triggered the insurer to pay the debt.
But lenders generally have considered such kingdom-related title claims frivolous.
In Gumapac’s case, Deutsche Bank didn’t pursue an insurance claim and proceeded with the foreclosure, he said. In December 2011 the bank filed a so-called ejectment complaint seeking his eviction. Two years later Gumapac was forced out.
An attorney for Deutsche Bank didn’t respond to a request for comment.
One of the more interesting aspects of the rise in the kingdom-related foreclosure defense is a political scientist who is a key advocate of it.
David Keanu Sai, who has a master’s degree in international relations and a doctorate in political science from the University of Hawaii, serves as a consultant to Gumapac’s company and to Kaiama.
Sai also has taken his arguments to various international organizations, including the president’s office of the United Nations General Assembly, the International Criminal Court and the International Committee of the Red Cross in Switzerland, where he was joined last month by Kaiama. They are pursuing cases alleging war crimes and the illegal occupation of the islands by the United States.
Sai made headlines in the mid-1990s as co-founder of Perfect Title Co., which used kingdom law to claim existing land titles in Hawaii were invalid — essentially the same arguments being made today in the foreclosure cases. The company riled the real estate industry because it filed reports at the Bureau of Conveyances casting clouds on titles.
Perfect Title shut down in 1997 after the state seized its records as part of an investigation. Sai eventually was convicted of first-degree attempted theft, a felony, for helping a couple try to reclaim an Aiea home they lost through foreclosure. He received five years’ probation.
Though Sai makes the same basic points today that he did in his Perfect Title days, his argument is more refined now, benefiting from the advanced degrees he obtained since then. Even some of his harshest critics say he is more persuasive.
Sai said it’s not unexpected that Hawaii courts refuse to validate the kingdom argument, saying that one judge even acknowledged he would be committing political suicide if he did so.
But the historical evidence is overwhelming and has yet to be refuted, Sai added, and he expects justice eventually to prevail in the international arena, where international law applies.
“We have to be patient but patience is not a weakness,” Sai said.
Asked about Sai’s case, a spokeswoman for the U.N. president’s office said in an email to the Star-Advertiser that a sovereign matter is beyond the purview of the office.
The International Criminal Court did not respond to Star-Advertiser emails seeking comment.
Rosen, the lender attorney, is upset that the state and the courts have done nothing to prevent the discredited kingdom arguments from continuing to be made, giving homeowners false hope that their properties might be saved. People who charge homeowners to provide such a defense should be prosecuted or sanctioned, he said.
“How are they allowed to continue doing this?” Rosen asked. “It’s nothing more than a fraud.”
On December 17, 2013, Dr. David Keanu Sai and attorney Dexter Kaiama had a meeting with Stephane Ojeda, Deputy Head of Operations for the Americas for the International Committee of the Red Cross (ICRC) at the ICRC’s headquarters in Geneva, Switzerland. The ICRC is a humanitarian organization that has a specific mandate in the 1949 Geneva Conventions to provide protection for civilians during international conflicts and occupations. At a Conference on the Politics of Humanitarianism in the Occupied Territories held in Israel in 2004, Mr. Ojeda described the ICRC as “guardians of international humanitarian law” and independent of political influences.
The purpose of the meeting was to bring to the attention of the ICRC the severity of an illegal and prolonged occupation of the Hawaiian Islands and the violation of the rights of protected persons in the Hawaiian Islands as defined under the Fourth Geneva Convention and the Protocol (1) Additional to the Geneva Conventions of 12 August 1949, as well as United States citizens, who are not protected persons under the Convention and Protocol, but do have rights protected under Title 18, United States Code, §2441 (War Crimes Act) that has force in territories occupied by the United States. These violations include deprivation of a fair and regular trial, pillaging of real and personal property, and unlawful confinement. Mr. Kaiama has represented over 150 clients in both Federal and State of Hawai‘i courts of the Hawaiian Islands centering on these violations. The majority of these clients are also clients of Laulima Title Search & Claims, LLC, to include the company’s president, Mr. Kale Gumapac.
In addition, Mr. Kaiama submitted a formal request to the ICRC for assistance in accordance with Article 30 of the Fourth Geneva Convention. Article 30 states that “Protected persons shall have every facility for making application to…the International Committee of the Red Cross.” According to the ICRC, “The right in question is an absolute right, possessed by all protected persons both in the territory of a Party to the conflict and in occupied territory, whether they are not detained, or are internees, persons placed in assigned residence or detained. The communication may have a wide variety of causes, and it may take the form of an application, suggestion, a complaint, a protest, a request for assistance, etc.; it is not even necessary for an infringement of the Convention on the part of the authorities to have occurred. The right of communication may be exercised under all circumstances.” The Hawaiian Kingdom is a party to the Fourth Geneva Convention and Protocol 1.
After Dr. Sai provided a brief overview of Hawai‘i’s status as an independent State under an illegal and prolonged occupation, Mr. Ojeda admitted he was not aware of Hawai‘i’s history despite the ICRC’s working relationship with the United States Pacific Command. Mr. Ojeda was also fascinated by the online news coverage provided Big Island Video News on the subject of occupation and war crimes. Later that day, Mr. Ojeda contacted Dr. Sai and Mr. Kaiama in order to schedule a follow up meeting with the ICRC’s legal advisor, Dr. Tristan Ferraro, the following day. Dr. Ferraro’s legal expertise is on occupations.
The meeting with Dr. Ferraro lasted 2.5 hours, and, like Mr. Ojeda, Dr. Ferraro was not aware of Hawai‘i’s legal and political history and its place in international law. The focus of the meeting centered on Hawai‘i’s status as an independent State and whether or not international law provided for its continued existence or its demise. In order for the ICRC to exercise its mandate to ensure protection for civilians during a prolonged occupation as requested by Mr. Kaiama, the ICRC needs to determine how the intervention will take place. Dr. Ferraro assured Mr. Kaiama that he would complete his recommendation by March 2014, and report his conclusion to Mr. Ojeda. Dr. Sai provided his legal brief titled “The Continuity of the Hawaiian State and the Legitimacy of the acting Government of the Hawaiian Kingdom,” and other pertinent documents to assist Dr. Ferraro in his review. Dr. Sai specifically drew attention to a section of the legal brief that states:
“any claim to State continuity will be dependent upon the establishment of two legal facts: first, that the State in question existed as a recognized entity for purposes of international law at some relevant point in history; and, secondly, that intervening events have not been such as to deprive it of that status. It should be made very clear, however, that the issue is not simply one of ‘observable’ or ‘tangible facts,’ but more specifically of ‘legally relevant facts.’ It is not a case, in other words, simply of observing how power or control has been exercised in relation to persons or territory, but of determining the scope of ‘authority,’ which is understood as ‘a legal entitlement to exercise power and control.’ Authority differs from mere control by not only being essentially rule governed, but also in virtue of the fact that it is not always entirely dependent upon the exercise of that control.”
As the meeting came to a close, Dr. Sai provided Dr. Tristan the Hawaiian Kingdom’s formal request to have the ICRC assist in securing a Protecting Power that is neutral and not a party to the conflict in accordance with Article 5(3) & (5) of Protocol 1. A Protecting Power is a country that would serve as an intermediary between the Hawaiian Kingdom and the United States in order to assure compliance with the Fourth Geneva Convention, Protocol 1 and international humanitarian law. If the ICRC is not able to secure a Protecting Power it has to offer itself as a substitute. According to the ICRC, a timetable for a decision will be no later than 60 days.
Go to this link to view Big Island Video News feature story: Defected – Testing Hawaiian Sovereignty
In Hawai‘i there is a political trend called the sovereignty or independence movement that began in the 1970s. This political wing, which grew out of the Hawaiian cultural renaissance movement, is comprised of diverse groups of aboriginal Hawaiians working toward the goal or aspiration of achieving sovereignty or independence. These groups vary in ideologies and organization, but all of them have been operating on the false assumption that the United States has independence and sovereignty over Hawai‘i and therefore the goal is separation or secession through a process commonly referred to as self-determination. According to the United Nations, self-determination is the right of the people of a non-sovereign nation to choose their own form of governance separate from the foreign State that has the sovereignty and independence under international law.
Actions taken by these groups are centered on political activism that have taken many forms at both the national and international levels. This political trend has led to confusion regarding Hawai‘i’s true status and basic terminology and the application of the terms “sovereignty” and “independence.” Also adding to the confusion is the psychological effects of “presentism” and “confirmation bias.” Presentism is “an attitude toward the past dominated by present-day attitudes and experience,” and confirmation bias is “a tendency to search for or interpret information in a way that confirms one’s preconceptions, leading to statistical errors.”
Sovereignty by definition is absolute authority exercised by a State over its territory, territorial seas, and its nationals abroad, which is independent of other States and their authority over their territory, territorial seas, and its nationals abroad. Authority over a State’s nationals abroad is called personal supremacy, and authority over territory is territorial sovereignty. Therefore, sovereignty is associated with political independence and the terms are often interchangeable.
The term State, under international law, means a political unit that has a centralized government, a resident population, a defined territory and the ability to enter and maintain international relations with other States. A State is a legal person in international law that possesses rights and obligations. A nation, however, is a group of people bound together by a common history, language and culture. Every State is a nation or a combination of nations, but not every nation or nations comprise a State. Since the nineteenth century, a State comes into existence only if other States have recognized it, which represents the entirety of the international order. In other words, a few States may have given explicit recognition, but the majority hasn’t. Until the majority of States have provided recognition to the nation or group of nations, international law does not recognize the new State because its independence over its territory, territorial seas, and its nationals abroad has not been acknowledged by the international community of States.
