Dr. Lynette Cruz, host of “Issues that Matter,” interviews Dr. Keanu Sai on recent trip to Italy. Dr. Sai was invited to participate in an academic conference in Ravenna, Italy, as well as guest lectures as the University of Siena Law School and at the University of Torino.
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!
This article originally appeared on September 26, 2016 at Ke Kaupu Hehiale. The author has granted permission to reprint the article for this blog.
“My grandmother knew and spoke to me about the events of 1893. She lived to be 100… fortunately, she lived often with us and so what I know is…my family said no to the Committee of Safety and to the provisional government…we said no in 1897 to annexation and signed the Hui Aloha ‘Āina petition here on Maui and in Honolulu…Years later I asked my mother, how did she vote in 1959 to the question about Hawaii becoming a state, and she said no. Now we know our history, we know what happened here in 1893, and we know that we are not an Indian tribe and not to be treated as such.”
(Waters Omar Fin, Jr., July 7, 2014 in Lahaina, Maui)
“Now we know that there was no treaty of annexation and we also know now that the joint resolution as an act of Congress has no power to acquire any island. An act of a legislature or an act of parliament has no power outside of its country to acquire dominion of another. If that were so, Hawaii could acquire the United States and probably should have…I want to say no, no, no, no to federal recognition, no to occupation, and no to the United States. Thank you.”
(Williamson Chang, June 23, 2014 in Honolulu, O‘ahu)
A few days ago, the US Department of Interior (DOI) released its final rulewith regard to establishing a process to federally recognize a Native Hawaiian government, subject to the plenary power of the US Congress. What happens next will hopefully involve vigorous debate in the Hawaiian community over questions of government and of the relationship we believe Hawaiʻi should have to the US. Most importantly we should talk about how our collective next moves impact our lands.
As we prepare for and engage in those discussions, we should return to the outpouring of sentiments and analyses that came out during the 2014 public meetings held by the DOI in Hawaiʻi. These were the only face-to-face public hearings EVER to be held across the archipelago on the topic of US federal recognition.
E kuʻu mau hoa ʻŌiwi, no matter where you stand on the issue of federal recognition, please take the time to really listen to the voices that poured forth at these meetings. I have too often heard these testimonies dismissed by those who support federal recognition, saying they were a skewed sample of our people. But the fact of the matter is that Kānaka turned out in unprecedented numbers to express their manaʻo about our political present and futures. Our great leaders of the past, such as Queen Liliʻuokalani, showed us how important it is to truly listen to and consider the voices of the people. These testimonies are a huge resource and they should be taken seriously. If you are not moved by them, you are not listening closely enough.
The Context and The Testimonies
Remember that the DOI released its Advanced Notice of Proposed Rule Making, asking for public comment on its five threshold and nineteen additional questions in 2014 only eight days prior the first meeting in Honolulu, giving people little time to prepare. Remember that at each of the fifteen meetings on six islands, Kānaka voices resounded like pouring rain on corrugated metal rooftops. Remember that the vast majority of them asserted Hawaiian independence and refused US authority. Remember that the meetings were made accessible through grassroots efforts to livestream them. (Most of these meetings can still be viewed on YouTube.) Remember how many of us remained glued to our screens, watching person after person after person refuse cheap gifts of recognition. Remember how many Kānaka expressed deep distrust for the US. Remember how some said they wouldn’t answer the DOI’s questions until Secretary of State Kerry answered Kamanaʻopono’s. Remember how the DOI left and life went on. Remember also how, in 2015, when the DOI released its proposed rule, they essentially ignored those voices and only counted the written testimonies, most of which were identical postcards.
Several months ago, I printed out the transcripts from all of those public meetings. Over nine hundred pages, they completely filled a large box that took two people to lift. The transcripts would have been even longer if the contracted professional transcribers understood the Hawaiian language. Instead, most of the transcripts just say “[speaking Hawaiian]” when a speaker chose to use our mother tongue. This happened fourteen times in the Keaukaha meeting alone, leaving out valuable manaʻo from the official record and showing that the DOI did not deem our language valuable enough to find translators.
