HAWAII ISLAND (BIVN) – A Fact Finding Commission is being initiated at the Permanent Court of Arbitration at The Hague. The new advocate for the Kingdom, Dr. Federico Lenzerini, spoke to Puna residents on Friday.
HAWAII ISLAND – The Counsel and Advocate representing the Hawaiian Kingdom in a recently initiated international fact finding proceeding spoke to a small audience at a Puna home on Friday evening.
Dr. Federico Lenzerini, Professor of International law from the University of Siena Law Department in Italy, talked about the complexities of a new special agreement to form a Commission of Inquiry under the auspices of the Permanent Court of Arbitration at The Hague. Lenzerini spoke in the garage of Kale Gumapac’s Hawaiian Paradise Park home.
Dr. Lenzerini, working alongside Dr. Keanu Sai – a well known political scientist and lecturer at the University of Hawai‘i – said the proceeding picks up where the Larsen v the Hawaiian Kingdom case left off in 2001.
On January 19, 2017, the Hawaiian Kingdom Government and Lance Paul Larsen entered into a Special Agreement to form a Fact-finding Commission that would delve into the alleged occupation of the Hawaiian Kingdom by the United States. Dr. Sai has been working as agent for the Kingdom in the international arbitration.
Over the past week, Lenzerini and Sai have been making the rounds in Hawaii, building awareness of the fact-finding inquiry by filming TV interviews and even making a large presentation at the Kamehameha School Kapalama Campus on January 30.
The Larsen dispute began in 1999. Larsen, a Hawaiian subject, alleged that the Government of the Hawaiian Kingdom is in “continual violation of its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America”, as well as “the principles of international comity” by allowing “the unlawful imposition of American municipal laws … within the territorial jurisdiction of the Hawaiian Kingdom.”
Documents say Larsen “served an illegally imposed jail sentence resulting directly from the continued unlawful imposition and enforcement of American municipal laws within the Hawaiian Kingdom.”
The dispute was taken up by a Tribunal at the Permanent Court of Arbitration. Both parties were seeking a ruling from the tribunal that would “decide and determine the territorial dominion of the Hawaiian Kingdom under all applicable international principles, rules and practices.”
Dr. Keanu Sai represented the Hawaiian Kingdom as its agent in the proceeding. Dr. Sai maintained the party responsible for the violation of the Larsen’s rights, as a Hawaiian subject, was the United States Government. Both Larsen and the Kingdom agreed “the primary cause of these injuries is the prolonged occupation of the Hawaiian Islands by the United States of America.”
The United States was not a party to the agreement to arbitrate, and did not participate in the proceeding.
In its Award, the Tribunal determined that “there is no dispute between the parties capable of submission to arbitration” and that, “the Tribunal is precluded from the consideration of the issues raised by the parties by reason of the fact that the United States of America is not a party to the proceedings and has not consented to them.”
Although the Tribunal’s award did not make a determination involving the occupation, both Dr. Sai and Dr. Lenzerini say the Kingdom was acknowledged as a State for administrative purposes by the Permanent Court of Arbitration. The proceeding also opened the door to a fact finding inquiry.
“At one stage of the proceedings the question was raised whether some of the issues which the parties wished to present might not be dealt with by way of a fact-finding process,” the Tribunal’s award stated.
“In addition to its role as a facilitator of international arbitration and conciliation,” the Award document states, “the Permanent Court of Arbitration has various procedures for fact finding, both as between States and otherwise.”
The Tribunal noted a new special agreement would be needed between Larsen and the Kingdom before fact-finding could be initiated.
The Hague Conventions of 1899 and 1907 provide for International Commissions of Inquiry. However, the costs of the fact-finding process – which amounted in excess of $150,000, participants say, to be bore by the claimant, Mr. Larsen – delayed the action.
In the Special Agreement reached this January, it was decided that the Hawaiian Kingdom will bear the burden of costs for the fact-finding. On January 24, 2017 the International Bureau of the PCA was notified by joint letter to initiate the proceedings. A $10,000 advance deposit has already been made towards the costs.
Lenzerini, with his wife and child by his side, stopped by Gumapac’s house en route to a visit to see the volcanic activity down by Kalapana. Gumapac has worked closely with Dr. Sai on separate matters involving the U.S. occupation which have also been presented at the international level.
The Commission of Inquiry is not a Tribunal, Lenzerini told those assembled in Puna. There will be no judgement, only an evaluation of the facts under the perspective of international humanitarian law.
It is important that the determinations be made public, Lenzerini said, “so it will be possible to spread the knowledge of the history and of the truth of the Hawaiian kingdom within the international community,” since Larson and the Kingdom have agreed to make the findings public.
Next will be the nomination of an appointing authority who will be tasked with nominating the three-member Commission of Inquiry.
The appointing authority must be impartial, competent, and have “a very definite idea about who can be the best personalities to serve as members of the commission,” Lenzerini said.
These rules of international humanitarian law apply to military occupations even where there has been no resistance, as happened in Hawaii at the end of the 19th century.
The Commission of Inquiry will have the task to give an opinion on this point, according to Lenzerini: What is the position of the Hawaiian Kingdom under international humanitarian law, and what are the duties of the Hawaiian Kingdom towards its citizens, “first of all Mr. Larsen, then its citizens living here in Hawaii or abroad, and even aliens. Aliens who come here and are subject to the laws enforced in this land.”
Several rules of international humanitarian law are applicable, Lenzerini says, including pillaging, the obligation to administer the laws of the occupied country, deprivation of public property, and violation of a fair trial, among others.
Lenzerini cautioned those in attendance that “sometimes it is quite hard to guarantee the effectiveness of the rules” of international law.
“There are no avenues to claim respect,” Lenzerini said. Especially when – in this case, the United States – an “indispensable third party” is not a part to the agreement for international arbitration and cannot be bound by a commission’s rulings.
Lenzerini says that a fact finding is different, however. Although there will be no determination, Lenzerini believes the inquiry will provide a forum for the stories of Hawaii’s people to be known by the international community. He expects there could be an opportunity to provide testimony and evidence, depending on the will of the Commission that is formed.
These things usually last for quite a long time. “Talking about years,” Lenzerini said.
According to its website, the Permanent Court of Arbitration (PCA) is “an intergovernmental organization established by the 1899 Hague Convention on the Pacific Settlement of International Disputes. The PCA has 121 Member States.” The PCA is headquartered at the Peace Palace in The Hague, the Netherlands, and “facilitates arbitration, conciliation, fact-finding, and other dispute resolution proceedings among various combinations of States, State entities, intergovernmental organizations, and private parties.”
