In celebration of the Hawaiian holiday Restoration Day (La Ho‘iho‘i ‘Ea) there will be an educational seminar at no charge held at the Boys and Girls Club of the Big Island at 100 Kamakahonu Street in Hilo from July 29th through the 30th. Individuals who register for the two-day seminar will receive a schedule of the time slots for each of the presenters. Everyone is encouraged to attend the full day of events.
Lunch will be provided by donation. Saturday’s menu is Kalua-pig and Cabbage, rice and macaroni salad. Sunday’s menu is Chili and Rice with Coleslaw. 1 pound containers of Kalua-pig from the Imu will be available for a $12 donation. All donations will be used to offset the cost of the two-day event.
- Puna Event from 4-9:00 pm at Uncle’s ‘Awa Bar in Kalapana
- Maui Event from 2-6:00 pm at the old Maui Community College
- O‘ahu Event from 5-9:00 pm at the Honolulu Hale Auditorium
From June 25 through July 5, 2017, the National Education Association (NEA) held its Annual Meeting and Representative Assembly in Boston, Massachusetts. The NEA is the largest labor union of 3 million members who work at every level of education that span from pre-school to university graduate programs. Formed in 1857, the NEA’s “mission is to advocate for education professionals and to unite our members and the nation to fulfill the promise of public education to prepare every student to succeed in a diverse and interdependent world.” Members include public school teachers, educational support professionals, higher education faculty and staff, and school administrators.
The Hawai‘i State Teachers Association (HSTA) is an affiliate union of the NEA whose members come from the public schools throughout Hawai‘i. Its Secretary/Treasurer, Amy Perruso, a teacher from Mililani High School was one of the first teachers to begin teaching about the illegal overthrow of the government of the Hawaiian Kingdom and the illegal American occupation that followed. The textbook that she uses is Ua Mau Ke Ea—Sovereignty Endures: An Overview of the Political and Legal History of the Hawaiian Islands by Dr. Keanu Sai.
Perruso teaches Pre-AP Modern Hawaiian History/Participation in Democracy, AP U.S. History and A.P. Government and Politics. Commenting on the textbook Ua Mau Kea Ea, she stated, “Secondary educators in Hawai‘i are extremely fortunate to be able to access the rarest of pedagogical materials for the required Hawai‘i DOE Modern Hawaiian History course: an academically sound and well-written textbook.”
When the United States was celebrating its independence as a country on the 4th of July, the NEA’s Annual Meeting and Representative Assembly convened and for 90 minutes they took up New Business. On the agenda was New Business Item 37 introduced by the HSTA Representatives, which stated:
“The NEA will publish an article that documents the illegal overthrow of the Hawaiian Monarchy in 1893, the prolonged occupation of the United States in the Hawaiian Kingdom and the harmful effects that this occupation has had on the Hawaiian people and resources of the land.”
According to the HSTA Facebook, Chris Santomauro, a teacher at Kane‘ohe Elementary introduced the proposal, and Uluhani Wai‘ale‘ale, a teacher at Kualapu‘u Charter School on Moloka‘i gave an impassioned and articulate argument in favor of the proposal and it swayed a majority of teachers from across the United States to support it.
There are certain standards that need to be met with regard to the terms “indigenous sovereignty” and “state sovereignty” and it begins with definitions. The former applies to indigenous peoples, while the latter applies to independent States. Current usage in Hawaiian discourse tends to conflate the two terms as if they are synonymous. This is a grave mistake that only adds to the already confusing discourse of sovereignty talk amongst Hawai‘i’s population. Instead of beginning with the definition of the terms and their difference, there is a tendency to argue native Hawaiians are an indigenous people as if it is a forgone conclusion.
Indigenous studies make a clear distinction between the terms. Corntassel and Primeau’s article “Indigenous ‘Sovereignty’ and International Law: Revised Strategies for Pursuing ‘Self-Determination,” Human Rights Quarterly 17.2 (1995) 343-365), refers to indigenous people as a “stateless group in the international system.” Defining a stateless group, Corntassel and Primeau cite Milton J. Esman’s article, “Ethnic Pluralism and International Relations,” Canadian Review of Studies in Nationalism 27 (1990): 88, where he defines non-state nations as ethnic groups that do not have a patron State of their own.
While the State has its origins that date back to 1648—Treaty of Westphalia, it wasn’t until 1982 that the United Nations officially recognized indigenous groups when it formed the UN Working Group on Indigenous Populations. That year the Working Group came up with its definition of indigenous populations. “Indigenous populations are composed of the existing descendants of the peoples who inhabited the present territory of a country wholly or partially at the time when persons of a different culture or ethnic origin arrived there from other parts of the world, overcame them, and, by conquest, settlement or other means reduced them to a non-dominant or colonial condition; who today live more in conformity with the particular social, economic and cultural customs and traditions that with the institutions of the country of which they now form part, under a State structure which incorporates mainly the national, social and cultural characteristics of other segments of the population which are predominant.”
According to Corntassel and Primeau the Working Group’s definition was so broad that “any non-state nation … could fit under the term ‘indigenous population (p. 347),’” which would go outside the Working Group’s focus on tribal populations. They argue that under such a broad definition any people that are non-States such as Basques, Kurds, Abkazians, Bretons, Chechens, Tibetans, Timorese, Puerto Ricans, Northern Irish, Welsh, Tamils, Madan Arabs, or Palestinians could identify themselves as “indigenous people (p. 348).”
Seven years later, in a move to limit the definition to tribes, the term “tribal peoples” was inserted in Article 1 of the 1989 Convention concerning Indigenous and Tribal Peoples in Independent Countries, No. 169, adopted by the International Labor Organization. Article 1, provides: “(a) tribal peoples in independent countries [States] whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) peoples in independent countries [States] who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.”