I ran each community’s transcripts through a text-mining program that analyzes, among other things, the frequency of words used. What stood out to me was how often the words “know” and “no” were used. After words like “Hawaiian,” “people,” and “aloha,” no and know were usually among the top five and always among the top ten most frequently-used words at every meeting on every island. So this got me thinking: What knowledge were people asserting? How were know-ing and no-ing linked, if at all?
The time that I have spent reading these hundreds of pages of words of our Kānaka have shown me that there is a direct link between what people know and why they say “no” to the DOI and to federal recognition. The recurring phrase, “now we know,” comes directly from testimonies offered at these meetings and signals the impacts of massive educational efforts to uncover the history of Hawaiian independence over the past few decades. Our self-educational initiatives shifted the political grounds on which Kanaka stand. Forefronting broad-based popular education, Hawaiian social movements have greatly contributed to Kanaka Maoli assertions of cultural, genealogical and political identity. These “knowings” form the basis of a powerful refusal of settler state frameworks of recognition. Often speakers were asserting knowledge through “I know” or “we know” statements. Sometimes they were speaking about what is commonly known by the people and government of the US, but not acted upon. Other times they were telling the DOI panelists what they should know.
Here are eight overlapping categories of knowing—eight reasons—that fuel Kānaka refusal of US authority and of federal recognition. For each reason, I have selected a couple of salient examples from the testimonies to illustrate these themes, though there are hundreds more waiting for those who take the time to read them.
Ka Lāhui (collective identity)
One of the most common forms of knowing that Kānaka asserted was knowledge of “who we are” as Hawaiians, such as in this quote:
“We don’t need recognition. We know who we are in the hearts and minds of our people.”
(Remi Abellira, June 23, 2014 in Honolulu, Oʻahu)
These assertions of peoplehood were frequently expressed through connection to land and to an independent polity.
“We are Hawaiian subjects, as our kūpuna before us, who signed the Kūʻē Petitions of 1897. They laid a firm foundation for us. And all we have to do is remember and stand together with courage and let the United States, the State of Hawaiʻi, and the Office of Hawaiian Affairs know that we know who we are.”
(Leilani Lindsey Kaʻapuni, July 2, 2014 in Hilo, Hawaiʻi)
As this second quote illustrates, the affirmative statements were often paired with related statements in the negative (ex. “we are not Americans,” or “we are not an Indian tribe”) and/or with a rejection of recognition, based on the sentiment that because “we know who we are,” we don’t need an external entity such as the US to tell us.
Ka Moʻolelo (historical knowledge)
This theme represents the common rhetorical move that many testifiers made in calling upon facts of history.
“Congress can never create a congressional act to annex a country without a treaty. And they know it. Okay. They know it.”
(Kekane Pa, June 30, 2014 in Waimea, Kauai)
Such facts were sometime raised to dispel myths of history, such as the notion that the US legally annexed the Hawaiian Kingdom, exemplified by the quote above. Both Kekane Pa’s quote above and Josh Noga’s below also show the ways people emphasized that these facts are now well known but remain unacted upon by the US.
“There’s been a wrong, and you guys know the wrong. Everybody knows the wrong. They apologized in 1993, [with] the Apology Resolution. You violated the sovereignty of the Hawaiian Kingdom. But more importantly, you continue to deprive Kanaka Maoli of our human rights.”
(Joshua Ioane Noga, June 25, 2014 in Heʻeia, Oʻahu)
Assertions about historical knowledge were not just about the past but were marshaled to show how these histories ongoing relevance in the present and provide a basis for contemporary Kanaka resistance to US-determined political futures.
“We know the truth of our lahui’s history. It is this truth that compelled our kupuna to resist the United States’ occupation in these islands over a century ago, and it is this truth that has empowered many of us to continue on in this conscious struggle for the pono of our ʻāina and our lāhui today.”