The most recent example of a sovereignty movement by a nation seeking State sovereignty and independence and ultimately achieving it was Palestine. On November 29, 2012, the member States of the United Nations voted overwhelmingly to recognize Palestinian Statehood. Up to this date, Palestine was a nation seeking sovereignty and independence, which is called self-determination. Once a State has been recognized the recognizing States cannot deny it later, and there exists a rule of international law that preserves the independence of an already recognized State, unless that State has relinquished its independence and sovereignty by way of a treaty or customary practice recognized by international law.
According to the Permanent Court of International Justice (PCIJ), in the 1927 seminal case S.S. Lotus between France and Turkey, “International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions (treaties) or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.” In other words, once a State is acknowledged as being independent it will continue to be independent unless proven otherwise. Therefore, the State will still have sovereignty and independence over its territory, territorial seas, and its nationals, even when its government has been overthrown and is militarily occupied by a foreign State. During occupations the sovereignty remains vested in the occupied State, but the authority to exercise that sovereignty is temporarily vested in the occupying State, which is regulated by the Hague and Geneva Conventions, and international humanitarian law.
When the PCIJ stated that restrictions upon the independence of States could not be presumed, it did not mean that international law could not restrict States in its relations with other States that are also independent. In the Lotus case, the PCIJ explained, “Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from convention (treaty).” The PCIJ continued, “In these circumstances, all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.”
The United States Supreme Court in 1936 recognized this restriction and limitation of a State’s authority in international law in U.S. v. Curtiss-Wright Corp. The U.S. Supreme Court stated, “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens…, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law. As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign.”
In 2001, the Permanent Court of Arbitration (PCA), in its dictum in Larsen v. Hawaiian Kingdom, verified Hawai‘i to be an independent State. In its arbitral award, the PCA stated, “in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties.” As an independent State, international law provided a fundamental restriction on all States, to include the United States of America, that it may “not exercise its power in any form in the territory of another State.”
Since 1898, the United States has unlawfully exercised its power within the territory of the Hawaiian Kingdom militarily, legislatively and economically. On July 7, 1898, the United States Congress enacted a joint resolution unilaterally annexing the Hawaiian Kingdom over the protests of Hawai‘i’s Queen and people. Two years later, Congress enacted another law by creating a territorial government that took over the governmental infrastructure of the Hawaiian Kingdom that was previously high jacked by insurgents since 1893 with the support of the United States military. In 1959, the Congress again passed legislation transforming the territorial government into the 50th state of the American Union. Under both international law and United States constitutional law, these Congressional actions have no force and effect in Hawai‘i. Despite the propaganda and lies that have been perpetuated since the beginning of the occupation that Hawai‘i was annexed by a treaty, the Hawaiian Kingdom continues to be an independent State that still retains its personal supremacy over its nationals abroad, and territorial sovereignty over its territory and territorial seas. The exercising of this authority, however, is limited only by the Hague and Geneva Conventions and the fact of an illegal and prolonged occupation.
A common statement made by sovereignty advocates is that the people have to collectively decide on the question of sovereignty and that it should be put to a vote. This is incorrect if Hawai‘i is already a sovereign and independent State. This prospect is valid only if Hawai‘i is a nation seeking sovereignty and independence, which is commonly referred to as “nation-building” under a people’s right to self-determination, but Hawai‘i is not. Self-determination and nation-building is the United Nations process by which sovereignty and independence is sought, but it is not guaranteed. This process provides to the people of a non-sovereign nation who have been colonized by a foreign State to choose whether or not they want independence from the foreign State, free association as an independent State with the foreign State, or total incorporation into the foreign State.
Recently, Maohi Nui (French Polynesia) has been reaffirmed by the United Nations as having a right to choose independence from France, free association with France, or total incorporation into France. Maohi Nui is by definition a sovereignty movement and education is key to ensuring that the people decide Maohi Nui’s status through decolonization with full knowledge, and not be influenced or coerced by political activism that is French driven. It won’t be easy for Maohi Nui, but the process of exercising self-determination should be fair under United Nations supervision and in line with General Assembly resolutions.
If other independent States cannot affect or change the independence of an established State and its sovereignty under international law, how can Hawai‘i’s people believe they can do what States can’t? Because the Hawaiian Kingdom continues to exist under international law as an independent State, not only is the sovereignty movement rendered irrelevant, but also the status of Hawai‘i as an occupied State renders the State of Hawai‘i government and other federal agencies in the Hawaiian Islands self-proclaimed. It is within this international legal framework that actions taken by Federal government officials, State of Hawai‘i government officials, and County government officials are being reported to international authorities for war crimes under the Hague and Geneva Conventions, and the Rome Statute that established the International Criminal Court.
Re-education is crucial for Hawai‘i’s people and the world on the reality that Hawai‘i is an already independent and sovereign State that has been under an illegal and prolonged occupation. Before restoration of the de jure Hawaiian government takes place in accordance with the 1893 executive agreements, international law mandates that the occupying Power must establish a military government in order to administer Hawaiian Kingdom law (Article 43, Hague Convention, IV) and to also begin the withdrawal of all military installations from Hawaiian territory (Article 2, Hague Convention, V). This is the first and primary step toward transition.
The following terms and definitions are from the Hawaiian history textbook “Ua Mau Ke Ea-Sovereignty Endures.”
Independent State—A state that has absolute and independent legal and political authority over its territory to the exclusion of other states. Once recognized as independent, the state becomes a subject of international law. According to United States common law, an independent State is a people permanently occupying a fixed territory bound together by common law habits and custom into one body politic exercising, through the medium of an organized government, independent sovereignty and control over all persons and things within its boundaries, capable of making war and peace and of entering into international relations with other communities around the globe.
Sovereignty—Supreme authority exercised over a particular territory. In international law, it is the supreme and absolute authority exercised through a government, being independent of any other sovereignty. Sovereignty, being authority, is distinct from government, which is the physical body that exercises the authority. Therefore, a government can be overthrown, but the sovereignty remains.
Colonization—Colonization is the building and maintaining of colonies in one territory by people from another country or state. It is the process, by which sovereignty over the territory of a colony is claimed by the mother country or state, and is exercised and controlled by the nationals of the colonizing country or state. Though colonization there is an unequal relationship between the colonizer and the native populations that reside within its colonial territory. These native populations are referred to as indigenous peoples and form the basis of the 2007 United Nations Declaration on the Rights of Indigenous Peoples.
De-colonization—De-colonization is the political process by which a non-self-governing territory under the sovereignty of the colonizing state or country becomes self-governing. According to the United Nations Resolution 1541 (XV), Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73 e of the Charter, “A Non-Self-Governing Territory can be said to have reached a full measure of self government by: (a) Emergence as a sovereign independent State; (b) Free association with an independent State; or (c) Integration with an independent State.”
Self-determination—A principle in international law that nations have the right to freely determine their political status and pursue their economic, social and cultural development. The international community first used the term after World War I where the former territorial possessions of the Ottoman Empire and Germany were assigned to individual member countries or states of the League of Nations for administration as Mandate territories. The function of the administration of these territories was to facilitate the process of self-determination whereby these territories would achieve full recognition as an independent and sovereign state. After World War II, territories of Japan and Italy were added and assigned to be administered individual member countries or states of the United Nations, being the successor of the League of Nations, and were called Trust territories. Also added to these territories were territories held by all other members of the United Nations and called Non-self-governing territories. Unlike the Mandate and Trust territories, they were not assigned to other member countries or states for administration, but remained under the original colonial authority who reported yearly to the United Nations on the status of these territories. Self-determination for Non-self-governing territories had three options: total incorporation into the colonial country or state, free association with the colonial country or state, or complete independence from the colonial country or state. Self-determination for indigenous peoples does not include independence and is often referred to as self-determination within the country or state they reside in.
Sovereignty movement—A political movement of a wide range of groups in the Hawaiian Islands that seek to exercise self-determination under international law as a Non-self-governing unit, or to exercise internal self-determination under the 2007 United Nations Declaration on the Rights of Indigenous Peoples. The commonality of these various groups is that their political platforms are based on aboriginal Hawaiian identity and culture and use of the United Nations term indigenous people. The movement presumes that the Hawaiian Kingdom and its sovereignty were overthrown by the United States January 17th 1893, and therefore the movement is seeking to reclaim that sovereignty through de-colonization. The movement does not operate on the presumption of continuity of the Hawaiian Kingdom as an independent state and the law of occupation, but rather on the aspiration of becoming an independent state or some form of internal self-determination within the laws of the United States.
International law provides an appropriate lens to the political and legal history of the Hawaiian Islands, which has been relegated under U.S. sovereignty and the right to internal self-determination of indigenous peoples. There are inherent contradictions and divergence of thought and direction between the concepts of Hawaiian State sovereignty and Hawaiian indigeneity.
On January 18, 2001, the U.S. National Security Council made known its position on indigenous peoples to its delegations assigned to the “U.N. Commission on Human Rights,” the “Commission’s Working Group on the United Nations (UN) Draft Declaration on Indigenous Rights,” and to the “Organization of American States (OAS) Working Group to Prepare the Proposed American Declaration on the Rights of Indigenous Populations.” The Council directed these delegates to “read a prepared statement that expresses the U.S. understanding of the term internal ‘self-determination’ and indicates that it does not include a right of independence or permanent sovereignty over natural resources.”