An “independent country” is an independent State that is a self-governing entity possessing absolute and independent legal and political authority over its territory to the exclusion of other States. All members of the United Nations are independent States. The ILO was clearly distinguishing between indigenous tribal peoples and the States they reside in. The 2007 United Nations Declaration on the Rights of Indigenous Peoples also makes that distinction in Articles 5, 8(2), 11(2), 12(2), 13(2), 14(2) (3), 15(2), 16(2), 17(2), 19, 21(2), 22(2), 24(2), 26(3), 27, 29, 30(1) (2), 32(2) (3), 33(1), 36(2), 37(1), 38, 39, 40, 42, and 46(1).
The ILO Convention covered the “what” are indigenous populations, being “tribal peoples in independent countries [States],” but it did not satisfactorily determine the “who.” This was somewhat addressed by Jose R. Martinez Cobo, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, in his 1986 Report on the Study on the Problem of Discrimination against Indigenous Populations, which stated:
“Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal system (paragraph 379).”
“This historical continuity may consist of the continuation, for an extended period reaching into the present of one or more of the following factors: (a) Occupation of ancestral lands, or at least of part of them; (b) Common ancestry with the original occupants of these lands; (c) Culture in general, or in specific manifestations (such as religion, living under a tribal system, membership of an indigenous community, dress, means of livelihood, lifestyle, etc.); (e) Language (whether used as the only language, as mother-tongue, as the habitual means of communication at home or in the family, or as the main, preferred, habitual, general or normal language); (f) Residence on certain parts of the country, or in certain regions of the world; (g) Other relevant factors (paragraph 380).”
“On an individual basis, an indigenous person is one who belongs to these indigenous populations through self-identification as indigenous (group consciousness) and is recognized and accepted by these populations as one of its members (acceptance by the group) (paragraph 381).”
Throughout his report, Cobo also distinguishes between indigenous populations and the States they reside. On this note, Cobo recommends:
“States should seek to gear their policies to the wish of indigenous populations to be considered different, as well as to the ethnic identity explicitly defined by such populations. In the view of the Special Rapporteur, this should be done within a context of socio-cultural and political pluralism which affords such populations the necessary degree of autonomy, self-determination and self-management commensurate with the concepts of ethnic development (paragraph 400).”
“Countries with indigenous populations should review periodically their administrative measures for the formulation and implementation of indigenous population policy, taking particular account of the changing needs of such communities, their points of view and the administrative approaches which have met with success in countries where similar situations obtain (paragraph 404).”
In the 1996 Report of the Working Group (paragraph 31), representatives of the indigenous populations stated, “We, the Indigenous Peoples present at the Indigenous Peoples Preparatory Meeting on Saturday, 27 July 1996, at the World Council of Churches, have reached a consensus on the issue of defining Indigenous Peoples and have unanimously endorsed Sub-Commission resolution 1995/32. We categorically reject any attempts that Governments define Indigenous Peoples. We further endorse the Martinez Cobo report (E/CN.4/Sub.2/1986/Add.4) in regard to the concept of “indigenous.” The 2007 Declaration on the Rights of Indigenous Peoples does not provide for a different definition of indigenous peoples, but rather declares their rights within the States they reside.
In 2001, the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom, concluded, 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.” There are no indigenous people in the Hawaiian Islands because the aboriginal Hawaiians formed the State themselves, comparable to other Polynesians who formed their own States such as Samoa in 1962, and Tonga in 1970. Both States are members of the United Nations. The only difference, however, was that Hawai‘i was the first of the Polynesians to be recognized as an independent State. Furthermore, Samoans and Tongans do not refer to themselves as an “indigenous people,” but rather the citizenry of two independent States.
This is why it is paradoxical to say that natives of Hawai‘i (kanaka) are an indigenous people because it would imply they do not have a State of their own. This labeling of Hawaiian natives as indigenous people is an American narrative that has no basis in historical facts or law other than people just saying it. Rather, natives are the majority of Hawaiian subjects, being the citizenry of the Hawaiian Kingdom that has been in an unjust war by the United States since 1893.
Phone & Text 808-590-5880
THE THEFT OF A NATION
La Ho`iho`i Ea presents a Dramatic Re-enactment
10 am July 4, 2017, ʻIolani Palace Front Steps
HONOLULU: JUNE 29, 2017 — Americans celebrate American Independence Day on the Fourth of July every year, commemorating the Declaration of Independence and the birth of the United States of America as an independent nation in 1776. To mark an event from Hawai’i’s history, La Hoʻihoʻi Ea <http://lahoihoiea.org/history/> will observe this Fourth of July with a dramatic re-enactment of events that occurred over a century ago at ‘Iolani Palace.
Beginning at 10:00 am July 4, 2017, on the front steps of ʻIolani Palace, La Hoʻihoʻi Ea will present a dramatic re-enactment of the events that led to proclaiming into existence of the Republic of Hawaii and the subsequent installation of Sanford B. Dole as President of the Territory of Hawaii. “With Bible in hand, pistols in their pockets and American Naval troops at the ready, men gathered on the steps of ʻIolani Palace on July 4th, 1894. Invoking the name of American liberty, they dismantled the liberty of the people of the Hawaiian Kingdom.”
This exciting re-enactment is free and open to the public. The script, a work in progress, has been prepared using input from several noted Hawai`i scholars and historians including writer/producer Tom Coffman <http://hawaiibookandmusicfestival.com/tom-coffman/>, Poka Laenui of Moʻoaupuni <https://mooaupuni.org/> and Dr. Lynette Cruz of La Ho`iho`i Ea. The “work in progress” event is being staged by MarshaRose Joyner. The four have worked together since 1989 under the banner of Sacred Times and Sacred Places.