(Noʻeau Peralto, July 2, 2014 in Hilo, Hawaiʻi)
Ka Moʻokūʻauhau (genealogical knowledge)
Ka Moʻokūʻauhau represents genealogical knowledge, which is more intimate than historical knowledge. Speakers referenced not only facts that they learned in schools or books, but spoke specifically about understandings that were directly transmitted within their families.
“I was seven years old when my tutu-man was with me, and all the ruckus was going about statehood, and as a seven-year-old, I said,
ʻPapa, what does that do for us?’
He said, ‘Nothing.’
I said, ‘Did you vote, Papa?’
‘No.’ He says, ‘They do not represent you.’ Know who you are. And I know who I am.”
(Sandra Phillips Pa, June 25, 2014 in Heʻeia, Oʻahu)
In many instances, testifiers spoke about elders who inspire their current political positions. Often these kinds of statements were about a familial connection to a legacy of kūʻē (opposition and resistance)
“I am here preserved by my ancestors that signed that Kūʻē Petition. My grandfather was 11 years old. My great-grandfather, the whole ʻohana was there in 1897 in that Kūʻē Petition. That made me a Hawaiian nationalist. I know who I am, and I am very proud … ‘aʻole to all the five questions for the record.”
(Renee Kanoi Bonnie Medeiros, June 30, 2014 in Waimea, Kauaʻi)
Ka Hoa Paio (opponents)
A corresponding counterpoint to Kanaka assertions of knowing “who we are,” the testimonies also include numerous examples of people making statements to the effect of: we know who you are as representatives of the US as well. The “you” in these comments was not typically aimed directly at the individuals sitting on the DOI panel, but rather the larger “you” of the United States and its role in oppressing Hawaiian people and nationhood.
“I don’t know you guys personally. But I will say that I no trust what is going on. Not because I do not trust you guys as individuals, but we can only trust the fruit that comes from the tree, you know. And the fruits from the tree so far will show bad fruits, was bad for us. And the taste in our mouth is bitter and we’re tired of it.”
(Hawaiʻiloa Mowat, June 28, 2014 in Kaunakakai, Molokaʻi)
Assertions of knowing the US were frequently tied to an expressed sense of distrust that grows out of the experiential knowledge of the US-Hawaiʻi relationship.
“Don’t you say you want to help us, because we know that you’re the very ones who continue to subject us to this persecution. And we’ll never accept the roll commission or anything that forces the issue of race upon us, and have us begging for freedom from the very country, the United States that continues to oppress us.”
(Trace Kaimana Kalei, July 2, 2014 in Hilo, Hawaiʻi)
Ke Kuleana (authority)
The theme of kuleana overlaps with the previous themes, in terms of building on knowledge of collective self, history, and genealogy. But the statements within this theme went further to explicitly address who does and does not have authority or jurisdiction in Hawaiʻi.
“If you knew just a little bit about our nation’s history and your nation’s history and relationship with our nation, then you would see, like so many people have already been saying, that you have no jurisdiction here. And so I don’t really feel a need to answer your questions in the first place, but because I know how your nation does things, I will say no, no, no, no, no…you have to go back and talk to the people who have the power in your nation. Or better yet, you know, if you want to give up your citizenship and come and join us, I’m sure we can talk story about that.”
(Shavonn Matsuda, July 5, 2014 in Hana, Maui)
Both Shavonn Matsuda’s quote above and Kale Gumapac’s below illustrate that these discussions of jurisdiction were also connected, at times, to instructions about how the US government or specific individuals could enter Hawaiʻi in a more respectful way to actually demonstrate a genuine desire for a nation-to-nation, government-to-government relationships.
“The constitution of the Hawaiian Kingdom continues to exist. You need to learn that constitution so that you can know when to ask permission to come into the Kingdom of Hawai`i. You did not ask that permission and I don’t know who invited you in, but they did the wrong thing.”
(Kale Gumapac, July 2, 2014 in Hilo, Hawaiʻi)
Ka Hilinaʻi (self-confidence, trust, belief)
While related to the theme of Ka Lāhui (collective identity), statements within this theme explicitly expressed confidence in Hawaiian capacity to govern ourselves in the present.