The Council also directed these delegates to support the use of the term internal self determination in both the U.N. and O.A.S. declarations on indigenous rights, and defined Indigenous Peoples as having “a right of internal self-determination.” By virtue of that right, “they may negotiate their political status within the framework of the existing nation-state and are free to pursue their economic, social, and cultural development. This resolution sought to constrain the growing political movement of indigenous peoples “who aspire to rule their territorial homeland, or who claim the right to independent statehood under the doctrine of self-determination of peoples.”
The legal definition of a colony is “a dependent political economy, consisting of a number of citizens of the same country who have emigrated therefrom to people another, and remain subject to the mother country.” According to Albert Keller, a colonial studies scholar, colonization is “a movement of population and an extension of political power,” and therefore must be distinguished from migration.
Colonization is an extension of sovereignty over territory not subject to the sovereignty of another State, while migration is the mode of entry into the territory of another sovereign State. The “so-called ‘interior colonization’ of the Germans [within a non-German State] would naturally be a misnomer on the basis of the definition suggested.” This would suggest that the migration of United States citizens into the territory of the Hawaiian Kingdom constituted American colonization and somehow resulted in the creation of an American colony.
The history of the Hawaiian Kingdom has fallen victim to the misuse of this term by contemporary scholars in the fields of post-colonial and cultural studies. These scholars have lost sight of the original use and application of the terms colony and colonization, and have remained steadfast in their conclusion that the American presence in the Hawaiian Islands was and is currently colonial in nature. This erroneous use of the word has caused much confusion and complicates agreement on legal and political solutions.
Slavoj Zizek, a philosophy scholar, critically suggests that in post-colonial studies, the use of the term colonization “starts to function as a hegemonic notion and is elevated to a universal paradigm, so that in relations between the sexes, the male sex colonizes the female sex, the upper classes colonize the lower classes, and so on.” He argues that in cultural studies it “effectively functions as a kind of ersatz-philosophy, and notions are thus transformed into ideological universals.
In the legal and political realm, the fundamental difference between the terms colonization/de-colonization and occupation/de-occupation, is that the colonized must negotiate with the colonizer in order to acquire state sovereignty, e.g. India from Great Britain, Rwanda from Belgium, and Indonesia from the Dutch. Under the latter, State sovereignty is presumed and not dependent on the will of the occupier, e.g. Soviet occupation of the Baltic States, and the American occupation of Afghanistan and Iraq. Colonization/de-colonization is a matter that concerns the internal laws of the colonizing State and presumes the colony is not sovereign, while occupation/de-occupation is a matter of international law relating to already existing sovereign States. Matthew Craven an international law scholar who has done extensive research on the continuity of the Hawaiian State, concludes:
“For the Hawaiian sovereignty movement, therefore, acceding to their identification as an indigenous people would be to implicitly accede not only to the reality, but also to the legitimacy, of occupation and political marginalization. All they might hope for at that level is formal recognition of their vulnerability and continued political marginalization rather than the status accorded under international law to a nation belligerently occupied.”
Hawaiian State sovereignty and the international laws of occupation not only presume the continuity of Hawaiian sovereignty, but also provide the legal framework for regulating the occupier, despite its history of non-compliance. It is clear that the U.S. government wrongfully administered the Hawaiian Islands since 1898 as if it were a colonial possession for the purpose of concealing a gross violation of international law. Therefore, colonialism must be viewed as a tool used by the occupant to commit fraud in an attempt to extinguish the memory of sovereignty and the legal order of the occupied State.
Self-determination, inherent sovereignty and indigenous peoples are terms fundamentally linked not just to the concept, but to the political and legal process of de-colonization, which presupposes sovereignty to be an aspiration and not a legal reality. The effects of colonization have affected the psychological and physiological make-up of many native Hawaiians, but these effects must be reinterpreted through the lens of international law. Colonial treatment is the evidence of the violation of the law, not the political basis of a sovereignty movement. As such, these violations should serve as the measurement for reparations and compensation to a people who, against all odds, fought and continue to fight to maintain their dignity, health, language and culture, and above all, their rightful and lawful sovereign status.
In 2009, a revised edition of Nation Within by Coffman was published with a significant change in its subtitle. In the original version published in 1998, the subtitle reads “The Story of America’s Annexation of the Nation of Hawai‘i,” but the revised edition now reads “The History of the American Occupation of Hawai‘i.” Coffman explains:
“In the book’s subtitle, the word Annexation has been replaced by the word Occupation, referring to America’s occupation of Hawai‘i. Where annexation connotes legality by mutual agreement, the act was not mutual and therefore not legal. Since by definition of international law there was no annexation, we are left then with the word occupation. In making this change, I have embraced the logical conclusion of my research into the events of 1893 to 1898 in Honolulu and Washington, D.C. I am prompted to take this step by a growing body of historical work by a new generation of Native Hawaiian scholars. Dr. Keanu Sai writes, ‘The challenge for…for the fields of political science, history, and law is to distinguish between the rule of law and the politics of power.’ In the history of Hawai‘i, the might of the United States does not make it right.”
The International Committee of the Red Cross (ICRC) is a respected private organization comprised of Swiss citizens that intervenes, as a neutral party, in conflicts and occupations where international humanitarian law is being violated. Article 10 of the 1949 Geneva Convention, IV, Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) acknowledges the ICRC’s right it may “undertake for the protection of civilian persons and for their relief.”
The ICRC plays an important role as a non-government organization because it is not confined or limited by the politics of governments. According to its mission statement, the ICRC “is an impartial, neutral and independent organization whose exclusively humanitarian mission is to protect the lives and dignity of victims of armed conflict and other situations of violence and to provide them with assistance.” This mission statement is drawn from Article 30 of the Fourth Geneva Convention, which provides “Protected persons shall have every facility for making application to the…International Committee of the Red Cross…as well as to any organization that might assist them.”
In 1958, the ICRC published a commentary of the Fourth Geneva Convention. The following commentary is made in reference to Article 47—Inviolability of Rights. Article 47 states, “Protected persons who in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, in to the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.”
1. General—The position of Article 47 at the beginning of the Section dealing with occupied territories underlines the cardinal importance of the safeguard it proclaims. During the Second World War whole populations were excluded from the application of the laws governing occupation and were thus denied the safeguards provided by those laws and left at the mercy of the Occupying Power. In order to avoid a repetition of this state of affairs, the authors of the [Fourth Geneva] Convention made a point of giving these rules an absolute character. They will be considered in the following pages in the order in which they occur in the Convention.
2. Changes in the institutions or the government of the occupied territory—During the Second World War Occupying Powers intervened in the occupied countries on numerous occasions and in a great variety of ways, depending on the political aim pursued; examples are changes in constitutional forms or in the form of government, the establishment of new military or political organizations, the dissolution of the State, or the formation of new political entities.
International law prohibits such actions, which are based solely on the military strength of the Occupying Power and not on a sovereign decision by the occupied State. Of course the Occupying power usually tried to give some colour of legality and independence to the new organizations, which were formed in the majority of cases with the co-operation of certain elements among the population of the occupied country, but it was obvious that they were in fact always subservient to the will of the Occupying Power. Such practices were incompatible with the traditional concept of occupation (as defined in Article 43 of the Hague Regulations of 1907) according to which the occupying authority was to be considered as merely being a de facto administrator.
This provision of the Hague Regulations is not applicable only to the inhabitants of the occupied territory; it also protects the separate existence of the State, its institutions and its laws. This provision does not become in any way less valid because of the existence of the [Fourth Geneva] Convention, which merely amplifies it so far as the question of the protection of civilians is concerned.
Interference by the Protecting Power with the institutions or government of an occupied country has the effect of transforming the country’s structure and organizations more or less radically. Such a transformation may make the position of the inhabitants worse, and the present Article is intended to prevent from harming protected persons measures taken by the Occupying Power with a view to restoring and maintaining law and order. It does not expressly prohibit the Occupying Power from modifying the institutions or government of the occupied territory. Certain changes might conceivably be necessary and even an improvement; besides, the text is question is of an essentially humanitarian character; its object is to safeguard human beings and not to protect political institutions and government machinery of the States as such. The main point, according to the [Fourth Geneva] Convention, is that changes made in the international organization of the State must not lead to protected persons being deprived of the rights and safeguards provided for them. Consequently it must be possible for the Convention to be applied to them in its entirety, even if the Occupying Power has introduced changes in the institutions or government of the occupied territory.
3. Agreement concluded between the authorities of the occupied territory and the Occupying Power—Agreements concluded with the authorities of the occupied territory represent a more subtle means by which the Occupying Power may try to free itself from the obligations incumbent on it under occupation law; the possibility of concluding such agreements is therefore strictly limited by Article 7, paragraph 1, and the general rule expressed there is reaffirmed by the present provision. It may thus be regarded as a provision applying the safeguards embodied in Article 7, which are valid for the whole [Fourth Geneva] Convention; reference should therefore be made to the comments on that Article.
It should be noted, however, that the Diplomatic Conference wished to reaffirm that general rule by re-stating it at the beginning of the chapter dealing with occupied territory for a particular reason; because there is in this case a particularly great danger of the Occupying Power forcing the Power whose territory is occupied to conclude agreements prejudicial to protected persons. Cases have in fact occurred where the authorities of an occupied territory have, under pressure from the Occupying Power, refused to accept supervision by a Protecting Power, banned the activities of humanitarian organizations and tolerated the forcible enlistment or deportation of protected persons by the occupying authorities. Such stipulations are in flagrant contradiction with Articles 9, 39 and 51 of the [Fourth Geneva] Convention and are consequently strictly forbidden.