CAST OF CHARACTERS
- Queen Liliuokalani – Kumu Hina Wong-Kalu
- James G. Blaine – Kioni Dudley
- Henry Cooper – Jay M. Fidell
- Sanford Dole – Stuart Feinberg
- Francis Hatch – Henry Curtis
- Albert Francis Judd – Peter Carlisle
- W.O. Smith – Jeff Pompadur
- John L. Stevens – Thomas Baldwin
- Lorrin Thurston – Roger Epstein
- Thomas Williams – Scott Foster
On January 16, 1893, United States diplomatic and military personnel conspired with a small group of individuals to overthrow the constitutional government of the Hawaiian Kingdom and prepared to provide for annexation of the Hawaiian Islands to the United States of America under a treaty of annexation submitted to the United States Senate on February 15, 1893. Newly elected U.S. President Grover Cleveland, having received notice that the cause of the so-called revolution derived from illegal intervention by U.S. diplomatic and military personnel withdrew the treaty of annexation and appointed James H. Blount, as Special Commissioner, to investigate the terms of the so-called revolution and to report his findings.
The report concluded that the United States legation assigned to the Hawaiian Kingdom, together with United States Marines and Navy personnel, were directly responsible for the illegal overthrow of the Hawaiian Kingdom government. The report detaild the culpability of the United States government in violating international laws and the sovereignty of the Hawaiian Kingdom, but the United States Government failed to follow through in its commitment to assist in reinstating the constitutional government of the Hawaiian Kingdom.
Instead, the United States allowed five years to elapse. A new United States President, William McKinley, entered into negotiations for a second treaty of annexation on June 16, 1897, with the same individuals who participated in the illegal overthrow in 1893, but the treaty failed to be ratified by the United States Senate due to protests submitted by Her Majesty Queen Lili‘uokalani and signature petitions opposing annexation signed by 21,169 Hawaiian nationals.
As a result of the Spanish-American War, the United States opted to unilaterally take the Hawaiian Islands by enacting a Congressional joint resolution on July 7, 1898, in order to utilize the Hawaiian Islands as a military base to fight the Spanish in Guam and the Philippines. The United States has remained in the Hawaiian Islands and the Hawaiian Kingdom has since been under prolonged occupation to the present, but its continuity as an independent State remains intact under international law.
Two separate camps divided Hawaiʻi’s political environment. One, a small minority, held the power of government through the landing of the U.S. military. The second, Hawaiian loyalists, supported their Hawaiian Queen Liliuokalani and their country.
The first camp wanted annexation of Hawaiʻi to the U.S., part of a larger plan to open their sugar exports to U.S. markets. They sided with American expansionists like John L. Stevens, U.S. Minister to Hawaiʻi. Hawaiian subjects, according to U.S. special investigator James Blount, were almost to the man in opposition to annexation.
U.S. troops landed on January 16, 1893 and supported a self-proclaimed “provisional government” the next day. A hurriedly drafted annexation treaty was sent to the U.S. Senate in February for ratification under Harrison’s administration, but that treaty failed. Grover Cleveland, inaugurated President in March, sent Blount to investigate the Hawaiian affair. Having received Blount’s report, Cleveland railed against U.S. conspiracy and withdrew the treaty in December.
Sanford Dole, President of the “provisional” government, was criticized for the lack of legitimacy. He convened a convention of 37 delegates, 19 appointed by him, the remainder elected by those who disavowed loyalty to Queen Liliʻuokalani and who swore allegiance to the provisional government.
Using as their backdrop the U.S. Independence day celebration, Dole’s group assembled at ʻIolani Palace at 8:00 A.M., July 4, 1894. With guns tucked out of public sight, William O. Smith, one of the early conspirators of the group, acted as master of ceremony. Dispensing with the opening prayer, apparently skittish over the proceedings taking place, Smith introduced Dole. Dole, looking down upon their members, proclaimed “the Republic of Hawaiʻi as the sovereign authority over and throughout the Hawaiian Islands.” He went on, “And I declare the Constitution framed and adopted by the Constitutional Convention of 1894 to be the constitution and the supreme law of the Republic of Hawaiʻi, and by virtue of this constitution I now assume the office and authority of president thereof.”
The constitution declared all Liliʻuokalani’s government’s lands, waters and citizens as those of the Republic.
While framing their activities around the American principle that the right of governance can only be achieved through the consent of the governed, the Republic of Hawaiʻi was declared in just the opposite manner. No ratification or consent was given the Republic by Hawaiians.
At a party in Honolulu at the U.S. Legation to celebrate July 4th that evening, Kahuku Plantation founder, J.B. Castle, proclaimed, “Americans assemble here today amidst novel and serious events to make a new declaration of independence and of principles, broader and wiser than the declaration of 1776; to make the solemn declaration that the intelligent minority in every community has the inalienable right to good government, which they are justified in securing, holding themselves responsible only to God and their own consciences for the just and proper use of power in their hands.”
Castle continued: “The inexorable law of evolution withdraws the native from his long dominance, and forces the American and his allies to the front, with a demand for a new declaration of principles. . . . the Anglo Saxon and his allies, with the best thought of civilization behind them, and trained in the best use of political machinery . . . may demonstrate to the world that they can hold the supreme power, at first, for the good of all, and gradually educate, and lead the men of other races up to their own standards of good government, and finally and safely, distribute that power among all races. . .” “We solemnly declare, with the experience of a hundred years behind us, that minorities in number have the inalienable right to good government, and they are commissioned to secure and maintain it, holding themselves responsible to God and their own consciences, for the just and proper use of the power organized and used to obtain it.” Source: Pacific Commercial Advertiser, July 5, 1894, Honolulu, Hawai`i.