Pūnana Leo o Kona presents the 4th annual ʻAha Aloha ʻŌlelo on January 14, 2017 from 9:00am to 4:00pm at Makaʻeo (Old Airport Pavilion). ʻAha Aloha ʻŌlelo is an event for the entire ʻohana featuring live entertainment by Danny Carvalho, Kalani Peʻa, Duncan Kamakana Osorio, Jon Osorio and Jamaica Osorio. The event will also feature vendors, Hawaiian food and a Keikiland with bouncers, games and a petting zoo. A Hawaiian language competition with well over 100 competitors from schools such as Pūnana Leo o Kona, ʻEhunuikaimalino, Nāwahīokalaniʻōpuʻu and Pūnana Leo o Waiʻanae from Waiʻanae, Oʻahu will also be held. Tickets to the event are $10 or $12 at the door and keiki 10 and under are free.
The theme of this yearʻs Hawaiian language competition is built around a speech given on September 6, 1896 at a Hālāwai Makaʻāinana at Palace Square in Honolulu by James Keauiluna Kaulia, calling on the people of Hawaiʻi to “kūʻē loa aku i ka hoʻohui ʻia o Hawaiʻi me ʻAmelika a hiki i ke aloha ʻāina hope loa!” Kaulia was the President of the Hui Aloha ʻĀina, or Hawaiian Patriotic League when the question of annexing Hawaiʻi to the United States was before the U.S. government. Kaulia and others, including David Kalauokalani, Emma Nāwahī and Kuaihelani Campbell, led a petition drive protesting the annexation of Hawaiʻi to the United States of America. They sent out delegates to each island and all of its communities and through their collective efforts, over 37,000 signatures were gathered during a time in Hawaiian history where there were only about 40,000 Native Hawaiians alive.
After the gathering of the signatures, Kaulia and Kalauokalani, along with John Richardson and William Auld, traveled to Washington D.C. to deliver the anti-annexation petitions. Upon arriving to D.C., it was known that there were already 58 votes in U.S Congress for annexation, with only two more votes being needed to ratify the treaty presented to congress by the unlawful Republic of Hawaiʻi under Sanford Dole. The Commission was able to meet with many different Senators and Congressmen and they were able to have the annexation petitions read to the Senate and formally accepted. By the time the Commission left Washington D.C. to return back to Hawaiʻi, there were only 46 votes in the Senate for annexation, far below the 60 votes required to ratify the treaty. The treaty of annexation was dead. Hawaiʻi remained an independent country, as it has been since November 28, 1843, albeit under an illegal, unlawful and self-proclaimed government.
“These petitions show us the potential of our Lāhui. Our kūpuna were actively engaged in the political issues surrounding them and their country. We are in a point of history where we face very similar issues,” said Kahoʻokahi Kanuha, the organizer of the Hawaiian language competition. “I am hopeful that this competition and event will remind us of the inherited kuleana we have to this ʻāina. These petitions show us who we were, who we are and most importantly who we still must be.”
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.”
Below is a reprint of an article published in the Polynesian newspaper in 1845. The author is William Richards being one of the commissioners along with Timoteo Ha‘alilio and Sir George Simpson who were commissioned by King Kamehameha III with the purpose of securing the recognition of the Hawaiian Kingdom as an independent State from Great Britain, France and the United States. Of the three, Ha‘alilio did not survive. He passed away on the ship The Montreal on his way home after departing Hawai‘i in 1842.
OFFICIAL JOURNAL OF THE HAWAIIAN GOVERNMENT.
HONOLULU, SATURDAY, MARCH 29, 1845.
The Montreal, from Boston, arrived off our harbor on Sunday last, at day break. Her ensign was noticed to be half-mast, and various conjectures began to circulate through the town, when William Richards, Esq., H.H.M.’s Commissioner to the U. States and Europe, whose arrival has been so long and anxiously awaited, landed and proceeded directly to the palace, where he immediately made known to their Majesties the melancholy news of the death of his fellow Commissioner, Mr. T. Haalilio, who died at sea on the 3d Dec. ult. The sad intelligence soon spread over the place; the flags of the men of war, merchant vessels, the consulates, batteries and other places, were immediately lowered to half-mast as a general expression of sympathy at the nation’s loss. Great hopes had been entertained both among Hawaiians and foreigners, of the good results that would ensue to the kingdom from the addition to its councils of one of so intelligent a mind, stored as it was with the fruits of observant travel, and the advantages derived from long and familiar intercourse in the best circles of Europe and the United States. A numerous band of personal friends to whom he had been endeared from his earliest intercourse by his sincerity of manners and peculiarly affectionate deportment, were earnestly looking to welcome him home. But above all, their Majesties, his intimate friends, the Governors, the other high chiefs and his widowed mother were awaiting his arrival with an earnestness of hope that the deepest affections of the heart can alone produce. The last tidings from him had been those of health. He was then soon to embark, and his speedy arrival to the shores and friends he loved so well, was anticipated without a doubt. So unexpected a termination of his existence, after having escaped the dangers of long and trying journe[y]s and voyagings, while as it were, on the very eve of again treading his native land, brings with it more than common anguish. It is not for us to life the veil and expose the scene which ensued at the palace upon the communication of the tidings. The whole court were there assembled. Those who had been suddenly deprived of their choicest hope when on the eve of its full indulgence, can alone estimate the bereavement.
It is satisfactory to know that every attention affection or sympathy could suggest, was afforded the deceased. Previous to our own departure from the United States, we were a witness to the deep interest and respect which Mr. Haalilio received in the refined society of Boston. But our already crowded columns will not allow us further to dilate. From Mr. Richards he received in all stages of his journey the most unremitting care, and towards the close of his life he was ever at his bed-side. Our readers will be able to glean from the brief memoir which follows this, prepared by Mr. R. some further insight into his life and untimely end. We say untimely, but man seeeth not as god seeeth.
Haalilio was born in 1808, at Koolau; Oahu. His parents were of respectable rank, and much esteemed. His father died while he was quite young, and his widowed mother subsequently married the Governor of Molokai, an island depend[e]nt on the Governor of Maui. After this death, she retained the authority of the island, and acted as Governess for the period of some fifteen years.
At the age of about eight years, Haalilio removed to Hilo on Hawaii, where he was adopted in the family, and became one of the playmates, of the young prince, now King of the Islands. He traveled round to different parts of the Islands with the prince, conforming to the various heathenish rites which were then in vogue. From that period he remained one of the most intimate companions and associates of the King.
At the age of about thirteen, he commenced learning to read, and was a pleasant pupil and made great proficiency. There were then no regularly established schools, and he was a private pupil of Mrs. Bingham. He learned to read English as well as Hawaiian, though at that period he did not understand what he read. He was taught arithmetic and penmanship by Mr. Bingham, and was early employed by the King to do his writing–not as an official secretary, but as an amanuensis or clerk. As be advanced in years he had various duties and employments assigned him, requiring skill and responsibility. Being associated with the King, he was always received into society with him, and thus enjoyed various advantages which he prized very much and improved in the best manner. He thus became acquainted with the usages of good society which he never failed to adopt as fast as he became acquainted with them.