Lastly it will be noted that the same clause applies both to cases where the lawful authorities in the occupied territory have concluded a derogatory agreement with the Occupying Power and to cases where that Power has installed and maintained a government in power.
4. Annexation—The occupation of territory in wartime is essentially a temporary, de facto situation, which deprives the occupied Power of neither its statehood nor its sovereignty; it merely interferes with its power to exercise its rights. That is what distinguishes occupation from annexation, whereby the Occupying Power acquires all or part of the occupied territory and incorporates it in its own territory.
Consequently occupation as a result of war, while representing actual possession to all appearances, cannot imply any right whatsoever to dispose of territory. As long as hostilities continue the Occupying Power cannot therefore annex the occupied territory, even if it occupied the whole of the territory concerned. A decision on that point can only be reached in the peace treaty. That is a universally recognized rule which is endorsed by jurists and confirmed by numerous rulings of international and national courts.
And yet the Second World War provides us with several examples of “anticipated annexation,” as a result of unilateral action on the part of the victor to dispose of territory he had occupied. The population of such territories, which often covered a wide area, did not enjoy the benefit of the rules governing occupation, were without the rights and safeguards to which they were legitimately entitled, and were thus subjected to whatever laws or regulations the annexing State wished to promulgate.
Aware of the extremely dangerous nature of such proceedings, which leave the way open to arbitrary actions and decisions, the Diplomatic Conference felt it necessary to stipulate that actions of this nature would have no effect on the rights of protected persons, who would, in spite of them, continue to be entitled to the benefits conferred by the Convention.
It will be well to note that the reference to annexation in this Article cannot be considered as implying recognition of this manner of acquiring sovereignty. The preliminary work on the subject confirms this. In order to bring out more clearly the unlawful character of annexation in wartime, the government experts of 1947 proposed adding the adjective “alleged” before the word “annexation.” Several delegates at the Diplomatic Conference, concerned about the same point, went as far as to propose cutting out the reference to a hypothetical annexation in this Article. The Conference eventually decided to keep it because they considered that these fears were unfounded and also felt that it was wiser to mention such a situation in the text of the Article, in order to be better armed to meet it.
A fundamental principle emerges from the foregoing considerations; an Occupying Power continues to be bound to apply the Convention as a whole even when, in disregard of the rules of international law, it claims during a conflict to have annexed all or part of an occupied territory.
November 28th is the most important national holiday in the Hawaiian Kingdom. It is the day Great Britain and France formally recognized the Hawaiian Islands as an “independent state” in 1843, and has since been celebrated as “Independence Day,” which in the Hawaiian language is “La Ku‘oko‘a.” Here follows the story of this momentous event from the Hawaiian Kingdom Board of Education history textbook titled “A Brief History of the Hawaiian People” published in 1891.
The First Embassy to Foreign Powers—In February, 1842, Sir George Simpson and Dr. McLaughlin, governors in the service of the Hudson Bay Company, arrived at Honolulu on business, and became interested in the native people and their government. After a candid examination of the controversies existing between their own countrymen and the Hawaiian Government, they became convinced that the latter had been unjustly accused. Sir George offered to loan the government ten thousand pounds in cash, and advised the king to send commissioners to the United States and Europe with full power to negotiate new treaties, and to obtain a guarantee of the independence of the kingdom.
Accordingly Sir George Simpson, Haalilio, the king’s secretary, and Mr. Richards were appointed joint ministers-plenipotentiary to the three powers on the 8th of April, 1842.
Mr. Richards also received full power of attorney for the king. Sir George left for Alaska, whence he traveled through Siberia, arriving in England in November. Messrs. Richards and Haalilio sailed July 8th, 1842, in a chartered schooner for Mazatlan, on their way to the United States*
*Their business was kept a profound secret at the time.
Proceedings of the British Consul—As soon as these facts became known, Mr. Charlton followed the embassy in order to defeat its object. He left suddenly on September 26th, 1842, for London via Mexico, sending back a threatening letter to the king, in which he informed him that he had appointed Mr. Alexander Simpson as acting-consul of Great Britain. As this individual, who was a relative of Sir George, was an avowed advocate of the annexation of the islands to Great Britain, and had insulted and threatened the governor of Oahu, the king declined to recognize him as British consul. Meanwhile Mr. Charlton laid his grievances before Lord George Paulet commanding the British frigate “Carysfort,” at Mazatlan, Mexico. Mr. Simpson also sent dispatches to the coast in November, representing that the property and persons of his countrymen were in danger, which introduced Rear-Admiral Thomas to order the “Carysfort” to Honolulu to inquire into the matter.
Recognition by the United States—Messres. Richards and Haalilio arrived in Washington early in December, and had several interviews with Daniel Webster, the Secretary of State, from whom they received an official letter December 19th, 1842, which recognized the independence of the Hawaiian Kingdom, and declared, “as the sense of the government of the United States, that the government of the Sandwich Islands ought to be respected; that no power ought to take possession of the islands, either as a conquest or for the purpose of the colonization; and that no power ought to seek for any undue control over the existing government, or any exclusive privileges or preferences in matters of commerce.” *
*The same sentiments were expressed in President Tyler’s message to Congress of December 30th, and in the Report of the Committee on Foreign Relations, written by John Quincy Adams.
Success of the Embassy in Europe—The king’s envoys proceeded to London, where they had been preceded by the Sir George Simpson, and had an interview with the Earl of Aberdeen, Secretary of State for Foreign Affairs, on the 22d of February, 1843.
Lord Aberdeen at first declined to receive them as ministers from an independent state, or to negotiate a treaty, alleging that the king did not govern, but that he was “exclusively under the influence of Americans to the detriment of British interests,” and would not admit that the government of the United States had yet fully recognized the independence of the islands.
Sir George and Mr. Richards did not, however, lose heart, but went on to Brussels March 8th, by a previous arrangement made with Mr. Brinsmade. While there, they had an interview with Leopold I., king of the Belgians, who received them with great courtesy, and promised to use his influence to obtain the recognition of Hawaiian independence. This influence was great, both from his eminent personal qualities and from his close relationship to the royal families of England and France.
Encouraged by this pledge, the envoys proceeded to Paris, where, on the 17th, M. Guizot, the Minister of Foreign Affairs, received them in the kindest manner, and at once engaged, in behalf of France, to recognize the independence of the islands. He made the same statement to Lord Cowley, the British ambassador, on the 19th, and thus cleared the way for the embassy in England.
They immediately returned to London, where Sir George had a long interview with Lord Aberdeen on the 25th, in which he explained the actual state of affairs at the islands, and received an assurance that Mr. Charlton would be removed. On the 1st of April, 1843, the Earl of Aberdeen formally replied to the king’s commissioners, declaring that “Her Majesty’s Government are willing and have determined to recognize the independence of the Sandwich Islands under their present sovereign,” but insisting on the perfect equality of all foreigners in the islands before the law, and adding that grave complaints had been received from British subjects of undue rigor exercised toward them, and improper partiality toward others in the administration of justice. Sir George Simpson left for Canada April 3d, 1843.
Recognition of the Independence of the Islands—Lord Aberdeen, on the 13th of June, assured the Hawaiian envoys that “Her Majesty’s government had no intention to retain possession of the Sandwich Islands,” and a similar declaration was made to the governments of France and the United States.
At length, on the 28th of November, 1843, the two governments of France and England united in a joint declaration to the effect that “Her Majesty, the queen of the United Kingdom of Great Britain and Ireland, and His Majesty, the king of the French, taking into consideration the existence in the Sandwich Islands of a government capable of providing for the regularity of its relations with foreign nations have thought it right to engage reciprocally to consider the Sandwich Islands as an independent state, and never to take possession, either directly or under the title of a protectorate, or under any other form, of any part of the territory of which they are composed…”
This was the final act by which the Hawaiian Kingdom was admitted within the pale of civilized nations. Finding that nothing more could be accomplished for the present in Paris, Messrs. Richards and Haalilio returned to the United States in the spring of 1844. On the 6th of July they received a dispatch from Mr. J.C. Calhoun, the Secretary of State, informing them that the President regarded the statement of Mr. Webster and the appointment of a commissioner “as a full recognition on the part of the United States of the independence of the Hawaiian Government.”
On November 11, 2013, Dr. David Keanu Sai, as Ambassador-at-large for the acting government of the Hawaiian Kingdom, was invited by the Swiss Diplomats-Zurich Network to present on the status of the Hawaiian Kingdom at the University of Zurich. Dr. Sai was received and introduced as the Ambassador-at-large of the Hawaiian Kingdom with all the diplomatic protocol and etiquette.
The program began promptly at 6:30 pm with an introduction by Dr. Max Schweizer, Executive Director of the Swiss Diplomats-Zurich Network, welcoming everyone in attendance, which included former Swiss Ambassadors and Diplomats, students from the University of Zurich’s Center of Foreign Affairs & Applied Diplomacy, as well as people from the public sector. Dr. Schweizer is Head of the Center of Foreign Affairs & Applied Diplomacy that trains future diplomats from Switzerland and other foreign countries. Dr. Schweizer also introduced Maximilian Stern, Executive Director of foraus, a think-tank for Swiss Foreign Policy, which co-sponsored the event.