The ongoing illegal state of war between the Hawaiian Kingdom and the United States since 1893 and the prolonged occupation has violated all norms of international law. As we are approaching the international exposure of the prolonged occupation through the international commission of inquiry proceedings stemming from the Larsen v. Hawaiian Kingdom held under the auspices of the Permanent Court of Arbitration, it is timely to address other wars and subsequent occupations that the United States was involved, which eventually came to an end with the payment of reparations. These were the wars with Japan from 1941-51 and with Italy from 1938-47.
Reparations were made by Japan pursuant to Article 14(a), 1951 Japan Treaty of Peace, which states, “It is recognized that Japan should pay reparations to the Allied Powers for the damage suffering caused by it during the war.” Below are Japanese reparations to countries for 10 years of war (1941-51).
|Country||Amount in US$||Date of Treaty|
|Burma||$200 million||Nov. 5, 1955|
|Philippines||$550 million||May 9, 1956|
|Indonesia||$223 million||Jan. 20, 1958|
|Vietnam||$39 million||May 13, 1959|
|Average||$250 million||Mean year—1957|
|Inflation calculator||$2 billion||Year—2017|
Italian reparations to countries for 9 years of war (1938-47) were made pursuant to Article 74 of the 1947 Italian Treaty of Peace.
|Country||Amount in US$||Date of Treaty|
|Soviet Union||$100 million||Feb. 10, 1947|
|Inflation calculator||$890 million||Year—2017|
As a basis to calculate the amount of reparations that could be owed to the Hawaiian Kingdom by the United States up to the year of 2017, which is 124 years of war, the Japanese and the Italian reparations paid could serve as a guide by applying their years of war to the years of war with the Hawaiian Kingdom. In the case of Japan, reparations to be paid by the United States could be calculated at $25 billion, which is $200 million annually multiplied by 124 years of war with the Hawaiian Kingdom. In the case of Italy, reparations could be calculated at $12 billion, which is $99 million annually multiplied by 124 years of war with the Hawaiian Kingdom.
This measurement could also be applied to other countries who are parties to the conflict and who have been complicit in the belligerent actions taken by the United States against the Hawaiian Kingdom such as the 20 States that unlawfully recognized the United States surrogate calling itself the so-called Republic of Hawai‘i in 1894. These States include Austria-Hungary, Belgium, Brazil, Chile, China, France, Germany, Guatemala, Italy, Japan, Mexico, Netherlands, Norway-Sweden, Peru, Portugal, Russia, Spain, Switzerland, and the United Kingdom. According to renowned American jurist, Professor Ellery Stowell, Intervention in International Law (1921) at 349, n. 75, a “foreign state which intervenes in support of [insurgents] commits an act of war against the state to which it belongs, and steps outside the law of nations in time of peace.”
Seizing of Assets:
Seizure of Japanese assets in the territories of Allied Powers was also done pursuant to Article 14(a)(2)(I), 1951 Japan Treaty of Peace, which states, “Subject to the provisions of sub-paragraph (II) below, each of the Allied Powers shall have the right to seize, retain, liquidate or otherwise dispose of all property, rights and interests of (a) Japan and Japanese nationals, (b) persons acting for or on behalf of Japan or Japanese nationals, and (c) entities owned or controlled by Japan or Japanese nationals, which on the first coming into force of the present Treaty were subject to its jurisdiction.”
Seizure of Italian assets in the territories of Allied Powers were made pursuant to Article 79, Italian Treaty of Peace, which states, “Each of the Allied and Associated Powers shall have the right to seize, retain, liquidate or take any other action with respect to all property, rights and interests which on the coming into force of the present Treaty are within its territory and belong to Italy or to Italian nationals, and to apply such property or the proceeds thereof to such purposes as it may desire, within the limits of its claims and those of its nationals against Italy or Italian nationals, including debts, other than claims fully satisfied under other Articles of the present Treaty.”
In the United States, Japanese assets seized amounted to $85 million (inflation conversion for 2017—$752 million), and Italian assets seized amounted to $62 million (inflation conversion for 2017—$766 million). Pursuant to Presidential Executive Order no. 9567—Alien Property Custodian (1945), the United States took title by “vesting” of all property of Japan and Germany and their nationals. Under the 1948 War Claims Act proceeds derived from these assets would not be returned, but rather placed in a War Claims Fund from which payments would be made to United States citizens that suffered as a consequence of the war with Japan and Germany.
Assets held by the United States and other States who are parties to the conflict since January 16, 1893, to include their nationals, within the territorial jurisdiction of the Hawaiian Kingdom are yet to be determined. The liquidation of these assets could be utilized in similar fashion as the United States did regarding Japanese and German properties vested under Alien Property Custodian, to compensate Hawaiian subjects who were subjected to forced conscription into the United States armed forces, to include deaths, during World War I, World War II, Korean War and the Vietnam War.
There has been some confusion as to who, in particular, determines whether a state of war exists for international law purposes. Is it a decision made by army commanders, international courts, or the heads of state? To answer this question we first need to understand the term war. By definition, war is a violent contention between two or more countries, called States, which is allowable under international law.
War as it is understood today is different from what it was understood in the nineteenth century when the Hawaiian Kingdom government was unlawfully overthrown by United States armed forces on January 17, 1893. According to Professor Brownlie, “The right of war, as an aspect of sovereignty, which existed in the period before 1914, subject to the doctrine that war was a means of last resort in the enforcement of legal rights, was very rarely asserted either by statesmen or works of authority without some stereotyped plea to a right of self-preservation, and of self-defence, or to necessity or protection of vital interests, or merely alleged injury to rights or national honour and dignity.” (Ian Brownlie, International Law and the Use of Force by States (1963) 41).