To him also the King committed the charge of his private purse, which he held till the time of his embarkation. It thus became his duty to make most of the purchases required by the King, and he thereby had opportunity to become acquainted with the detail of mercantile business, of which he acquired a very commendable knowledge. His habits of business were many of them worthy of imitation even by the most enlightened. He was in a good degree systematic, and was extremely careful of every thing committed to this charge.
Besides acquaintance with mercantile transactions, he also acquired a very full knowledge of the political relations of the country. He was a strenuous advocate for a constitutional and representative government, and aided not a little in effecting those changes by which the rights of the lower classes have been secured. He was well acquainted with the practical influence of the former system of government, and considered a change necessary to the welfare of the nation.
The King and Chiefs could not fail to see the real value of such a man, and they therefore promoted him to offices to which his birth would not, according to the old system, have entitled him. He was properly the Lieutenant-Governor of the Island of Oahu, and regularly acted as Governor during the absence of the incumbent. It was expected also that he would succeed the present Governor in his office, had he outlived him. He was also elected a member of the council of Nobles, and materially aided that body in their deliberations. At the last meeting of the Legislature previous to his leaving the country, he was chosen President of the Treasury Board, and thus in a considerable degree he had control of the finances of the nation.
In the month of April, 1842, he was appointed a joint Commissioner with Mr. Richards, to the Courts of the U.S.A, England and France. He embarked on the 18th of July following on board the sch. Shaw, and arrived at Mazatlan Sept. 1st. While on the passage he often talked of home and friends with a tenderness and emotion that showed a high degree of sensibility and refinement. On his arrival at port, he was received with great hospitality. In crossing Mexico, he was deeply interested in noticing the peculiarities of the scenery, the character of the people, and the natural history of the country. Nothing escaped his observation; and the correctness and good sense of his remarks, rendered him not merely a pleasant but a profitable companion. After spending a fortnight at Vera Cruz, he was by the politeness of Capt. Newton received on board the U.S. steamer Missouri, about to sail to the mouth of the Mississippi. On board that vessel he had the company of Mr. Mayer, the U.S. Sec. of Legation at Mexico; and Mr. Southall, Bearer of Despatches, with whom he proceeded to New Orleans, and then by the mail route to Washington, where he arrived on the 3d of Dec. The results of his embassy there, are already before the public. After spending a month at Washington, and having accomplished the main objects of embassy there, he proceeded to the north, making a short stay of only two days in New York; but on his arrival in the western part of Massachusetts, was attacked by a severe cold, brought on by the inclemencies of the weather, followed by a change in the thermometer of about sixty degrees in twenty-four hours. Here was probably laid the foundation of that disease by which his short but eventful life has been so afflictingly closed.
He however so far recovered that he embarked for England in the steamer Caledonia, on the 2d of Feb. 1843, and arrived in London on the 18th of the same month, and was apparently at that time in perfect health. He immediately entered on the business of his embassy, and before six weeks had expired, had the happiness to receive from the Earl of Aberdeen, the official and solemn declaration that “Her Majesty’s Government are willing and have determined to recognize the independence of the Sandwich Islands under their present Sovereign.” He was also received and treated with high consideration by all persons of distinction to whom he was introduced. The Hon. Mr. Ellis; Sir Henry Pelly; the Earl of Selkirk; the Duke and Duchess of Sommerset; Sir Augustus d’Este, cousin of the Queen; the Lord Chamberlain; and the Mayor of London, were among the number of those from whom he received special attentions. While in Europe, as well as in the U.S.A., he made it a special business to visit and examine all objects of public interest which claim the attention of the traveller. The various manufacturing establishments, the museums, the hospitals, the prisons, the great works of architecture, the ancient palaces and cathedrals, the bridges, dockyards, and mausoleums of the dead,–the public schools and institutions of charity, and various religious establishments; all received his attention, and produced an influence on his mind which it was most interesting to witness.
After accomplishing the object of his embassy to England, he proceeded to France, where he was received in the same respectful manner as in England, and after carious delays, finally succeeded in obtaining from the French Government, not only a recognition of independence, but also a mutual guarantee from England and France that that independence should be respected. In Belgium he was honored with an interview with the King Leopold, and received the same recognition of independence as had been obtained from the other nations. The persons from whom he received special attentions in France, were M. Guizot; Count and Countess Gasparin; the Lafayette family; Count de la Bonde; Duke de Caze; Admiral Baudin; Duke de Broglie; the Baron Champloies; Count Pellet; Count Salvandy; M. de Toqueville; Lady Elgin, and others. In all the society he visited, he never failed to secure entire respect.
After spending about fifteen months in Europe, he returned to the U. S. A. in the Britannia, and reached Boston on the 18th of May ult. It should have been mentioned however, that while in Paris in June 1843, he was affected by a cold, rheumatic pains and coughs, which soon yielded to medical treatment, and his health again became good. But in Jan. last he was more seriously afflicted, being confined to his room, and mostly to his bed, for a period of more than four weeks. At this time his cough was very severe, the soreness of his breast great, and his symptoms in many respects threatening. He soon recovered, however, and on his arrival in the U.S.A. was in good health. He spent most of the summer in traveling. He visited Washington again, and proceeded to Wheeling, Va.; thence to Pittsburg, and on to Cleveland, Ohio, and down the lake to Buffalo, and Niagara Falls; thence through lake Ontario to Syracuse, Albany, and down the Hudson to New York.
He subsequently returned to Albany, and thence on through White-Hall and lake Champlain to Montreal in Canada. He returned through the interior of Vermont and New Hampshire to Boston, where he spent a few weeks, visiting the various places of importance in that vicinity; Cambridge, Charleston, Roxbury, Plymouth, Quincey, Newburyport, Andover, Lowell, and other places. It is impossible to describe the interest that he took in these visits, or the profit he appeared to derive from them.
But it is now time to revert to another trait in his character; I mean his religious views and affections.
But a few days after we embarked from the Islands, as he opened his trunk, I noticed the Hawaiian Bible lying in it, which he took and began to read. This was the commencement of a practice which he followed till his frame was too weak to follow it longer. Few if any days passed except when actually traveling or employed in important business, in which he was not seen reading that precious book. A few days previous to his death he told me he had read it twice through in course since he left the Islands, beside all his incidental reading. Besides the Scriptures, he read much in other books of a religious character, though his reading was by no means confined to nor was it principally religious books. After exhausting his Hawaiian library, he read considerable in English.