“We are wiser, we are smarter, we know what to do and we’ll govern our nation.”
(Kaipuaʻala Crabbe, July 2, 2014 in Hilo, Hawaiʻi)
In the example from ʻIʻinimaikalani Kahakalau below, this self-confidence was directly tied to self-knowledge that comes from cultural practice.
“I’m a student at U.H. Hilo, I’m a Chancellor’s Scholar, I’m a cultural practitioner, and I am saying no to all five of your questions. And the simple reason is because we can do it ourselves, ’cause we know ourselves the best. We can answer anything we need.”
(ʻIʻinimaikalani Kahakalau, July 2, 2014 in Hilo, Hawaiʻi)
Thus, such rejections of US authority were centered more on a self-assuredness of Hawaiian capacity for self-governance. We are the ones who know best how to govern ourselves. And this assertion of self-confidence was often accompanied by a critique of US ineptitude or violence in its treatment of Hawaiʻi.
Ke Kūʻike (recognizing one another by sight)
Most testifiers came to speak directly to the DOI panel, but in a handful of instances speakers seemed to be moved by the experience of seeing so many of their fellow Kānaka coming forward and thus began speaking to each other.
“It is wonderful to know that one day when I put my kino in the ground, that I know that in the future, the faces of our young people that’s here tonight, I can rest in peace, that you’ve come tonight to bring your voices, that you will stand for the journey that our people have sat for you. Your life is in — and the life of our people and our nation is in your hands. We trust you, we beg you to rise to the moment now and forever.”
(Dawn Wasson, June 25, 2014 in Heʻeia, Oʻahu)
This theme of ke kūiʻke, then, represents the knowing that resulted in the very moment of seeing, with their own eyes, other Hawaiians present and expressing themselves. In other words, it is a theme regarding the knowledge of collective self-recognition that grows out of direct sight and the feelings that arise when we come together as a lāhui. In the instance below, the speaker spent most of his three minutes explaining to the panel how he has seen “over 46 years of decimation of our Kanaka lifestyle. Thanks to the capitalism and greed that comes along with Americana.” But as time ticked down and the facilitator prepared to cut him off, he turned to speak to his fellow Kānaka,
“You’re looking into my eyes and my heart. Okay. So I’ve got 30 seconds…We need to get together as Kanaka Maoli. We need to get together and become strong. We can do this. We don’t need anybody else. It’s a five no.”
(Abraham Kaiwaiwa Makanui, July 1, 2016 in Kapaʻa, Kauaʻi)
Ka Hoʻomau (continuing to future generations)
Testifiers at the 2014 DOI meetings were aware not only of the people who were physically present in the room. Many were also conscious of the ways in which their words might be preserved for future generations. Thus, expressions within this theme spoke directly to what speakers want for future generations to know
“I am here to answer the five questions that are posed, and my answer to all five questions is no. I am opposed to the proposed rule change, I am opposed to federal recognition. I am opposed to the illegal U.S. occupation of Hawaiʻi. I wanted to come here tonight so that my opposition would be added to the historical record of these meetings, so that my keiki and my descendants will always be clear about how I felt about this process and your government, which was very much in line with the majority, the vast majority of testimony you’ve heard over the past week and a half. So they can look back, in much the same way you look back to the Kūʻē Petitions of our kūpuna who opposed annexation of Hawaiʻi to the United States.”
(Kuʻulani Muise, July 2, 2014 in Hilo, Hawaiʻi)
In Kuʻulani Muise’s and Alona Naomi Quartero’s quotes, above and below, both women connected past and future generations, situating themselves within a continuum of resistance.
“I will definitely let my children, grandchildren, and great-grandchildren know that an injustice was done. So I stand here for them, knowing that I know that my tūtū signed the petition against annexation. I know our Queen did not want this. So I stand here, knowing all of this, to let my grandchildren know that I am here today.”