In the absence of a system of dispute resolution, such as today’s Permanent Court of Arbitration (est. 1899) or the International Court of Justice (est. 1945), war was seen as a form of judicial procedure, a litigation of sorts between nations that involved lethal punishment. It was a means by which one State could obtain redress for wrongs committed against it. War, however, was considered a course of last resort.
“It was generally thought that a state of war came into existence between two countries if, and only if, one of these countries made it clear that it regarded itself as being in a state of war,” says Judge Greenwood. (Christopher Greenwood, “Scope of Application of Humanitarian Law,” in Dieter Fleck (ed), The Handbook of the International Law of Military Operations (2nd ed., 2008) 45). Representatives of countries in international law are Heads of Governments, whether they are Presidents, Monarchs or Prime Ministers. Any political determination made by these Heads of States that their countries are in a state of war is conclusive. In the case of the United States it would be the President, and in the case of the Hawaiian Kingdom it would be the Monarch.
International law differentiates a “declaration of war” from a “state of war.” According to McNair and Watts, “the absence of a declaration…will not of itself render the ensuing conflict any less a war.” In other words, since a state of war is based upon concrete facts of military action there is no requirement for a formal declaration of war to be made. In 1946, a United States Federal Court had to determine whether a United States naval captain’s life insurance policy, which excluded coverage if death came about as a result of war, covered his death during the Japanese attack of Pearl Harbor on December 7, 1945. The family of the captain was arguing that the United States was not a war at the time of his death because the Congress did not declare war against Japan until the following day. The Court denied the family’s claim and determined, “that the formal declaration by the Congress on December 8th was not an essential prerequisite to a political determination of the existence of a state of war commencing with the attack on Pearl Harbor.” (New York Life Ins. Co. v. Bennion, 158 F.2d 260 (C.C.A. 10th, 1946), 41 American Journal of International Law (1947), 682).
On the 100th anniversary of the United States unlawful overthrow of the Hawaiian Kingdom government in 1893, the United States Congress enacted a joint resolution offering an apology. Of significance in the resolution was a particular “whereas” clause, which stated “Whereas, in a message to Congress on December 18, 1893, President Grover Cleveland reportedly fully and accurately on the illegal acts of the conspirators, described such acts as an ‘act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, and acknowledged that by such acts the government of a peaceful and friendly people was overthrown.” (Annexure 2, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 612).
At first read, it would appear that the “conspirators” were the subjects that committed the “act of war,” but this is misleading. First, under international law, only a country can commit an “act of war”, whether through its military and/or its diplomats; and, second, under municipal laws, which are the laws applicable to a particular country, conspirators within a country could only commit treason not “acts of war.” These two concepts are reflected in the terms coup de main and coup d’état. The former is a successful invasion by an outside military force, while the former is a successful internal revolt, which was also referred to in the nineteenth century as a revolution. According to the United States Department of Defense, a coup de main is an “offensive operation that capitalizes on surprise and simultaneous execution of supporting operations to achieve success in one swift stroke.” (U.S. Department of Defense, The Dictionary of Military Terms (2009)).
In a petition to President Cleveland on December 27, 1893, from the Hawaiian Patriotic League, its leadership, comprised of Hawaiian statesmen and lawyers, clearly articulated the difference between a “revolution” and a “coup de main,” and, as such, an international crime was committed. The petition read:
“Last January, a political crime was committed, not only against the legitimate Sovereign of the Hawaiian Kingdom, but also against the whole of the Hawaiian nation, a nation who, for the past sixty years, had enjoyed free and happy constitutional self-government. This was done by a coup de main of U.S. Minister Stevens, in collusion with a cabal of conspirators, mainly faithless sons of missionaries and local politicians angered by continuous political defeat, who, as revenge for being a hopeless minority in the country, resolved to ‘rule or ruin’ through foreign help. The facts of this ‘revolution,’ as it is improperly called, are now a matter of history.” (Petition of the Hawaiian Patriotic League to President Cleveland (Dec. 27, 1893), The Executive Documents of the House of Representatives (1895), 1295).
Whether by chance or design, the 1993 Congressional Apology Resolution did not accurately reflect what President Cleveland stated in his message to Congress on December 18, 1893. When Cleveland stated that the “military demonstration upon the soil of Honolulu was of itself an act of war,” he was referring to United States armed forces and not to any of the conspirators. Cleveland noted, “that on the 16th day of January, 1893, between four and five o’clock in the afternoon, a detachment of marines from the United States steamer Boston, with two pieces of artillery, landed at Honolulu. The men, upwards of 160 in all, were supplied with double cartridge belts filled with ammunition and with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies.” Clearly the act of war was committed by the armed forces of the United States. The landing, however, was just the beginning stage of a coup de main with the ultimate goal of seizing control of the Hawaiian government.