To show his feelings on the subject of prayer, I will mention, that after traveling in Mexico for a number of successive days, and every night being in the midst of company and bustle, without a possibility of retirement, we at last arrived at the hospitable dwelling of an E[n]glish gentlemen, who at bed time conducted us to a retired and pleasant chamber. Our host had scarcely left us when Haalilio turned his eyes and surveying the room for a moment said with an expressive countenance, “We have at last found a place where we can pray.” He showed that he was not a stranger to prayer. The apparent humility with which he made confession of sins, the fervency with which he asked Divine aid in the business of our embassy, and the tenderness with which he implored the blessing of Heaven on his friends and countrymen, early led me to feel that prayer with him was not a mere empty form. From that time down to the last sad hour of his life, I had evidence that in a good degree he kept the commandment.—”Be instant in prayer.” Many and many a night when he supposed me to be asleep, have I heard his voice or rather whisper, laying open his heart before his Maker.
By the deep interest which he manifested in a faithful observance of the Sabbath, he showed that he was not regardless of the Divine requisitions. While in France and Belgium, never a Sabbath passed in which he did not express his astonishment at the public, open, and constant violation of God’s holy day. On the contrary, while in England and the U. S. A. he as often expressed his admiration as he witnessed the stillness of the streets and the multitudes of those who thronged the house of God.
The illness which terminated his life commenced on the 13th of Sept. last, while in Brooklyn, New York. At first he merely complained of slight rheumatic pain, and indisposition to exercise. At the end of a week it suddenly increased and exhibited the usual marks of a cold. Medicine was promptly administered, and after keeping his room for a week, he was so much better as to leave it and take exercise in open air. But as he recovered from his rheumatism, I noticed an increase of cough, especially in the morning. To this I called the attention of the physician. He considered the cough as merely symptomatic, and giving a common cough mixture, predicted its early removal. On the 16th of Oct. he removed to Boston, and the first physicians of the city were immediately called. They pronounced his lungs sound, and his disease to be a slow fever. On the third day however, their opinion changed, and they thought his lungs affected, but not seriously. At their advice, and the advice of numerous other friends, he was removed to the Massachusetts Hospital, where every thing was done which science could prescribe, or medicine effect. But his disease made rapid strides, and his flesh wasted fast.
During the whole period of his illness he took a rational and correct view of his own case. He early discovered the danger of his symptoms, yet never appeared alarmed, nor renounced the hope of recovery, until a few days previous to his death. And in all circumstances he appeared calm and resigned, saying, “Father, not my will but thine be done.” While at the Hospital, I heard him whisper this in prayer, at the still hour of midnight, while he supposed I was asleep. On one occasion, I noticed him wiping the tear from his cheek, and went to his bedside to sympathi[z]e and comfort him. He immediately said, “I was not weeping for myself, but for you.” I inquired if he was not anxious to live and reach the Islands. He replied, “Not on my own account. I [s]hould indeed be glad to tell the chiefs and people what I have seen, and in their presence dedicate myself to God; but respecting myself I do not feel anxious.” The great subjects of those prayers which I overheard were confessions of sin, pleading for relief from suffering, imploring blessings on his mother, on the King and on his countrymen. He prayed also that he might live to reach the Islands; but this prayer was usually conditional, and ended with “Aia no ia oe”–it is with thee, or, they will be done. Before he came on board, he dictated a few affecting sentences to the King and Chiefs.–The second Sabbath we were at sea, he became convinced that he could not live, and gave farther charge to be delivered to the King and Chiefs. He expressed also a wish to be bapti[z]ed. On the evening of that Sabbath, while speaking of his pain and sufferings and immediate prospect of death, he added, “But this is the happiest day of my life. My work is done. I am ready to go.” He continued in the same general state of mind to the time of his departure. During the last few hours of his life he prayed several times, but I only understood one important sentence, which was nearly like this: “My Father, thou hast not granted my desire, once more to see the land of my birth, and my friends there, but do not, I entreat thee, refuse my request to see they kingdom, and my friends who are dwelling with thee.” At about four o’clock he slapped his arms about my neck, pulled my face down to his, and kissed me, then said, “Heaha ke koe?” What further remains? I replied, “Eternal life in Heaven, if you believe in Jesus. He will be your King, and angels will be your associates; there will be no groans there, no parting, no weakness, no anguish or pain, and no sin.” He replied, “That is plain; I understand it well; but I have no painful anxiety on that subject, and it was not to that that my question related. What further have I to do here?” I replied, “It is with the Lord; I know not: all your charges to me I have put down in writing, and shall faithfully deliver them according to your directions.” A little while after, he reached out his hand, took hold of mine and shook it with a smile, and then let go. At a quarter before seven, I perceived his again in prayer; but his voice soon died away, and I perceived that his end was near; and at seven, his spirit took its flight.
There is still much confusion regarding the terms sovereignty and independence in the Hawaiian community, which is the result of denationalization through Americanization. First there are two sovereignties – “internal” and “external.” By definition, sovereignty is the supreme governmental authority over the territory of a State. Where a particular State may have “internal” sovereignty over its territory, it may not have “external sovereignty” regarding its place as a State in international law. An example of this is the State of New York, which has “internal” sovereignty over its territory, but its “external” sovereignty is in the United States of America. It is the United States, and not New York, that is the independent State.
Because international law distinguishes between “internal” and “external” sovereignties, a State would remain independent and sovereign, despite its government, which exercises its internal sovereignty, having been overthrown by another State and subsequently occupied. This is why the law of occupation mandates the occupier to administer the laws of the occupied State under Article 43 of the 1907 Hague Convention, IV.
Section 358 of the United States Army Field Manual 27-10 clearly articulates this point, where “military occupation confers upon the invading force the means of exercising control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty.”
Below is an article that was originally posted December 10, 2013
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.
The Smithsonian Asian Pacific American Center (APA) invited Dr. Keanu Sai, along with over forty artists and scholars, to participate in its initiative “A Cultural Lab on Imagined Futures.” APA’s initiative is a unique way to experience a museum. As an agency of the Smithsonian Institute, APA is “a migratory museum that brings Asian Pacific American history, art and culture to you through innovative museum experiences online and throughout the United States.” The traveling museums are called “Culture Labs.”
Imagined Futures will be held on Veterans Day weekend (November 12-13, 2016) at 477 Broadway, SOHO/Chinatown, New York City, from 11 am – 9 pm.
Dr. Sai’s exhibit is the American occupation of Hawai‘i seen through the lens of the science fiction movie “The Matrix.” The science fiction thriller “depicts a dystopian future in which reality as perceived by most humans is actually a simulated reality called ‘the Matrix,’ created by sentient machines to subdue the human population, while their bodies’ heat and electrical activity are used as an energy source. Computer programmer ‘Neo’ learns this truth and is drawn into a rebellion against the machines, which involves other people who have been freed from the ‘dream world.’”