At 6:40 pm Professor Niklaus Schweizer, a former Honorary Swiss Consul and current member of the Swiss Diplomats-Zurich Network, provided a short presentation on the historical background of Swiss-Hawaiian relations. Professor Schweizer is also a faculty member at the University of Hawai‘i at Manoa and teaches a college course titled Europeans in the Pacific. Professor Schweizer also provided an incredible link from Huldrych Zwingli (1484-1531), who was a religious leader of the Reformation in Zurich, to John Calvin (1509-1564) who was part of the Reform in Geneva, Switzerland, to the Calvinist missionaries from the United States that arrived on the island of Hawai‘i in 1820. His presentation ended by stating there is a lot more history to Hawai‘i than Waikiki and tourism.
Dr. Sai then followed with his power point presentation Hawai‘i: An American State or a State under American Occupation. The presentation covered the legal and political history of the Hawaiian Kingdom; its treaty with Switzerland, the illegal overthrow; the ensuing illegal and prolonged occupation by the United States; the Protest and Demand filed with the United Nations General Assembly; the Referral filed with the International Criminal Court; the Application Instituting Proceedings at the International Court of Justice with Switzerland named as a defendant; and the ongoing commission of war crimes. A panel discussion immediately followed the presentation.
The panel was comprised of Dr. Sai, Professor Schweizer and Dr. Christian Blickenstorfer, who is President of the Swiss Diplomats-Zurich Network as well as former Swiss Ambassador to the United States, Saudi Arabia, United Arab Emirates, Oman, Yemen, and Germany. Dr. Schweizer moderated the panel. Dr. Blickenstorfer stated that when he visited the Hawaiian Islands while Ambassador to the United States, he clearly saw two versions of the Hawaiian Islands that he didn’t expect. First was the perception that Hawai‘i was the 50th State of the United States and the other was a kingdom with a Palace and the Royal Hawaiian Band. He clearly didn’t understand the distinction until Dr. Sai’s presentation, which he said was very informative and clear. Dr. Schweizer then asked Dr. Sai about his position as Ambassador-at-large and if he could explain to the audience his position and how he was appointed. Dr. Sai responded with a short narrative of how the acting government was established in 1996 utilizing laws of the Hawaiian Kingdom as it existed before the occupation in the provisional and temporary establishment of a Regency that was provided for under the Hawaiian constitution under the legal doctrine of necessity. The panelists and audience understood the application of the doctrine of necessity as it applies to government.
Questions were then taken from the audience that centered on the economy of the Hawaiian Kingdom and how would it look like during and after the occupation ends. Another question was by a Swiss Human Rights activist asking for Dr. Sai’s response to actions taken by Mr. Leon Siu who is trying to get Hawai‘i listed on the United Nations list of colonies in order for Hawai‘i to be de-colonized. She explained that Mr. Siu stated to her that all it takes is one country to support Hawai‘i’s listing, and she asked Dr. Sai for his thoughts or whether or not Switzerland could be that country. Dr. Sai’s responded that it was not the appropriate action to be taken regarding Hawai‘i’s occupation, because to say that Hawai‘i is a colony of the United States is to imply that Hawai‘i is not an already existing sovereign, but occupied, State. He explained that de-colonization is the process of self-determination where the population of a colony will decide whether it wants one of three options; first, to be an independent and sovereign State; second, a status of free association with the former colonizer; or, third, total incorporation into the sovereignty of the colonizer. Because Hawai‘i’s government was illegally overthrown by the United States, does not mean Hawai‘i became a U.S. colony. The diplomats in the audience understood Dr. Sai’s response and agreed that de-colonization is not the process because the issue is State continuity and not the creation of State.
After the panel there was time for everyone to have some wine and to mingle. Dr. Sai was soon surrounded by the diplomatic students who were from Russia, France, Switzerland and Spain. The students from Russia, in particular, wanted a picture taken with Dr. Sai. There were specific questions from the students regarding economic trade between the Hawaiian Kingdom and European countries and how would that would look like. Dr. Sai explained that the treaties are still in force and that Hawaiian law provides for free trade. What resonated among the students and the diplomats was the clear understanding that the Hawaiian State would still exist under international law, despite its government being illegal overthrown. This was the basis for the Hawaiian Kingdom’s continued existence and the formation of the acting government.
The evening ended with a dinner in Dr. Sai’s honor at Kantorei restaurant, which was walking distance from the university. The senior officers of the Swiss Diplomats-Zurich Network’s Executive Committee hosted the dinner. The diplomats and officers of the Swiss Diplomats-Zurich Network gave their support to the actions taken by the acting government and wished it well as it proceeds towards the path of de-occupation. What was conveyed to Dr. Sai, as they walked to the restaurant, was how logical a path the acting government has taken in light of a prolonged occupation. What was especially welcomed to these diplomats was the focus on re-education at the collegiate and secondary levels, as well as the community at large.
The next day Dr. Sai was given a message from one of the former Swiss ambassadors in attendance at the presentation the night before, where he wanted to convey to Ambassador Sai that he is a “very good diplomat.” Dr. Sai asked the individual who delivered the message if that was a compliment. His response to Dr. Sai was absolutely, especially coming from another Ambassador who was a seasoned diplomat.
The International Court of Justice is one of three principal organs of the United Nations together with the General Assembly and the Security Council. It is located in the city of The Hague, Netherlands, and sits within the Peace Palace along with the Permanent Court of Arbitration. According to its website, “The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies. The Court is composed of 15 judges who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council. It is assisted by a Registry, its administrative organ. Its official languages are English and French.”
Only States, which are independent countries, can initiate legal proceedings against other States for violations of international law. The ICJ, however, is also open for States which are not members of the United Nations. Switzerland did not become a member of the United Nations until 2002 but initiated legal proceedings with the ICJ in 1957 as a non-Member State against the United States of America. The case lasted for 2 years and final judgment was entered on March 21, 1959 in favor of the United States, whereby the subject of the international dispute, being a Swiss corporation, has not exhausted its local remedies against the United States, therefore making the complaint against the United States premature.
If a private individual or group attempts to file an Application Instituting Proceedings against a State with the ICJ, the Registrar does not acknowledge receipt of the Application, but rather sends a template letter, either by mail or email, that states:
In reply to your email or mail, I have to inform you that the International Court of Justice is not authorized, in view of its functions strictly defined by its Statute (Article 34) and Rules, to give advice or make observations on questions such as those raised in your communication.
The Court’s activities are limited to rendering judgments in legal disputes between States submitted to it by the States themselves and giving advisory opinions when it is so requested by UN organs or specialized agencies of the UN system.
It follows that neither the Court nor its Members can consider applications from private individual or groups, provide them with legal advice or assist them in their relations with the authorities of any country.
That being so, you will, I am sure, understand that, to my regret, no action can be taken on your communication.
Département de l’information | Information Department - Cour internationale de Justice | International Court of Justice
The Registrar of the ICJ, Philippe Couvreur, serves in similar fashion to a Clerk of a Court that receives and file stamps civil and criminal complaints. The Registrar’s duty is to ensure that the party filing an Application (Complaint) is a State, whether a member or non-member of the United Nations, and that it meets the compliance provided for in the Statute and Rules of the ICJ. Once it meets the requirements and before it is submitted to the Judges, the Application must be translated by the Registrar’s office into both the English and French languages, a bilingual version of the State’s Application must be printed and a copy sent to the Secretary General of the United Nations and other States who have access to the ICJ, the case must be listed on the ICJ General List, and a press release must be sent to the media announcing the filing of the Application.
In order for the Registrar to complete these tasks he has a staff that includes a Deputy Registrar, a Legal Matters Department, a Linguistic Matters Department, an Information Department and 5 Technical Divisions comprised of Finance, Publications, Information and Communications Technology, Archives-Indexing and Distribution, and Text Processing and Reproduction. The funding of the ICJ is a portion drawn from the Regular Budget of the United Nations. The 2013 Regular Budget of the United Nations was $5.2 billion US dollars, and the proportionate budget for the ICJ was $47.7 million US dollars, which pays for these tasks to be completed by the Registrar’s office before the Court can take any action. If the State is a non-Member of the United Nations, it would have to contribute to cover the expenses of the Registrar’s office and Judges before the Court can taken any action. Article 35, paragraph 3 of the Statute of the ICJ states “When a state which is not a Member of the United Nations is a party to a case, the Court shall fix the amount which that party is to contribute towards the expenses of the Court. This provision shall not apply if such state is bearing a share of the expenses of the Court.”
On September 25, 2013, the Hawaiian Kingdom submitted to the Registrar of the International Court of Justice an “Application Instituting Proceedings” against 45 States for treaty violations and violations of international law. In addition, a “Request for the Indication of Provisional Measures of Protection” was also submitted requesting the Court to issue an order compelling the 45 States named in the complaint to no longer recognize the United States presence in Hawai‘i as legal. The Hawaiian Kingdom had previously deposited its declaration accepting jurisdiction of the International Court of Justice with the Secretary General of the United Nations on September 6, 2013 in accordance with Article 36 of the Statute of the Court.
The Registrar’s office was very reluctant to acknowledge receipt of the Hawaiian Kingdom’s Application because it was under the assumption that the Hawaiian Kingdom was not an independent State but rather a part of the United States of America. In fact, it received the template letter from the ICJ before the Agent for the Hawaiian Kingdom, Dr. David Keanu Sai, departed for the Netherlands to file the Application. While at The Hague, however, events transpired at the Peace Palace whereby the Registrar’s office was unable to deny the Hawaiian Kingdom’s status as a State and the Application was accepted by the personal assistant to the Registrar of the ICJ.