As part of the plan, the U.S. diplomat, John Stevens, would prematurely recognize the small group of insurgents on January 17th as if they were a successful revolution thereby giving it de facto status. International law, however, provides the parameters by which a revolution is deemed to have been successful. Foreign States would acknowledge success when an insurgency has secured complete control of all governmental machinery, no opposition by the lawful government, and has the acquiescence of the national population. According to Professor Lauterpacht, “So long as the revolution has not been successful, and so long as the lawful government…remains within national territory and asserts its authority, it is presumed to represent the State as a whole.” (E. Lauterpacht, Recognition in International Law (1947) 93). With full knowledge of what constitutes a successful revolution, Cleveland provided a blistering indictment:
“When our Minister recognized the provisional government the only basis upon which it rested was the fact that the Committee of Safety…declared it to exist. It was neither a government de facto nor de jure. That it was not in such possession of the Government property and agencies as entitled it to recognition is conclusively proved by a note found in the files of the Legation at Honolulu, addressed by the declared head of the provisional government to Minister Stevens, dated January 17, 1893, in which he acknowledges with expressions of appreciation the Minister’s recognition of the provisional government, and states that it is not yet in the possession of the station house (the place where a large number of the Queen’s troops were quartered), though the same had been demanded of the Queen’s officers in charge.” (Annexure 1—President Cleveland’s message to the Senate and House of Representatives dated 18 December 1893, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 605).
“Premature recognition is a tortious act against the lawful government,” explains Professor Lauterpacht, which “is a breach of international law.” (Ibid, 95). And according to Stowell, a “foreign state which intervenes in support of [insurgents] commits an act of war against the state to which it belongs, and steps outside the law of nations in time of peace.” (Ellery C. Stowell, Intervention in International Law (1921) 349, n. 75). Furthermore Stapleton states, “Of all the principles in the code of international law, the most important—the one which the independent existence of all weaker States must depend—is this: no State has a right FORCIBLY to interfere in the internal concerns of another State.” (Augustus Granville Stapleton, Intervention and Non-Intervention (1866) 6).
Cleveland then explained to the Congress the egregious effects these acts of war had upon the Hawaiian government and its apprehension of a “cabal of conspirators” who committed high treason.
“Nevertheless, this wrongful recognition by our Minister placed the Government of the Queen in a position of most perilous perplexity. On the one hand she had possession of the palace, of the barracks, and of the police station, and had at her command at least five hundred fully armed men and several pieces of artillery. Indeed, the whole military force of her kingdom was on her side and at her disposal, while the Committee of Safety, by actual search, had discovered that there were but very few arms in Honolulu that were not in the service of the Government. In this state of things if the Queen could have dealt with the insurgents alone her course would have been plain and the result unmistakable. But the United States had allied itself with her enemies, had recognized them as the true Government of Hawaii, and had put her and her adherents in the position of opposition against lawful authority. She knew that she could not withstand the power of the United States, but she believed that she might safely trust to its justice. Accordingly, some hours after the recognition of the provisional government by the United States Minister, the palace, the barracks, and the police station, with all the military resources of the country, were delivered up by the Queen upon the representation made to her that her cause would thereafter be reviewed at Washington, and while protesting that she surrendered to the superior force of the United States, whose Minister had caused United States troops to be landed at Honolulu and declared that he would support the provisional government, and that she yielded her authority to prevent collision of armed forces and loss of life and only until such time as the United States, upon the facts being presented to it, should undo the action of its representative and reinstate her in the authority she claimed as the constitutional sovereign of the Hawaiian Islands.” (Annexure 1—President Cleveland’s message to the Senate and House of Representatives dated 18 December 1893, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 606).
According to Professor Wright, “War begins when any state of the world manifests its intention to make war by some overt act, which may take the form of an act of war.” Quincy Wright, “Changes in the Concept of War,” 18 American Journal of International Law (1924) 758). In his review of customary international law in the nineteenth century, Professor Brownlie concluded, “that in so far a ‘state of war’ had any generally accepted meaning it was a situation regarded by one or both parties to a conflict as constituting a ‘state of war.’” (Brownlie, 38).
Cleveland concluded by an “act of war…the Government of a feeble but friendly and confiding people has been overthrown.”(Annexure 1—President Cleveland’s message to the Senate and House of Representatives dated 18 December 1893, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 608). More importantly, Cleveland referred to the Hawaiian people as “friendly and confiding,” not “hostile.” This is a classic case of where the United States President admits an unjust war, but a state of war nevertheless. In the absence of a treaty or agreement to end the state of war that has ensued for over a century, international humanitarian law regulates the Hawaiian situation.
These are the very matters that will come before the International Commission of Inquiry: Incidents of War Crimes in the Hawaiian Islands—The Larsen Case.
As the Tribunal at the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom pointed out in, “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.” (Award, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 581). As an independent State, the Hawaiian Kingdom was a member of the Family of Nations along with other independent States including the United States. According to Westlake in 1894, they comprised, “First, all European States […] Secondly, all American States […] Thirdly, a few Christian States in other parts of the world, as the Hawaiian Islands, Liberia and the Orange Free State.” (John Westlake, Chapters on the Principles of International Law (1894) 81).
In 1893, there were 44 independent and sovereign States in the Family of Nations: Argentina, Austria-Hungary, Belgium, Bolivia, Brazil, Bulgaria, Chili, Colombia, Costa Rica, Denmark, Ecuador, France, Germany, Great Britain, Greece, Guatemala, Hawaiian Kingdom, Haiti, Honduras, Italy, Liberia, Lichtenstein, Luxembourg, Netherlands, Mexico, Monaco, Montenegro, Nicaragua, Orange Free State that was later annexed by Great Britain in 1900, Paraguay, Peru, Portugal, Romania, Russia, San Domingo, San Salvador, Serbia, Spain, Sweden-Norway, Switzerland, Turkey, United States of America, Uruguay, and Venezuela. In 1945, there were 45, and today there are 193.
From a State of Peace to a State of War—No Middle Ground
International law, which is law between nations, formed the protocol and relations between these member States. “Traditional international law was based upon a rigid distinction between the state of peace and the state of war,” states Judge Greenwood (Christopher Greenwood, “Scope of Application of Humanitarian Law,” in Dieter Fleck (ed), The Handbook of the International Law of Military Operations (2nd ed., 2008) 45). “Countries were either in a state of peace or a state of war; there was no intermediate state.” (Ibid.) This is also reflected by the fact that the renowned jurist of international law, Lassa Oppenheim, separates his treatise on International Law into two volumes, Vol. I—Peace, and Vol. II—War and Neutrality.