The Matrix stars Keanu Reeves, as Neo, and the only way he could see the Matrix is to be unplugged by digesting a “red pill” offered to him by Morpheus, played by Lawrence Fishburne.
Dr. Sai is a political scientist whose academic research has exposed the American occupation of the Hawaiian Islands that began with the United States’ unlawful overthrow of the Hawaiian government in 1893 followed by the military occupation during the Spanish-American War. The American occupation is a subject taught in classes at the high schools and collegiate levels in Hawai‘i and abroad. He is the author of Ua Mau Ke Ea (Sovereignty Endures), a history book used in classroom instruction.
Dr. Sai also represented the Hawaiian Kingdom as lead Agent in international arbitration proceedings—Lance Paul Larsen v. Hawaiian Kingdom, held at the Permanent Court of Arbitration. The Larsen case was also cited by the Arbitral Tribunal in its judgment in the land mark South China Sea case, which was also held at the Permanent Court of Arbitration. Dr. Sai has been likened to the character Neo.
The Matrix star Keanu Reeves is a cousin of Dr. Sai. Keanu Reeves’ father and Dr. Sai’s mother are first cousins and both were named after Dr. Sai’s maternal grandfather, Henry Keanu Reeves. Both men are Hawaiian.
Dr. Sai’s Exhibit “Hawaiʻi Reloaded – The Matrix Alive!!”
What if the place you lived in and all that you knew to be “truth” was suddenly turned upside down and inside out? What if your understanding of who you are and your place in the world was flipped in an instance? What if you were living a lie and everyone you know were all a part of the lie unknowingly? All this sounds like the Warner Bros. Hollywood blockbuster film the “Matrix.”
Hawai‘i’s political and social history since 1893 is the “Matrix” and it’s called the 50th State of the United States of America. In the nineteenth century, Hawai‘i was known as the Hawaiian Kingdom that was internationally recognized as an independent country with over ninety embassies and consulates throughout the world, which included an embassy in Washington, D.C. The “truth” is Hawai‘i was never a part of the United States, but rather has been under an illegal and prolonged occupation since the Spanish-American War in 1898.
Listen and experience the real history of Hawai‘i through the lens of the Matrix, and what is Hawai‘i’s future going forward.
What is truth, what is justice, what is reality? It’s time to get unplugged!
Today is July 31st which is a national holiday in the Hawaiian Kingdom called “Restoration day,” and it is directly linked to another holiday observed on November 28th called “Independence day.” Here is a brief history of these two celebrated holidays.
In the summer of 1842, Kamehameha III moved forward to secure the position of the Hawaiian Kingdom as a recognized independent state under international law. He sought the formal recognition of Hawaiian independence from the three naval powers of the world at the time—Great Britain, France, and the United States. To accomplish this, Kamehameha III commissioned three envoys, Timoteo Ha‘alilio, William Richards, who at the time was still an American Citizen, and Sir George Simpson, a British subject. Of all three powers, it was the British that had a legal claim over the Hawaiian Islands through cession by Kamehameha I, but for political reasons the British could not openly exert its claim over the other two naval powers. Due to the islands prime economic and strategic location in the middle of the north Pacific, the political interest of all three powers was to ensure that none would have a greater interest than the other. This caused Kamehameha III “considerable embarrassment in managing his foreign relations, and…awakened the very strong desire that his Kingdom shall be formally acknowledged by the civilized nations of the world as a sovereign and independent State.”
While the envoys were on their diplomatic mission, a British Naval ship, HBMS Carysfort, under the command of Lord Paulet, entered Honolulu harbor on February 10, 1843, making outrageous demands on the Hawaiian government. Basing his actions on complaints made to him in letters from the British Consul, Richard Charlton, who was absent from the kingdom at the time, Paulet eventually seized control of the Hawaiian government on February 25, 1843, after threatening to level Honolulu with cannon fire. Kamehameha III was forced to surrender the kingdom, but did so under written protest and pending the outcome of the mission of his diplomats in Europe. News of Paulet’s action reached Admiral Richard Thomas of the British Admiralty, and he sailed from the Chilean port of Valparaiso and arrived in the islands on July 25, 1843. After a meeting with Kamehameha III, Admiral Thomas determined that Charlton’s complaints did not warrant a British takeover and ordered the restoration of the Hawaiian government, which took place in a grand ceremony on July 31, 1843. At a thanksgiving service after the ceremony, Kamehameha III proclaimed before a large crowd, ua mau ke ea o ka ‘aina i ka pono (the life of the land is perpetuated in righteousness). The King’s statement became the national motto.
The envoys eventually succeeded in getting formal international recognition of the Hawaiian Islands “as a sovereign and independent State.” Great Britain and France formally recognized Hawaiian sovereignty on November 28, 1843 by joint proclamation at the Court of London, and the United States followed on July 6, 1844 by a letter of Secretary of State John C. Calhoun. The Hawaiian Islands became the first Polynesian nation to be recognized as an independent and sovereign State.
The ceremony that took place on July 31 occurred at a place we know today as “Thomas Square” park, which honors Admiral Thomas, and the roads that run along Thomas Square today are “Beretania,” which is Hawaiian for “Britain,” and “Victoria,” in honor of Queen Victoria who was the reigning British Monarch at the time the restoration of the government and recognition of Hawaiian independence took place.
UPDATE: Dr. Sai providing expert testimony in State of Hawai‘i v. Kinimaka that the State of Hawai‘i criminal court lacks competent jurisdiction.
Queen Lili‘uokalani was very familiar with the constitutional order of the Hawaiian Kingdom. On April 10, 1877, Lili‘uokalani was appointed by King Kalakaua as his heir-apparent and confirmed by the Nobles of the Legislative Assembly. Article 22, 1864 Constitution, provides, that the heir-apparent shall be who “the Sovereign shall appoint with the consent of the Nobles, and publicly proclaim as such during the King’s life.”
When she was Princess and heir-apparent, she served as the executive monarch, in the capacity of Regent, for ten months when King Kalakaua departed on his world tour on January 20, 1881. Article 33 provides, “It shall be lawful for the King at any time when he may be about to absent himself from the Kingdom, to appoint a Regent or Council of Regency, who shall administer the Government in His name.” She also served as Regent when Kalakaua departed for California on November 5, 1890. On January 20, 1891, Kalakaua died in San Francisco. Nine days later, Lili‘uokalani was pronounced Queen after Kalakaua’s body returned to Honolulu on January 29.
Under Hawaiian constitutional law, the office of executive monarch is both head of state and head of government, which is unlike the British monarch, who is the head of state, and the Prime Minister is the head of government. The Hawaiian executive monarch is similar to the United States presidency. As such, she would have been very familiar with the workings of government as well as its constitutional limitations. More importantly, she would have understood the limits of United States municipal laws that were unlawfully imposed in the Hawaiian Islands in 1900, and the effect it would have on the jurisdiction of American territorial courts.