(Alona Naomi Quartero, July 2, 2014 in Hilo, Hawaiʻi)
These eight forms of knowing sustained Hawaiian refusal of the limited forms of recognition or, more precisely, what Glen Coulthard has rightly pointed out are settler state misrecognitions, at the 2014 DOI consultation sessions on its proposed rule for establishing a federal recognition process for Native Hawaiians.
A Few Closing Thoughts
If the DOI invested the time and energy to have face-to-face public meetings in fifteen Hawaiian communities on six islands, why did they ignore the overwhelming majority of the oral testimonies as they developed the final rule? For instance, in the final rule that was released a few days ago, these voices are quickly dismissed:
“Many commenters objected to any rulemaking by the Department, indicating their belief that Hawaii was illegally annexed by the United States, that Hawaii is currently being ʻoccupied’ by the United States, and that the Kingdom of Hawaii continues to exist as a sovereign nation-state independent of the United States… Response: The Department made no changes to the rule in response to these comments, which address the validity of the relationship between the United States and the State of Hawaii. To the extent commenters claim that Hawaii is not a State within United States, the Department rejects that claim. Congress admitted Hawaii to the Union as the 50th State. (p.60)
Perhaps DeMont Connor’s testimony provides a response to the question of why the US government would essentially ignore the overwhelming majority of testimonies at the only public hearings on federal recognition to ever be held on multiple islands throughout Hawaiʻi.
“This thing that you guys doing right now, it’s like I went steal your car, but I come to you and I tell you I no can give you back your car, but I gonna give you this brand-new bicycle, yeah, from Schwinn, the best top of the line, and I still jump in your car and I drive away. Come on, brah, we don’t need this. I apologize for you guys come all the way over here for this. I want to say Esther Kiaʻaina, aloha to you, sister. You know, we recognize you. Unfortunately you stay over there with them over there. Come home, sister, come home.”
(DeMont Conner, June 23, 2014 in Honolulu, O‘ahu)
The thief does not want to return the stolen goods. The DOI final rule illustrates this clearly when it “further clarifies that reestablishment of the formal government-to-government relationship does not affect the title, jurisdiction, or status of Federal lands and property in Hawaii” (p. 50). The language throughout the rule is also clear in asserting US plenary (meaning supreme) power over Indian affairs, under which it considers Native Hawaiians. Kānaka who oppose the rule are not attempting to foreclose options for our people. We refuse to assent to the US assertion of supreme authority over our lāhui and ʻāina.
Especially when we know that the US government uses recognition frameworks as a way to legitimize its seizure of Native lands, and when we know it has no intention of handing title of the lands it currently controls over to Hawaiians, we Kānaka really need to come together and have some hard conversations. For me, the 2014 oral testimonies to the DOI are evidence that the multi-generational work of nation-building makes the most lasting gains when Hawaiian people have taken a bottom-up approach to nation-building, focusing on broad-based education rather than on external recognition. The sentiments of distrust and refusal evident in the testimonies reject not only US federal and state recognition, but also top-down, non-inclusive, non-transparent, elitist politics that have not been patient in or committed to building broad-based conversation and consensus. Let’s change that together and recommit to meeting each other face-to-face and taking as long as we need to work this shit out together.
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.
My name is Dr. David Keanu Sai and from 1999-2001, I served as Agent for the Hawaiian Kingdom in international arbitration proceedings under the auspices of the Permanent Court of Arbitration, The Hague, Netherlands. The case was Lance Paul Larsen v. Hawaiian Kingdom (Larsen case). I was responsible for the drafting of the pleadings as well as communication with the Permanent Court of Arbitration’s (PCA) International Bureau-Secretariat, headed by a Secretary General, regarding the case. So I am very well acquainted with the case as well as what was going on behind the formalities of the case and the confines of the published Award in the International Law Reports, vol. 119, p. 566.
I am also a lecturer at the University of Hawai‘i with a M.A. and a Ph.D. in political science specializing in international relations and public law. My doctoral research and published law articles centers on the continuity of the Hawaiian Kingdom as an independent State under a prolonged occupation by the United States of America (United States) since the Spanish-American War.