As a non-Member State of the United Nations, the Hawaiian Kingdom is responsible for covering the expenses of the Court as required under Article 35 of the Statute and, without providing its share to cover these costs, the Registrar’s office would not be able translate the Application into the French language and print out a bilingual version of the Application for the other States named in the Application, the Judges of the ICJ and the Secretary General of the United Nations. In other words, the Court cannot take any action on the case until the matter of costs is settled.
In order to address these costs, the Hawaiian Kingdom submitted a formal request on October 16, 2013 to have the President of the International Court of Justice convene the other Judges of the Court to fix the amount, which the Hawaiian Kingdom is to contribute towards the expenses of the Court. The paradox to this request is that for the President to convene the Court in order to determine the amount the Hawaiian Kingdom is to contribute, there would be an expense for the Court to convene which the Hawaiian Kingdom was to pay beforehand.
In a letter to the Hawaiian Kingdom from the International Court of Justice dated October 18, 2013, the Registrar formally acknowledged receipt of the Hawaiian Kingdom’s Application and Request for Interim Measures of Protection but stated the Court cannot take action at this time. In the letter, the Registrar alluded to this paradox by stating the Court can take no action and made specific reference to Article 35, which addresses the costs that must be paid by the Hawaiian Kingdom first. The last sentence of Article 35, paragraph 3, states the Court would not have to convene if the Hawaiian Kingdom provided its share to cover the expenses of the Court.
On September 28, 2013, the Hawaiian Kingdom provided a cashier’s check made out to the International Court of Justice to cover the expenses of the Court in the Hawaiian case. The Hawaiian Kingdom arrived at this amount by following the calculations used by the United Nations for member States to contribute their share to the 2013 Regular Budget, which included the proportionate share to the International Court of Justice.
After further thought on the matter, the Hawaiian Kingdom concluded that the United States of America has already paid its share to the Court for 2013. The United Nations measurement of costs incurred by member States is based on the country’s gross national income (GNI), which is also called the gross nation product (GNP). The United States has unlawfully seized control of the Hawaiian GNI and a large portion of the United States revenue derives from Internal Revenue Service (IRS) taxes. In 2012, the IRS collected $2.2 trillion dollars, of which residents and businesses in the Hawaiian Islands paid $5.1 billion dollars. As an occupier, the United States cannot collect taxes in a foreign country for its own benefit, and if it does it is called plundering. Unlawful appropriation of private property is plundering and extensive appropriation of property, not justified by military necessity and carried out unlawfully and wantonly, is a war crime. In other words, the United States’ contribution of $618.5 million made to the United Nations 2013 Regular Budget, of which $5.7 million went to the International Court of Justice, is tainted with stolen property from the residents of an illegally occupied State.
On November 4, 2013, the Hawaiian Kingdom notified the Registrar of the severity of the situation. In its notice to the Registrar, the Hawaiian Kingdom stated that due to the “inability at the moment to have access to verifiable data and sources to arrive at a specific amount it could claim from the United States contribution to the International Court of Justice of its proportionate share pursuant to Article 35, the Hawaiian Kingdom requests Your Excellency to assess from the United States’ contribution of $5,710,018.66, which the Court has already received, and determine with verifiable data the specific amount of illegally appropriated monies derived from the territory of the Hawaiian Kingdom and to place that entire amount in an interest bearing account under the International Court of Justice for reparations that the Hawaiian Kingdom seeks as provided in paragraph 4(l) of its Application.” The Hawaiian Kingdom maintained that the contribution it provided to the Court on September 28 should cover the expenses required by Article 35 of the Statute.
In 1995, the dominant view of sovereignty was centered on ethnicity—the aboriginal (native) Hawaiian, and, as a people, its endeavor was to achieve either sovereignty through independence or a limited sovereignty within the United States. In other words, sovereignty was not a reality vested in an already established independent State as we now understand the term, but rather it was perceived as a political aspiration of a native people seeking sovereignty, thus giving rise to a sovereignty movement where you have some groups advocating for independence from the United States, while other groups advocating for limited sovereignty under United States law. The United States 1993 Congressional Apology Resolution for the overthrow of the Hawaiian Kingdom government merely reinforced this view and portrayed native Hawaiians as a group similar to Native Americans. This was not an accurate portrayal of Hawai‘i’s political and legal history.
According to the government census in 1890, the majority of the Hawaiian Kingdom’s citizenry were aboriginal Hawaiians at 86% and the remaining 14% were non-aboriginal. The Hawaiian Kingdom was not based on ethnicity, but rather the rule of law, and the citizenry was also opened through naturallization and denization or through birth on Hawaiian territory – natural born. The international law of occupation, however, prevents the acquisition of the citizenship of the Hawaiian Kingdom through birth on Hawaiian territory, and limits the acquisition of Hawaiian citizenship to parentage. In other words, the citizenry of the Hawaiian Kingdom today is limited to people who are direct descendants of Hawaiian subjects, irrespective of their race, color or creed, that were Hawaiian subjects on August 12, 1898, which was the beginning of the prolonged occupation.
Already armed with the knowledge that the Hawaiian Kingdom was a recognized State under international law since November 28, 1843, and that the unlawful overthrow of the Hawaiian government on January 17, 1893 by the United States did not equate to an overthrow of Hawaiian State sovereignty, extraordinary steps were taken in order to establish an acting government through a process provided for by Hawaiian Kingdom law as it existed in 1893, and by the legal doctrine of necessity. On December 15, 1995, a general partnership was formed under the 1880 Act to Provide for the Registration of Co-partnership Firms with the specific purpose to serve as an acting government in the absence of the monarch who was the chief executive of Hawaiian law and administration of government. A plan was devised to activate a regent under Article 33 of the Hawaiian Constitution to temporarily serve in the absence of a monarch, because to claim to be a monarch would be a direct violation of Hawaiian law. Since the death of Prince Kuhio Kalaniana‘ole in 1922, the last proclaimed heir to the throne prior to the illegal overthrow of the Hawaiian government, only the Legislative Assembly has the authority under Article 22 of the Hawaiian Constitution to elect by ballot a new monarch—any other claimant would be self-proclaimed. Lunalilo was elected King by the Legislative Assembly under Article 22 of the Constitution on January 8, 1873 because King Kamehameha V was not able to confirm an heir under Hawaiian law, and the following year, David Kalakaua was elected King under Article 22 because King Lunalilo was not able to confirm an heir as well. A regency was the only legal option to reactivate the government.
According to the Co-partnership Act, Hawaiian Kingdom law required partnership agreements to be recorded in the Bureau of Conveyances as part of the registration process with the Minister of Interior. Today, the Bureau of Conveyances still exists and you will find partnership agreements that have been registered since 1880 to 1893. In fact, the State of Hawai‘i governmental infrastructure is the governmental infrastructure of the Hawaiian Kingdom. All that was changed since 1893 were the titles and additional departments, i.e. Monarch to Governor, Governors to Mayors, Department of Interior to Department of Land and Natural Resources, Department of Finance to Department of Accounting and General Services, Department of Education remained, Attorney General remained, Judicial Circuits remained, etc.
In its co-partnership agreement establishing the Hawaiian Kingdom Trust Company, which was recorded in the Bureau of Conveyances and assigned document no. 96-000263, the partnership agreement specifically states the “company will serve in the capacity of acting for and on behalf the Hawaiian Kingdom government.” It also provided that the “company has adopted the Hawaiian constitution of 1864 and the laws lawfully established in the administration of the same.” The Hawaiian Kingdom Trust Company was specifically established to regulate and ensure that Perfect Title Company, another co-partnership established on December 10, 1995, comply with the Co-partnership Act and Hawaiian Kingdom law.
The acting government was not established by virtue of Hawaiian Kingdom law, but rather by virtue of the legal doctrine of necessity though the use and application of Hawaiian Kingdom law. As in any constitutional government, there is an organizational infrastructure established under the constitution and laws that provides for its effective administration. Within this infrastructure, co-partnerships come under the direct supervision of the office of the Minister of the Interior; the Minister of the Interior sits on the Cabinet Council comprised of the Minister of Finance, the Minister of Foreign Affairs, and the Attorney General; and the Cabinet Council serves as a Council of Regency who serves in the absence of a monarch according to Article 33 of the Hawaiian constitution.
In the absence of individuals occupying these offices established by Hawaiian law since January 17, 1893, the Trustees of the Hawaiian Kingdom Trust Company took the necessary steps, under extraordinary circumstances and under the doctrine of necessity, to assume the offices directly in line from a co-partnership through the Minister of the Interior to the Council of Regency. This is analogous to a soldier with the rank of Private assuming the chain of command to Lieutenant, because everyone within the chain of command from Corporal to Sergeant to Staff Sergeant to Lieutenant were killed in action. Under Army regulations the most senior Private is obligated to assume the chain of command and is called acting Lieutenant in order to maintain the command structure. He remains the acting Lieutenant until a properly commissioned officer relieves him and then he returns to his original position as Private.