Not surprisingly, this was reflected in her deed of trust dated December 2, 1909. She stated that, “Trustees shall make an annual report to the Grantor during her lifetime, and after her death to a court of competent jurisdiction.” She further stated that, “a new trustee or trustees shall be appointed by the judge of a court of competent jurisdiction.” A court of competent jurisdiction is a court that has the legal authority to do a particular act.
Her explicit use of the term “court of competent jurisdiction” is very telling, especially when other Ali‘i trusts established under the constitutional order of the Hawaiian Kingdom, namely the Lunalilo Trust in 1874 and the Pauahi Bishop Trust in 1884, which the Queen was well aware of, specifically provided that annual reports must be given to the Supreme Court of the Hawaiian Kingdom for administrative oversight, and that the Hawaiian Supreme Court was vested with the authority to appoint the trustees.
The Queen did not state the “Supreme Court of the Territory of Hawai‘i” in her deed of trust, but rather “a court of competent jurisdiction.” These provisions in her deed of trust also imply that there are courts in Hawai‘i that are without competent jurisdiction, which were the courts of the American Territory of Hawai‘i that existed at the time she drew up her deed of trust in 1909.
The courts of the Territory of Hawai‘i derived their authority under the 1900 Act to provide a government for the Territory of Hawaii. The predecessor of the Territory of Hawai‘i was the Republic of Hawai‘i, which the United States Congress in its 1993 Joint Resolution—To acknowledge the 100th anniversary of the January 17, 1893 overthrow of the Kingdom of Hawaii, and to offer an apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawaii concluded was “self-declared.” The Republic of Hawai‘i’s predecessor was the provisional government, whom President Grover Cleveland reported to the Congress on December 18, 1893, as being “neither de facto nor de jure,” but self-declared as well. Furthermore, Queen Lili‘uokalani, in her June 20, 1894 protest to the United States referred to the provisional government as a “pretended government of the Hawaiian Islands under whatever name,” that enacted and enforced “pretended ‘laws’ subversive of the first principles of free government and utterly at variance with the traditions, history, habits, and wishes of the Hawaiian people.”
As the successor to the Territory of Hawai‘i, the courts of the State of Hawai‘i derive their authority from an Act to provide for the admission of the State of Hawaii into the Union. Both the 1900 Territorial Act and the 1959 Statehood Act are municipal laws of the United States, which is defined as pertaining “solely to the citizens and inhabitants of a state, and is thus distinguished from…international law (Black’s Law, 6th ed., p. 1018).” In order for these laws to be applied over the Hawaiian Islands, international law, which are “laws governing the legal relations between nations (Black’s Law, 6th ed., p. 816),” requires the cession of Hawaiian territory to the United States by a treaty prior to the enactment of these municipal laws. Without a treaty of cession, the Hawaiian Islands remain outside of United States territory, and therefore beyond the reach of United States municipal laws.
Oppenheim, International Law, vol. I, 285 (2nd ed.), 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. 286).” There exists no treaty of cession where the United States acquired the territory of the Hawaiian Islands under international law. Instead, the United States claims to have acquired the Hawaiian Islands in 1898 by a Joint Resolution—To provide for annexing the Hawaiian Islands to the United States. Like the 1900 Territorial Act and the 1959 Statehood Act, the 1898 Joint Resolution of Annexation is a municipal law of the United States, which has no effect beyond the territorial borders of the United States.
In 1936, the United States Supreme Court, in United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318, stated, “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory.” The following year, the Supreme Court, in United States v. Belmont, 301 U.S. 324, 332 (1937), again reiterated that the United States “Constitution, laws and policies have no extraterritorial operation unless in respect of our own citizens.” These two cases merely reiterated what the Supreme Court, in The Apollon, 22 U.S. 362, 370, stated in 1824 when the Court addressed whether or not a municipal law of the United States could be applied over a French ship—The Apollon, in waters outside of U.S. territory. In that case, the Supreme Court stated, “The laws of no nation can justly extend beyond its own territories except so far as regards its own citizens.”
Although the 1898 Joint Resolution of Annexation has conclusive phraseology that makes it appear that the Hawaiian Islands were indeed annexed, the act of annexation, which is the acquisition of territory from a foreign state, could not have been accomplished because it is still a municipal law of the United States that has no extraterritorial effect. In other words, a treaty is a bilateral instrument, whereby one state cedes territory to another state, thus consummating annexation in the receiving State, but the 1898 Joint Resolution of Annexation is a unilateral act that is claiming annexation occurred without a cession evidenced by a treaty.
As a replacement for a treaty that signifies consent by the ceding State, the resolution instead provides the following phrase: “Whereas the Government of the Republic of Hawaii having, in due form, signified its consent, in the manner provided by its constitution, to cede absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies.” In The Apollon, the Supreme Court also addressed phraseology in United States municipal laws, which is quite appropriate and instructive in the Hawaiian situation. The Supreme Court stated, “however general and comprehensive the phrases used in our municipal laws may be, they must always be restricted in construction to places and persons, upon whom the legislature has authority and jurisdiction (p. 370).”
It would be ninety years later, in 1988, when the United States Department of Justice, Office of Legal Counsel, would stumble over this American dilemma in a memorandum opinion written for the Legal Advisor for the Department of State regarding legal issues raised by the proposed Presidential proclamation to extend the territorial sea from a three mile limit to twelve. After concluding that only the President and not the Congress possesses “the constitutional authority to assert either sovereignty over an extended territorial sea or jurisdiction over it under international law on behalf of the United States (p. 242),” the Office of Legal Counsel also concluded that it was “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 (p. 262).”
The opinion cited United States constitutional scholar Westel Woodbury Willoughby, The Constitutional Law of the United States, vol. 1, §239, 427 (2d ed.), who wrote in 1929, “The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was not denied, but it was denied that this might be done by a simple legislative act. …Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force—confined in its operation to the territory of the State by whose legislature enacted it.” Nine years earlier in 1910, Willoughby, The Constitutional Law of the United States, vol. 1, §154, 345, wrote, “The incorporation of one sovereign State, such as was Hawaii prior to annexation, in the territory of another, is…essentially a matter falling within the domain of international relations, and, therefore, beyond the reach of legislative acts.”
Since January 17, 1893, there have been no courts of competent jurisdiction in the Hawaiian Islands. Instead, genocide has taken place through denationalization whereby the national pattern of the United States has been unlawfully imposed in the territory of an occupied sovereign State in violation of international humanitarian law.