Throughout the nineteenth century, the Hawaiian Kingdom was not only independent and sovereign, but also a neutral State explicitly recognized by treaties with Germany, Spain and Sweden-Norway. The Hawaiian Kingdom enjoyed a state of peace with all States. This status of affairs, however, was interrupted by the United States when the state of peace was transformed to a state of war that began on January 16, 1893. On January 17, 1893, Queen Lili‘uokalani, the Executive Monarch of the Hawaiian Kingdom, made the following protest and a conditional yielding of her authority to the President of the United States in response to military action taken against the Hawaiian government by order of the U.S. resident diplomat John Stevens. The Queen’s protest stated:
“I, Liliuokalani, 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, under this protest, and impelled by said force, yield my authority until such time as the Government of the United States shall, upon the 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.” (Annexure 2, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 612).
Under international law, the landing of American troops without the consent of the Hawaiian government was an act of war. But in order for an act of war to transform the status of affairs to a state of war, the act must be unlawful under international law. In other words, an act of war would not change the status of affairs to a state of war from that of peace if the action were legal under international law. According to Professor Wright, “An act of war is an invasion of territory…and so normally illegal. Such an act if not followed by war gives grounds for a claim which can be legally avoided only by proof of some special treaty or necessity justifying the act.” (Quincy Wright, “Changes in the Concept of War,” 18 American Journal of International Law (1924), 756).
Military action in a foreign State considered lawful under international law, includes proportionate reprisals in response to another State’s action just short of all out war, and military actions taken to protect its citizenry in the foreign State. Furthermore, the act of war must have been intentional—animo belligerendi, to overthrow the government of the invaded State. As international law is a law between States, which derives from agreements, the claim made by Queen Lili‘uokalani that United States troops unlawfully invaded the kingdom had to be acknowledged by the President of the United States as true. In her protest she called upon the President to investigate the facts and then “undo the action of its representatives and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.” In international law, this is called restitutio in integrum.
After ten months of investigating the overthrow, President Cleveland notified the Congress on December 18, 1893, that the “military demonstration upon the soil of Honolulu was of itself and act of war” that could not be justified under international law as “either with the consent of the Government of Hawaii or for the bona fide purpose of protecting the imperiled lives and property of citizens of the United States.” (Annexure 1—President Cleveland’s message to the Senate and House of Representatives dated 18 December 1893, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 604).
The President then concluded, “By an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown.” (Ibid, 608). He notified the Congress that he initiated negotiations with the Queen “to aid in the restoration of the status existing before the lawless landing of the United States forces at Honolulu on the 16th of January last, if such restoration could be effected upon terms providing for clemency as well as justice to all parties concerned.” (Ibid, 610). What Cleveland did not know at the time of his message to the Congress was that the Queen, on the very same day in Honolulu, accepted the conditions for settlement in an attempt to return to a state of peace. The executive mediation began on November 13, 1893 between the Queen and U.S. diplomat Albert Willis. The President was not aware of the agreement until January 12, 1894.
Despite being unaware of the agreement to settle, President Cleveland’s political determination was an acknowledgment that the United States was in a state of war with the Hawaiian Kingdom since the invasion occurred on January 16, 1893, as stated by the Queen in her protest on January 17, 1893. International law defines war as “a contention between States for the purpose of overpowering each other.” (L. Oppenheim, International Law, vol. II—War and Neutrality (3rd ed., 1921) 74).
Once a state of war ensued between the Hawaiian Kingdom and the United States, “the law of peace ceased to apply between them and their relations with one another became subject to the laws of war, while their relations with other states not party to the conflict became governed by the law of neutrality.” (Greenwood, 45). This outbreak of a state of war between the Hawaiian Kingdom and the United States would “lead to many rules of the ordinary law of peace being superseded…by rules of humanitarian law.” (Ibid, 46).
A state of war “automatically brings about the full operation of all the rules of war and neutrality.” (Myers S. McDougal, “The Initiation of Coercion: A Multi-temporal Analysis,” 52 American Journal of International Law (1948) 247). And according to Venturini, “If an armed conflict occurs, the law of armed conflict must be applied from the beginning until the end, when the law of peace resumes in full effect.” (Gabriella Venturini, “The Temporal Scope of Application of the Conventions,” in Andrew Clapham, Paola Gaeta, and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary (2015), 52). Only by a treaty or agreement between the Hawaiian Kingdom and the United States could a state of peace be restored, without which a state of war ensues.
In order to transform the state of war to a state of peace an attempt was made by executive agreement entered into between President Cleveland, by his resident diplomat Albert Willis, and Queen Lili‘uokalani in Honolulu on December 18, 1893 (David Keanu Sai, “A Slippery Path Towards Hawaiian Indigeneity: An Analysis and Comparison between Hawaiian State Sovereignty and Hawaiian Indigeneity and Its Use and Practice Today,” 10 Journal of Law and Social Challenges (2008) 119-127). Cleveland, however, was unable to carry out his duties and obligations to restore the situation that existed before the unlawful landing of American troops due to political wrangling in the Congress. The state of war continued.