For a private company to assume the role of government is revolutionary, but in order for this action to not be considered treason, the doctrine of necessity can be used to justify the assumption of government. According to Professor de Smith in his book Constitutional and Administrative Law, deviations from a State’s constitutional order “can be justified on grounds of necessity.” He argues, “State necessity has been judicially accepted in recent years as a legal justification for ostensibly unconstitutional action to fill a vacuum arising within the constitutional order [and to] this extent it has been recognized as an implied exception to the letter of the constitution.” In 1986, the Court of Appeals of Grenada in Mitchell v. Director of Public Prosecutions, addressed the doctrine of necessity and provided the following conditions that would justify an action to assume the role of government.
- An imperative necessity must arise because of the existence of exceptional circumstances not provided for in the Constitution, for immediate action to be taken to protect or preserve some vital function of the State;
- There must be no other course of action reasonably available;
- Any such action must be reasonably necessary in the interest of peace, order, and good government; but it must not do more than is necessary or legislate beyond that;
- It must not impair the just rights of citizens under the Constitution; and,
- It must not be one the sole effect and intention of which is to consolidate or strengthen the revolution as such.
On March 1, 1996, the Trustees appointed David Keanu Sai, who later received his Ph.D. in 2008, to serve in the capacity as acting Regent to head the government. Dr. Sai is also the maternal great grandson of William Kuakini Simerson and the paternal great great grandson of Julia Kapapakuialii Kalaninuipoaimoku, both of whom who was confirmed by the Hawaiian Board of Genealogists of Hawaiian Chiefs to be “native chiefs” in conformity with the 1880 Act to Perpetuate the Genealogy of the Chiefs of Hawai‘i. The purpose of enacting the statute was provided in its preamble, which states:
- Whereas, it is provided by the 22d article of the Constitution that the Kings of Hawai‘i shall be chosen from the native chiefs of the Kingdom;
- And Whereas, at the present day it is difficult to ascertain who are the chiefs, as contemplated by said article of the Constitution, and it is proper that such genealogies of the Kingdom be perpetuated, and also the history of the chiefs and kings from ancient times down to the present day, which would also be a guide to the King in the appointment of Nobles in the Legislative Assembly
The Board of Genealogy of Hawaiian Chiefs was established by law to “collect from genealogical books, and from the knowledge of old people the history and genealogy of the Hawaiian chiefs, and shall publish a book.” As a result of the illegal overthrow of the Hawaiian government, however, the Board published the genealogies of native chiefs living at the time between April 20 and November 30, 1896 in the newspaper publication Ka Maka‘ainana.
After assuming the role of government, the acting Regency had to display some form of legal effects, which is a crucial element of legitimacy. In order for a government to be legitimate, it has to be effective both within its territory to enforce its laws and outside of its territory to enforce international law. An exception to the principle of effectiveness is the occupation by another State’s forces. According to Professor Marek in her book Identity and Continuity of States in Public International Law, “the legal order of the occupant (State) is…strictly subject to the principle of effectiveness, while the legal order of the occupied State continues to exist [despite] the absence of effectiveness. It can produce legal effects outside the occupied territory and may develop and expand, not by reason of its effectiveness, but solely on the basis of the positive international rule safeguarding its continuity.”
The first instance of exhibiting legal effects outside the occupied territory occurred when the acting government entered into an arbitration agreement with Lance Larsen, a Hawaiian national, to submit their dispute to the Permanent Court of Arbitration in The Hague, Netherlands. In 2001, the American Journal of International Law reported:
- “At the center of the PCA proceeding was the argument that Hawaiians never directly relinquished to the United States their claim of inherent sovereignty either as a people or over their national lands, and accordingly that the Hawaiian Kingdom continues to exist and that the Hawaiian Council of Regency (representing the Hawaiian Kingdom) is legally responsible under international law for the protection of Hawaiian subjects, including the claimant. In other words, the Hawaiian Kingdom was legally obligated to protect Larsen from the United States’ ‘unlawful imposition [over him] of [its] municipal laws’ through its political subdivision, the State of Hawaii. As a result of this responsibility, Larsen submitted, the Hawaiian Council of Regency should be liable for any international law violations that the United States committed against him.”
The arbitral proceedings led to the United States de facto recognition of the continuity of the Hawaiian Kingdom as an independent State, and the acting government as officers de facto of the Hawaiian Kingdom. In February 2000, the Permanent Court of Arbitration’s Secretary General Tjaco T. van den Hout recommended that the acting government provide a formal invitation to the United States to join in the arbitration. In order to carry out this request by the Secretary General, Dr. Sai was sent to Washington, D.C. Ms. Ninia Parks, attorney for the Claimant Lance Larsen, accompanied Dr. Sai. On March 3, 2000, a telephone meeting with John R. Crook, Assistant Legal Adviser for United Nations Affairs section of the US Department of State, was held. It was stated to Mr. Crook that the “visit was to provide these documents to the Legal Department of the U.S. Department of State in order for the U.S. Government to be apprised of the arbitral proceedings already in train and that the Hawaiian Kingdom, by consent of the Claimant, extends an opportunity for the United States to join in the arbitration as a party.”
Mr. Crook was made fully aware of the United States occupation of the Hawaiian Kingdom and the establishment of the acting government. This direct challenge to US sovereignty over the Hawaiian Islands should have prompted the United States to protest the action taken by the Permanent Court of Arbitration in accepting the Hawaiian arbitration case and call upon the Secretary General to cease and desist because this action constitutes a violation of US sovereignty. The United States did neither. Instead, Deputy Secretary General Phyllis Hamilton notified the acting government that the United States notified the Court that it will not join in the arbitration, but did request from the acting government permission to access all pleadings and transcripts of the case. Both the acting government and Larsen’s attorney consented. By this action, the United States directly acknowledged the circumstances of the proceedings and the acting government as the legitimate representation of the Hawaiian Kingdom before an international tribunal.
On December 12, 2000, the day after oral hearings were held at the Permanent Court of Arbitration, a meeting took place in Brussels between Dr. Jacques Bihozagara, Ambassador for the Republic of Rwanda assigned to Belgium, and the acting government. The meeting was prompted by Ambassador Bihozagara who called the acting government at its hotel in The Hague, after the Ambassador was apprised of the arbitration proceedings while he was attending a hearing at the International Court of Justice on December 8, 2000, Democratic Republic of the Congo v. Belgium. At the meeting in Brussels, the Rwandan government directly acknowledged the acting government and offered their assistance in reporting to the United Nations General Assembly the prolonged occupation of the Hawaiian Kingdom. In that meeting, the acting government decided it could not, in good conscience, accept the offer and place Rwanda in a position of reintroducing Hawaiian State continuity before the United Nations, when Hawai‘i’s community, itself, remained ignorant of Hawai‘i’s profound legal position as a result of institutionalized indoctrination. Although the Rwandan government took no action before the United Nations General Assembly, the offer itself, exhibited Rwanda’s de facto recognition of the acting government and the continuity of the Hawaiian State.
Other examples of creating legal effects on the international plane include:
- China, as President of the UN Security Council, accepted a complaint by the acting government against the United States of America on July 5, 2001 under Article 35(2) of the United Nations Charter, which provides that States who are not members of the United Nations can file a dispute with the Security Council or General Assembly. By accepting the complaint, China recognized the acting government and the continuity of the Hawaiian Kingdom;
- Qatar, as President of the UN General Assembly accepted a Protest and Demand by the acting government against 173 member States of the United Nations on August 10, 2012 under Article 35(2) of the UN Charter. By accepting the complaint, Qatar, recognized the acting government and the continuity of the Hawaiian Kingdom;
- The International Criminal Court, by the Secretary General of the United Nations accepted the acting government accession to the Rome Statute of the International Criminal Court on December 10, 2012;
- Switzerland, by its Foreign Ministry, accepted the acting government’s instrument of accession acceding to the Fourth Geneva Convention on January 14, 2013.
- The International Court of Justice, by its Registrar, acknowledged receipt of the acting government’s Application Instituting Proceedings against 45 States on September 27, 2013.
The acting government, as nationals of an occupied State, took the necessary and extraordinary steps, by necessity and according to the laws of the Hawaiian Kingdom and international law, to reestablish the Hawaiian government in an acting capacity in order to exercise our country’s preeminent right to “self-preservation” that was deprived through fraud and deceit; and for the past 13 years the acting government has acquired a customary right under international law in representing the Hawaiian State during this prolonged and illegal occupation.
For a detailed legal brief download “The Continuity of the Hawaiian State and the Legitimacy of the acting Government of the Hawaiian Kingdom.”
Since the first constitution was promulgated by King Kamehameha III in 1840, constitutionalism had begun in the Hawaiian Islands. For the next 24 years, Hawaiian governance would be transformed from an absolute monarchy to a limited monarchy under the separation of powers doctrine under the headings of Executive power, Legislative power and Judicial power. This cornerstone of constitutionalism was eventually enshrined in the 1864 constitution.
- ARTICLE 20. The Supreme Power of the Kingdom in its exercise, is divided into the Executive, Legislative, and Judicial; these shall always be preserved distinct, and no Judge of a Court of Record shall ever be a member of the Legislative Assembly.
- ARTICLE 31. The person of the King is inviolable and sacred. His Ministers are responsible. To the King belongs the Executive power. All laws that have passed the Legislative Assembly, shall require His Majesty’s signature in order to their validity.
- ARTICLE 45. The Legislative power of the Three Estates of this Kingdom is vested in the King, and the Legislative Assembly; which Assembly shall consist of the Nobles appointed by the King, and of the Representatives of the People, sitting together.
- ARTICLE 64. The Judicial Power of the Kingdom shall be vested in one Supreme Court, and in such Inferior Courts as the Legislature may, from time to time, establish.