After reviewing the two Awards by the Tribunal in the South China Sea case, I perused the Philippines’ Memorial and transcripts of the proceedings to find any reference to the Larsen case that was cited in Tribunal’s Award on Jurisdiction and Admissibility (paragraph 181) as well as the Award on the Merits (paragraph 157, footnote 98). In the Memorial, which is called a pleading in international proceedings, the Philippines brought up the Larsen case in paragraphs 5.125 and 5.126. It was also mentioned by Professor Philippe Sands, QC, in his expert testimony to the Tribunal during a hearing on jurisdiction on July 8, 2015, and found on page 123 of the transcripts. On the Larsen case, the Philippine Memorial stated:
5.125 The Monetary Gold principle has also been followed once in arbitral proceedings. An arbitral tribunal applied it propio motu in Larsen v. the Hawaiian Kingdom. In that case, a resident of Hawaii sought redress from “the Hawaiian Kingdom” for its failure to protect him from the United States and the State of Hawaii. The parties, who had agreed to submit their dispute to arbitration by the PCA, hoped that the tribunal would address the question of the international legal status of Hawaii. Both parties initially argued that the Monetary Gold principle should be confined to ICJ proceedings. The tribunal rejected that argument, stating that international arbitral tribunals “operate[ ]within the general confines of public international law and, like the International Court, cannot exercise jurisdiction over a State which is not a party to its proceedings”.
5.126 The tribunal ultimately decided that it was precluded from addressing the merits because the United States, which was absent, was an indispensable party. Relying on Monetary Gold, the tribunal explained that the legal interests of the United States would form “the very subject-matter” of a decision on the merits because it could not rule on the lawfulness of the conduct of the respondent, the Kingdom of Hawaii, without necessarily evaluating the lawfulness of the conduct of the United States. It emphasized that “[t]he principle of consent in international law would be violated if this Tribunal were to make a decision at the core of which was a determination of the legality or illegality of the conduct of a non-party”.
There is much said in these two paragraphs that may escape the layman who may not be familiar with Hawai‘i’s legal history and its place in international law. By the Philippines own admission it recognized the existence of the Hawaiian Kingdom as a party to the arbitration, and without the participation of the United States, as an indispensable third party, the Philippines stated the Larsen Tribunal “could not rule on the lawfulness of the conduct of the respondent, the Kingdom of Hawaii.”
Here at the University of Hawai‘i William S. Richardson School of Law, a few faculty members, namely Dr. Diane Desierto, Dr. David Cohen, and Carol Peterson, have gone so far as to call the Larsen case mere puffery. But can the Larsen case be an exaggeration of the Hawaiian Kingdom’s continued existence under international law and the role of the principle of indispensable third parties when it comes to the United States, as claimed by these faculty members who admitted, at a closed forum, they don’t know the legal history of Hawai‘i?
Obviously, the Philippine Government did not think so, and nor did the Tribunal in the South China Sea arbitration. As a landmark case in international arbitration, the South China Sea arbitration has drawn attention to the Larsen case again, which gives me an opportunity to set the record straight in light of the detractors, but also for those who are just curious.
In the Larsen case, the Hawaiian Kingdom, which I served as Agent along with others on my legal team, was a “Defendant,” which in international proceedings is also called a “Respondent.” This means that the Hawaiian Kingdom was defending itself from the allegations made by Larsen, as the “Plaintiff,” which is also called a “Claimant,” that the Council of Regency was allowing the unlawful imposition of American municipal laws in the territory of the Hawaiian Kingdom, which led to his unfair trial and subsequent incarceration.