It is a common misconception that only through a declaration of war by the Congress could a state of war exist for the United States. A Federal court in 1946, however, dispensed with this theory in New York Life Ins. Co. v. Bennion. The Court stated, “it cannot be denied that the acts and conduct of the President, acting in furtherance of his constitutional authority and duty, would constitute a political determination of a state of war of which the courts would take judicial notice. We can discern no demonstrable difference in the supposition and the actual facts, and we therefore conclude that the formal declaration by the Congress on December 8th was not an essential prerequisite to a political determination of the existence of a state of war commencing with the attack on Pearl Harbor [on December 7th].” (New York Life Ins. Co. v. Bennion, 158 F.2d 260 (C.C.A. 10th, 1946), 41 American Journal of International Law (1947), 682).
Therefore, the conclusion reached by President Cleveland that an act of war had been committed by the United States was a “political determination of the existence of a state of war,” and that a formal declaration of war by the Congress was not essential. The “political determination” by President Cleveland regarding the actions taken by the military forces of the United States on January 16, 1893, was the same as the “political determination” by President Roosevelt regarding actions taken by the military forces of Japan on December 7, 1945. Both “political determinations,” being acts of war, created a state of war for the United States. A declaration of war by the Congress was not essential in both situations.
The Duty of Neutrality by Third States
When the President declared that a state of war existed by an act of war committed by the American military in his message to Congress, all of the other 42 States were under a duty of neutrality. “Since neutrality is an attitude of impartiality, it excludes such assistance and succour to one of the belligerents as is detrimental to the other, and, further such injuries to the one as benefit the other.” (L. Oppenheim, International Law, vol. II—War and Neutrality (3rd ed., 1921) 401).
The duty of a neutral State, not a party to the conflict, “obliges him, in the first instance, to prevent with the means at his disposal the belligerent concerned from committing such a violation,” e.g. to deny recognition of a puppet government unlawfully created by an act of war. (Ibid, 496). Twenty of these States violated their obligation of impartiality by recognizing the so-called Republic of Hawai‘i, a United States puppet government created by an act of war committed by the United States on January 17, 1893. These States include:
- Austria-Hungary (January 1, 1895);
- Belgium (October 17, 1894);
- Brazil (September 29, 1894);
- Chile (September 26, 1894);
- China (October 22, 1894);
- France (August 31, 1894);
- Germany (October 4, 1894);
- Guatemala (September 30, 1894);
- Italy (September 23, 1894);
- Japan (April 6, 1897);
- Mexico (August 8, 1894);
- Netherlands (November 2, 1894);
- Norway-Sweden (December 17, 1894);
- Peru (September 10, 1894);
- Portugal (December 17, 1894);
- Russia (August 26, 1894);
- Spain (November 26, 1894);
- Switzerland (September 18, 1894); and
- United Kingdom (September 19, 1894).
“If a neutral neglects this obligation, he himself thereby commits a violation of neutrality, for which he may be made responsible by a belligerent who has suffered through the violation of neutrality committed by the other belligerent and acquiesced in by him.” (Ibid, 497). The recognition of the so-called Republic of Hawai‘i did not create any legality or lawfulness on the part of the puppet regime, but rather is the indisputable evidence that these States’ violated their duty to be neutral. Diplomatic recognition of governments occurs during a state of peace and not during a state of war, unless providing recognition of belligerency status. The recognitions were not recognizing the Republic as a belligerent in a civil war with the Hawaiian Kingdom, but rather under the false pretense that the Republic succeeded in a revolution and therefore was the new government of Hawai‘i during a state of peace. As such, their relationship with the Hawaiian Kingdom has since been regulated by humanitarian law.
State of War—No Question
The state of war has ensued to date, only to be concealed by a false narrative promoted by the United States government that Hawai‘i was purportedly annexed in 1898 through American legislation (Sai, Slippery Path, 84-94), coupled with a formal policy of the war crime of denationalizing school children beginning in 1906. The purpose of the policy was to obliterate the national consciousness of the Hawaiian Kingdom in the minds of the children and replace it with American patriotism. Within three generations, the effect of the denationalization was nearly complete.
The Hawaiian Kingdom has been in a “legal” state of war with the United States for over a century and the application of the laws of occupation and applicable humanitarian law has not diminished. Without a treaty between the Hawaiian Kingdom and the United States to return the state of affairs back to a state of peace, the state of war continues. As Judge Greenwood stated, “Countries were either in a state of peace or a state of war; there was no intermediate state.”
This is the longest state of war ever to have taken place in the history of international relations, which has created a humanitarian crisis of unimaginable proportions. International humanitarian laws apply, which includes customary international law regarding war and neutrality, 1907 Hague Regulations and the 1949 Geneva Conventions.
Proceedings to establish an International Commission of Inquiry under Part III of the 1907 Hague Convention for the Pacific Settlement of International Disputes stemming from the Larsen v. Hawaiian Kingdom arbitration held under the auspices of the Permanent Court of Arbitration (1999-2001) were initiated under a Special Agreement dated January 19, 2017. The title for these proceedings is “Incidents of War Crimes in the Hawaiian Islands—The Larsen Case.”
On March 3, 2017, Professor Francesco Francioni was designated by the parties by a supplemental agreement to be the appointing authority, whose function is to form the International Commission of Inquiry. Professor Francioni is an ad hoc judge on the International Tribunal for the Law of the Sea as well as serving as one of five arbitrators in a dispute under the auspices of the Permanent Court of Arbitration, The “Enrica Lexie” Case (Italy v. India). The parties notified the appointing authority that the prospective commissioners shall not United States citizens; must have command of the English language; have expertise in international humanitarian law; and include, at least, one woman.
Article I of the Special Agreement was amended by the parties on March 26, 2017 to allow the Commission to designate a Secretary General to serve as a registry, and for the President of the Commission to work with the Secretary General in order to determine a location for the sitting of the Commission. The only stipulation by the parties is that the sitting shall be in Europe.
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