On April 29, 2016, Dr. Keanu Sai served as an expert witness for the defense represented by Dexter Kaiama, Esquire, during an evidentiary hearing in criminal case State of Hawai‘i v. Kinimaka. Kaiama filed a motion to dismiss the criminal complaint on the grounds that the court lacks subject matter jurisdiction because the court derives its authority from the 1959 Statehood Act, which is a municipal law enacted by the United States Congress that has no effect beyond the borders of the United States.
In response to the Court denying the motion to dismiss in light of the fact that the prosecution did not refute any of the evidence provided in the evidentiary hearing, Kaiama is preparing to file a motion for interlocutory appeal to the Intermediate Court of Appeals. Because the prosecution did not provide any rebuttable evidence against the evidence presented by the defense that provided a legal and factual basis for concluding that the Hawaiian Kingdom continues to exist as an independent and sovereign State that has been under an illegal and prolonged occupation, the trial Court should have dismissed the case. If there was to be any appeal it would be the prosecution and not the defense. Denying a person of a fair and regular trial is a war crime under Article 147, 1949 Geneva Convention, IV.
“Hawai’i Aloha” features dozens of Hawai‘i’s top artists across many genres, and over 1,000 youth from 10 Hawaiian charter schools in one epic song. Recorded live across 27 locations, this is Hawaiiʻs most widely known song, used to close important gatherings of all sizes. It is a song of unity and Aloha ‘Aina (Aloha for one’s birthplace, land and home).
About this collaboration: Mana Maoli, a Hawaiian nonprofit, teamed up with Playing for Change and 4 Miles as part of their Mana Mele Project, which features a solar mobile studio and a Music & Multimedia academy. Alongside the youth – on campus, in real world settings, and in this video, is the “Mana Mele Collective” – over 200 artists, engineers, and filmmakers who donate their time and talents to mentorships, recordings and concerts in support of these schools. We hope you enjoy watching this collaborative effort as much as we enjoyed creating it!
For lyrics and a bit of history behind “Hawaiʻi Aloha”
Under international humanitarian law, which includes the law of occupation and the protection afforded civilians who are not engaged in war, denationalization is not only a war crime but is synonymous with the term genocide. Since the occupation of the Hawaiian Kingdom began during the Spanish-American War, the United States embarked on a deliberate campaign of forced denationalization in order to conceal the occupation and militarization of a neutral State. Denationalization, in its totality, is genocide.
Prior to World War I, violations of international law did not include war crimes, or, in other words, crimes where individuals, as separate and distinct from the State or country, could be prosecuted and where found guilty be punished, which included the death penalty. The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties (Commission on Responsibility) of the Paris Peace Conference of 1919 took up the matter of war crimes after World War I (1914-1918). The Commission identified 32 war crimes, one of which was “attempts to denationalize the inhabitants of occupied territory.”
Although the 1907 Hague Convention, IV, did not specify the term “denationalization” as a war crime, the Commission on Responsibility relied on the preamble of the 1899 Hague Convention, II, which states, “Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.” This preamble has been called the Martens clause, which was based on a declaration read by the Russian delegate, Professor von Martens, at the Hague Peace Conference in 1899.
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 by resolution the list of war crimes that were drawn up by the Commission on Responsibility 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 draft a report expanding on the war crime of “denationalization” and its criminalization under international law. Committee III did not rely solely on the Martens clause as the Commission on Responsibility did in 1919, but rather used it as an aid to interpret the articles of the 1907 Hague Convention, IV. It, therefore, concluded that “attempts to denationalize the inhabitants of occupied territory” violated Article 43, where the occupying State must respect the laws of the occupied State; Article 46, where family honor and rights and individual life must be respected; and Article 56, where the property of institutions dedicated to education is protected.
In 1944, Professor Raphael Lemkin first coined the term “genocide” in his publication Axis Rule in Occupied Europe (p. 79-95). The term is a combination of the Greek word genos (race or tribe) and the Latin word cide (killing). The 1919 Commission on Responsibility did list “murders and massacres; systematic terrorism” as war crimes, but Professor Lemkin’s definition of genocide was much broader and more encompassing.
According to Professor Lemkin, “Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.”
“Genocide has two phases,” argued Professor Lemkin, “one, destruction of the national pattern of the oppressed group; the other, the imposition of the national pattern of the oppressor. This imposition, in turn, may be made upon the oppressed population which is allowed to remain, or upon the territory alone, after removal of the population and the colonization of the area by the oppressor’s own nationals. Denationalization was the word used in the past to describe the destruction of a national pattern.” Professor Lemkin believed that denationalization was inadequate and should be replaced with genocide.
The term genocide, however, was not a war crime under international humanitarian law at the time, but it appears that Committee III was in agreement with Professor Lenkin that it should be a war crime. The problem that faced Committee III was how to categorize genocide as a war crime under the Hague Convention, IV. On September 27, 1945, Committee III argued that denationalization was not a single act of “depriving the inhabitants of the occupied territory of their national characteristics,” but rather a program that attempted to achieve this result through: “interference with the methods of education; compulsory education in the language of the occupant; … the ban on the using of the national language in schools, streets and public places; the ban on the national press and on the printing and distributing of books in the language of the occupied region; the removal of national symbols and names, both personal and geographical; [and] interference with religious services as far as they have a national peculiarity.”
Committee III also argued that denationalization included other activities such as: “compulsory or automatic granting of the citizenship of the occupying Power; imposing the duty to swearing the oath of allegiance to the occupant; the introduction of the administrative and judicial system of the occupying Power, the imposition of its financial, economic and labour administration, the occupation of administrative offices by nationals of the occupying Power; compulsion to join organizations and associations of the occupying Power; colonization of the occupied territory by nationals of the occupant, exploitation and pillage of economic resources, confiscation of economic enterprises, permeation of the economic life through the occupying State or individuals of the nationality of the occupant.”
Committee III also stated that these activities by the occupying State or its nationals would also “fall under other headings of the list of war crimes.”
There were apparent similarities between Professor Lemkin’s definition of genocide and the Committee III’s definition of denationalization. Professor Lemkin argued that genocide was more than just mass murder of a particular group of people, but “the specific losses of civilization in the form of the cultural contributions which can only be made by groups of people united through national, racial or cultural characteristics (Lemkin, Genocide as a Crime under International Law, 41 AJIL (1947) 145, at 147).” Similarly, Committee III argued that denationalization “kill[s] the soul of the nation,” and was “the counterpoint to the physical act of killing the body, which was ordinary murder (Preliminary Report of the Chairman of Committee III, C.148, 28 Sept. 1945, 6/34/PAG-3/1.1.0, at 2).”
In its October 4, 1945 report “Criminality of Attempts to Denationalise the Inhabitants of Occupied Territory,” Committee III renamed denationalization to be genocide.