By going to Larsen v. Hawaiian Kingdom at the PCA’s case repository, it identifies me as the Agent for the Hawaiian Kingdom, identifies the Hawaiian Kingdom as a “State,” and under the heading of “case description,” it provides the dispute as follows:
“Dispute between Lance Paul Larsen (Claimant) and The Hawaiian Kingdom (Respondent) whereby
- a) Lance Paul Larsen, a Hawaiian subject, alleges 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, and in violation of the principles of international law laid [down] in the Vienna Convention on the Law of Treaties, 1969, by allowing the unlawful imposition of American municipal laws over claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.
- b) Lance Paul Larsen, a Hawaiian subject, alleges that the Government of the Hawaiian Kingdom is also in continual violation of the principles of international comity by allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.”
The Philippines’ Memorial also cites an article by Bederman and Hilbert on the Larsen case that was originally published in the American Journal of International (vol. 95, p. 928), and republished the article in the Hawaiian Journal of Law and Politics (vol. 1, p. 82) that the Philippines cited. According to Bederman and Hilbert, who succinctly stated the dispute, “At the center of the PCA proceeding was…that the Hawaiian Kingdom continues to exist and that the Hawaiian Council of Regency (representing the Hawaiian Kingdom) is legally responsible under international law for the protection of Hawaiian subjects, including the claimant. In other words, the Hawaiian Kingdom was legally obligated to protect Larsen from the United States’ ‘unlawful imposition [over him] of [its] municipal laws’ through its political subdivision, the State of Hawaii. As a result of this responsibility, Larsen submitted, the Hawaiian Council of Regency should be liable for any international law violations that the United States committed against him.”
Clearly, the Larsen case was not about whether the Hawaiian Kingdom continues to exist, but was based on the presumption that it does exist, and, as such, a dispute arose between a Hawaiian national and the Hawaiian Government that stemmed from an illegal and prolonged occupation by the United States. My responsibility, as the Agent, was to defend the Hawaiian Government from Larsen’s allegation of allowing the imposition of American municipal laws in the Hawaiian Islands.
I was also keenly aware that before the PCA could establish the Arbitral Tribunal to preside over the dispute between Larsen and the Hawaiian Kingdom, it had to first confirm that the Hawaiian Kingdom as a “State” continues to exist in order for the PCA to exercise its “institutional jurisdiction” (United Nations Dispute Settlement, Permanent Court of Arbitration, p. 15) so that it could facilitate the creation of an ad hoc tribunal. By extension, the PCA also had to confirm that Larsen’s nationality was a Hawaiian subject, and the Council of Regency was the Hawaiian Government.
As an intergovernmental organization established under the 1899 Hague Convention, I, and the 1907 Hague Convention, I, the PCA facilitates the creation of ad hoc arbitral tribunals to settle disputes between two or more States, i.e., the Philippines v. China, or between a State and a private entity, i.e., Romak, S.A. v. Uzbekistan. Romak, S.A. is a Swiss company that specializes in the sale of grain and cereal products. In both cases, the States have to exist in fact and not in theory in order for the PCA to have institutional jurisdiction. Disputes must be “international” and not “municipal,” which are disputes that go before national courts of States and not international courts or tribunals.
Since the arbitration agreement between Larsen and the Hawaiian Government was submitted to the PCA on November 8, 1999, the PCA was doing their due diligence as to whether the Hawaiian Kingdom currently exists as a State under international law. If the Hawaiian Kingdom does not exist then this fact would negate the existence of the nationality of Larsen as a Hawaiian subject and the existence of the Council of Regency as the Hawaiian government, and, therefore, the dispute.
After its due diligence, however, the PCA could not deny that the Hawaiian Kingdom did exist as an independent State, and, along with other treaties, the Hawaiian Kingdom had a treaty with the Netherlands, which houses the PCA itself. However, what faced the PCA is that it could not find any evidence that the Hawaiian Kingdom had ceased to exist under international law. Only by way of a “treaty of cession,” whereby the Hawaiian Kingdom agreed to merge itself into the territory of the United States, could the Hawaiian Kingdom have been extinguished under international law.
There was never a treaty, except for American municipal laws, enacted by the United States Congress, that treat Hawai‘i as if it were annexed. Municipal laws are not international laws, as between States, but are laws that are limited in scope and authority to the territory of the State that enacted them. In other words, an American municipal law could no more annex the Hawaiian Kingdom, than it could annex the Netherlands.