In 1893, Queen Lili‘uokalani was constitutionally vested with the Executive power under Article 31, which is the power to execute laws enacted by the Legislature, which included the Civil and Criminal Codes, and to enforce judicial decisions made by the Courts. This authority, however, was interrupted when United States troops were unlawfully landed by order of the United States Minister John Stevens on January 16, 1893, in order to protect insurgents who, as part of a prearranged plan, would declare themselves to be a provisional government until annexation to the United States can be accomplished by a treaty of cession.
Over the protests by Oahu Governor Archibald Cleghorn and the Minister of Foreign Affairs Samuel Parker, the US troops were fully armed and occupied a small space between two buildings adjacent to the Government building on Mililani Street and fronting Iolani Palace, which was across King Street. If the police moved in to apprehend the insurgents for committing the capital crime of treason they would have to first deal with the US troops who were prepared for a fight. This situation quickly escalated from a domestic police matter to now an international incident that could spark a war between the Hawaiian Kingdom and the United States. Upon the sound advice of her advisors, Queen Lili‘uokalani provided the following protest.
The yielding of her power to enforce the law was limited to the the Queen’s constitutional authority enumerated under Article 31 of the Hawaiian constitution. It was not a transfer of the sovereignty of the country, and it was limited and confined to the circumstances of the invasion by US troops to aid and protect insurgents from arrest by the police force. It was made with the understanding of the Hawaiian government that the President would investigate the circumstances and restore the government.
If the United States was in complete control of Hawaiian territory as an occupying force it would, by circumstance, be vested with authority to enforce Hawaiian law under the international laws of occupation, and would not need the Queen to have temporarily assigned her power to enforce Hawaiian law to make it valid. But this was not the case. The US troops were illegally landed on January 16, 1893 and maintained a defensive position limited to a small space between two buildings called Opera House and Arion Hall that was situated on Mililani Street adjacent to the Government building. On January 31, 1893, lead insurgent Sanford Dole of the provisional government was concerned for their safety and requested US Minister Stevens for protection. Dole stated, “Believing that we are unable to satisfactory protect life and property, and to prevent civil disorders in Honolulu and throughout the Hawaiian Islands, we hereby, in obedience to the instructions of the advisory council, pray that you will raise the flag of the United States of America for the protection of the Hawaiian Islands for the time being.” The following day on February 1, 1893, US Minister Stevens directed Captain Wiltse of the USS Boston to comply with the request and take the necessary steps to establish a US protectorate.
On March 9, 1893, President Cleveland acknowledged receipt of the temporary assignment and thereafter took the necessary steps to investigate the overthrow by appointing James Blount as special commissioner on March 11, 1893. The protectorate status was terminated when US Special Commissioner Blount arrived in Honolulu on March 29, 1893 and began his investigation by direction of President Cleveland. Blount sent periodic reports to Secretary of State Walter Gresham in Washington, D.C., with his final report submitted on July 17, 1893.
The investigation was completed on October 18, 1893, where Secretary of State Gresham stated to the President, “The Government of Hawaii surrendered its authority under a threat of war, until such time only as the Government of the United States, upon the facts being presented to it, should reinstate the constitutional sovereign.” Gresham concluded in his report to the President, “Should not the great wrong done to a feeble but independent State by an abuse of the authority of the United States be undone by restoring the legitimate government? Anything short of that will not, I respectfully submit, satisfy the demands of justice.” The President agreed and directed the new US Minister Albert Willis to negotiate with the Queen for restoration of the government, which led to the executive agreement of restoration on December 18, 1893. Because the Agreement of restoration has not been carried out since, the United States is still bound to administer Hawaiian law under the Lili‘uokalani assignment as well as the international laws of occupation.
THE HAGUE, NETHERLANDS, 27 September 2013 — The acting Government of the Hawaiian Kingdom filed with the Registrar of the International Court of Justice an Application Instituting Proceedings against the Republic of Austria, Barbados, the Kingdom of Belgium, the Republic of Botswana, the Republic of Bulgaria, the Republic of Costa Rica, the Republic of Côte d’Ivoire, Democratic Republic of the Congo, the Kingdom of Denmark, the Republic of Djibouti, the Commonwealth of Dominica, the Dominican Republic, the Arab Republic of Egypt, the Republic of Finland, Gambia, Georgia, the Hellenic Republic of Greece, the Republic of Guinea, the Republic of Guinea-Bissau, the Republic of Haiti, the Republic of Honduras, the Republic of Ireland, the Republic of Kenya, the Kingdom of Lesotho, the Republic of Liberia, the Grand Duchy of Luxembourg, the Republic of Madagascar, the Republic of Malawi, the Republic of the Marshall Islands, the United Mexican States, the Kingdom of the Netherlands, the Kingdom of Norway, the Islamic Republic of Pakistan, the Republic of Paraguay, the Republic of Peru, the Republic of Senegal, the Republic of South Sudan, the Republic of Suriname, the Kingdom of Swaziland, the Kingdom of Sweden, the Swiss Confederation, the Democratic Republic of Timor-Leste, the Togolese Republic, the Republic of Uganda, and the Oriental Republic of Uruguay for treaty violations and serious breaches of peremptory norms. Austria, Belgium, Denmark, Netherlands, Norway, Sweden, and Switzerland have treaties with the Hawaiian Kingdom. All (45) States have accepted the jurisdiction of the Court beforehand, including the Hawaiian Kingdom.
The filing of the Application is directly tied to the Hawaiian Kingdom’s Protest and Demand filed with the President of the United Nations General Assembly on August 10, 2012. The Application is seeking enforcement of the Hawaiian Kingdom’s Demand that States comply with their treaty obligations and obligations under customary international law.
Also submitted with the Application was a Request for the Indication of Provisional Measures of Protection. The request states the “fact that serious breaches of rules of jus cogens have been ongoing for over a century only amplifies the urgent request that the Court indicate provisional measures to protect and preserve the rights of the Hawaiian Kingdom.” The Court is requested to declare that:
a) All member States of the United Nations, which includes the States herein named, in compliance with the duty of non-recognition imposed under Articles 41(1) and 41(2) of the Articles of State Responsibility for International Wrongful Acts, are under an obligation:
1) to recognize the illegality and invalidity of the United States of America’s continued presence in the Hawaiian Kingdom;
2) to refrain from lending any support or any form of assistance to the United States of America with reference to its illegal occupation of the Hawaiian Kingdom;
3) to abstain from entering into treaty relations with the United States of America in all cases whereby the government of the United States of America purports to act on behalf of or concerning the Hawaiian Kingdom;
4) to abstain from sending consular agents to the territory of the Hawaiian Kingdom, purportedly under arrangements and/or agreements with the United States of America, and to withdraw any such agents already there;
5) to abstain from entering into economic, military and any other form of relationship or dealing with the United States of America on behalf of or concerning the Hawaiian Kingdom, which may entrench its authority over the territory;
b) With respect to existing bilateral treaties, member States of the United Nations, which includes the States herein named, in compliance with the duty of non-recognition imposed under Articles 41(1) and 41(2) of the Articles of State Responsibility for International Wrongful Acts, must abstain from invoking or applying those treaties or provisions of treaties concluded by the United States of America on behalf of or concerning the Hawaiian Kingdom, which include and/or involve active intergovernmental co-operation.
c) With respect to multilateral treaties, however, the same rule cannot be applied to certain general conventions such as those of a humanitarian character, the non-performance of which may adversely affect the people of the Hawaiian Kingdom;
d) All member States of the United Nations, which includes the States herein named, in compliance with the duty of non-recognition imposed under Articles 41(1) and 41(2) of the Articles of State Responsibility for International Wrongful Acts, should not result in depriving the people of the Hawaiian Kingdom of any advantages derived from international co-operation. In particular, while official acts performed by the Government of the United States of America on behalf of or concerning the Hawaiian Kingdom since the occupation began on 12 August 1898 are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory.
e) With respect to non-member States of the United Nations, the illegality of the United States of America’s presence in the Hawaiian Kingdom is opposable to all States in the sense of barring erga omnes the legality of a situation which is maintained in violation of international law: in particular, no State which enters into relations with the United States of America concerning the Hawaiian Kingdom may expect the United Nations or its Members to recognize the validity or effects of such relationship, or of the consequences thereof.
The acting Government of the Hawaiian Kingdom designated David Keanu Sai, Ph.D., its Ambassador-at-large, as Agent for these proceedings, and Dexter Ke‘eaumoku Ka‘iama, Esq., its Attorney General, as Deputy Agent. Dr. Sai served as lead Agent for the Hawaiian Kingdom in Larsen v. Hawaiian Kingdom (1999-2001) and presented oral arguments at the Peace Palace on December 7, 8, and 11, 2000. Members of the arbitral tribunal included Professor James Crawford, SC, as presiding arbitrator, with Mr. Gavan Griffith, QC, and Professor Christopher Greenwood, QC, serving as associate arbitrators. Professor Greenwood is now a Judge of the International Court of Justice. Both the Permanent Court of Arbitration and the International Court of Justice are located in the Peace Palace, The Hague, Netherlands.
While in The Hague, Dr. Sai also met with a member of the International Criminal Court’s Information & Evidence Unit at the Court’s headquarters to inquire into the status of the Hawaiian Kingdom’s Referral to initiate an investigation for war crimes. He confirmed that it is still under review and that the Office of the Prosecutor will be in communication shortly.