On December 11, 1946, the General Assembly of the United Nations adopted a resolution that declared genocide a crime under the existing international law and recommended member States to sign a convention. After two years of study, the General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide on December 9, 1948. By the Convention, genocide has been recognized as a crime even when there is no war or the occupation of a State. Genocide became an international crime along with piracy, drug trafficking, arms trafficking, human trafficking, money laundering and smuggling of cultural artifacts. During war or the occupation of a State, genocide is synonymous with the war crime of denationalization.
In the Trial of Ulrich Greifelt and Others (October 10, 1947-March 10, 1948) at Nuremberg, the United States Military Tribunal asserted Committee III’s interpretation that genocide can be committed through the war crime of denationalization. In its decision, the Tribunal concluded that, “genocide…may be perpetuated through acts representing war crimes. Among these cases are those coming within the concept of forced denationalisation (p. 42).”
The Tribunal explained, “In the list of war crimes drawn up by the 1919 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, there were included as constituting war crimes ‘attempts to denationalize the inhabitants of occupied territory.’ Attempts of this nature were recognized as a war crime in view of the German policy in territories annexed by Germany in 1914, such as in Alsace and Lorraine. At that time, as during the war of 1939-1945, inhabitants of an occupied territory were subjected to measures intended to deprive them of their national characteristics and to make the land and population affected a German province (p. 42).”
When the Hawaiian Kingdom was occupied during the Spanish-American War, the United States operated in complete disregard to the recognized principles of the law of occupation at the time. Instead of administering the laws of the Hawaiian Kingdom, being the occupied State, the United States imposed its own laws, administration, judiciary and economic life throughout the Hawaiian Islands in violation of Hawaiian independence and sovereignty. According to Professor Limken, this action taken by the United States would be considered as “the imposition of the national pattern of the oppressor,” which is the second phase of genocide after the national pattern of the occupied State had been destroyed under the first phase.
In other words, the actions taken by the United States was precisely what the Axis Powers did in occupied territories during World War I and II, which, according to Committee III, included “interference with the methods of education; compulsory education in the language of the occupant; … the ban on the using of the national language in schools, streets and public places; the ban on the national press and on the printing and distributing of books in the language of the occupied region; the removal of national symbols and names, both personal and geographical; [and] interference with religious services as far as they have a national peculiarity. [As well as] compulsory or automatic granting of the citizenship of the occupying Power; imposing the duty to swearing the oath of allegiance to the occupant; the introduction of the administrative and judicial system of the occupying Power, the imposition of its financial, economic and labour administration, the occupation of administrative offices by nationals of the occupying Power; compulsion to join organizations and associations of the occupying Power; colonization of the occupied territory by nationals of the occupant, exploitation and pillage of economic resources, confiscation of economic enterprises, permeation of the economic life through the occupying State or individuals of the nationality of the occupant.”
Under Hawaiian law, native (aboriginal ) Hawaiians had universal health care at no charge through the Queen’s Hospital, which received funding from the Hawaiian Kingdom legislature. Early into the occupation, however, American authorities stopped the funding in 1904, because they asserted that the collection of taxes used to benefit a particular ethnic group violated American law. In a legal opinion by the Territorial Government’s Deputy Attorney General E.C. Peters on January 7, 1904, to the President of the Board of Health, Peters stated, “I am consequently of the opinion that the appropriation of the sum of $30,000.00 for the Queen’s Hospital is not within the legitimate scope of legislative authority.”
Since 1904, aboriginal Hawaiians had to pay for their healthcare from an institution that was established specifically for them at no charge. According to the International Criminal Court’s (ICC) Elements of Crimes, one of the elements of the international crime of “Genocide by deliberately inflicting condition of life calculated to bring about physical destruction,” is that the “conditions of life were calculated to bring about the physical destruction of that group, in whole or in part.” The ICC recognizes the term “conditions of life” includes, “but is not necessarily restricted to, deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes.”
As a result of the “deliberate deprivation of…medical services,” many aboriginal Hawaiians could not afford medical care in their own country, which has led to the following dire health statistics today.
- 13.4% of aboriginal Hawaiians who were surveyed in 2013 reported that they do not have any kind of health care coverage, which is the highest rate across all ethnic groups surveyed (Nguyen & Salvail, Hawaii Behavioral Risk Factor Surveillance System, State of Hawai‘i Department of Health).
- Aboriginal Hawaiians are dying at younger ages amongst all other ethnicities, with rates 40% higher when compared to Caucasians (Panapasa, Mau, Williams & McNally, Mortality patters of Native Hawaiians across their lifespan: 1990-2000, 100(11) American Journal of Public Health 2304-10 (2010); and Ka‘opua, Braun, Browne, Mokuau & Park, Why are Native Hawaiians underrepresented in Hawai‘i’s older adult population? Exploring social and behavioral factors of longevity, Journal of Aging Research (2011).
- Aboriginal Hawaiians survival rate for all cancers is 47% when compared to 57% Caucasians, and 55% all other races combined (National Center for Health Statistics, Health, United States, 2007: With Chartbook on Trends in the Health of Americans, S. Department of Health and Human Services Centers for Disease Control and Prevention).
- Aboriginal Hawaiians have the highest rate of diabetes in the Hawaiian Islands (Crabbe, Eshima, Fox, & Chan (2011), Native Hawaiian Health Fact Sheet 2011, Office of Hawaiian Affairs, Demography Section, Research Division).
- 5% of aboriginal Hawaiians are overweight, which is higher than any other ethnic group in the Hawaiian Islands (Nguyen & Salvail, 2013).
- 7% of aboriginal Hawaiians have high blood pressure, being second only to Japanese at 39.7% (Nguyen & Salvail, 2013).
- Aboriginal Hawaiians are more likely to have chronic diseases than non-aboriginal Hawaiians (Nguyen & Salvail, 2013).
- 48% of the deaths of aboriginal Hawaiian children occur during the perinatal period (Crabbe et al., 2011).
- 7% of aboriginal Hawaiian adults report being diagnosed with a depressive disorder (Nguyen & Salvail, 2013).
- Aboriginal Hawaiians continue to abuse alcohol, nicotine, and other drugs at a higher rate than other ethnic groups in Hawai‘i (Pearson (2004), Ka Leo O Nā Keiki: The 2003 Hawaii student alcohol, tobacco, and other drug use study (1987-2003), Hawaii adolescent prevention and treatment needs assessment: Executive summary, 2003, State of Hawai‘i Department of Health, Alcohol and Drug Abuse Division).
Professor Lemkin would view these statistics as connoting “the destruction of the biological structure” of aboriginal Hawaiians, which is the outcome of the second phase of genocide where the imposition of the national pattern of the oppressor has been established. In addition to these statistics are added the deaths of aboriginal Hawaiians who died in the wars of the United States after forced conscription into the Armed Forces and their compulsion to swear allegiance. These wars included World War I, World War II, the Korean War and the Vietnam War.