My legal team and Larsen’s attorney knew this and operated on the “presumption” that the Hawaiian Kingdom continues to exist until evidence shows otherwise. This was the same conclusion that the PCA came to, which prompted a telephone conversation I had with the PCA’s Secretary General, Tjaco T. van den Hout, in February 2000. In that telephone conversation, he recommended that the Hawaiian Government along with Larsen’s Counsel, Ms. Ninia Parks, provide a formal invitation to the United States Government to join in the arbitration. I recall his specific words to me on this matter. He said that in order to maintain the integrity of this case, he recommended that the Hawaiian Government, with the consent of Larsen’s legal representative, provide a formal invitation to the United States to join in the current arbitration. He then requested that I provide evidence that the invitation was made so that it can be made a part of the record for the case.
This invitation would elicit one of the three possible responses: first, the United States accepts the invitation, which recognizes the existence of the Hawaiian Kingdom and its government and will have to answer to its unlawful imposition of American municipal laws that led to Larsen’s unfair trial and incarceration; second, the United States denies the existence of the Hawaiian Kingdom because Hawai‘i is the so-called 50th State of the Federal Union and demands that the PCA cease and desist in entertaining the dispute; or, third, the United States denies the invitation to join in the arbitration but does not deny the existence of the Hawaiian Kingdom and the dispute between a Hawaiian national and the government representing the Hawaiian Kingdom.
On March 3, 2000, a conference call meeting was held with John Crook from the United States State Department in Washington, D.C., together with myself representing the Hawaiian Government and Ms. Parks representing Larsen. After the meeting, I drafted a letter to Crook that covered what was discussed in the meeting regarding the invitation and a carbon copy was sent to Secretary General van den Hout, as he requested, so that it could be placed on the record that an invitation was made. A few days later the United States Embassy in The Hague notified the PCA that they denied the invitation to join in the arbitration, but requested permission from the Hawaiian Government and Ms. Parks, on behalf of Larsen, to have access to all pleadings and transcripts of the case. Both Ms. Parks and I were individually contacted by telephone from the PCA’s Deputy Secretary General, Phyllis Hamilton, of the request made by the US Embassy, which we both consented to. It was also agreed that the records of the proceedings would be open to the public.
The United States took the third option and did not deny the existence of the Hawaiian Kingdom. Thereafter, the PCA began to form the Arbitral Tribunal the following month in April of 2000. Memorials were filed with the Tribunal by Larsen on May 22, 2000, and the Hawaiian Government on May 25, 2000. The Hawaiian Government then filed its Counter-Memorial on June 22, 2000, and Larsen its Counter-Memorial on June 23, 2000.
After the pleadings were submitted, the Tribunal issued Procedural Order no. 3 on July 17, 2000. In the Procedural Order, the Tribunal articulated the dispute from the pleadings in the following statement.
The Tribunal further stated in the Procedural Order that it “is concerned whether the first issue does in fact raise a dispute between the parties, or, rather, a dispute between each of the parties and the United States over the treatment of the plaintiff by the United States. If it is the latter, that would appear to be a dispute which the Tribunal cannot determine, inter alia because the United States is not a party to the agreement to arbitrate.” The Tribunal, therefore, stated that it could not get to the merits of the case regarding “redress against the Respondent Government” as the second issue, until it address the first issue that Larsen’s “rights as a Hawaiian subject are being violated…by the United States of America.” This first issue that the Tribunal was asked to determine is what caused the Tribunal to raise the principle of an “indispensable third party” that stemmed from the Monetary Gold case. In other words, could the Tribunal proceed to rule on the lawfulness of the conduct of the Hawaiian Government when its judgment would imply an evaluation of the lawfulness of the conduct of the United States, which is not a party to the case.
The Tribunal scheduled oral hearings to be held at the PCA on December 7, 8 and 11, 2000.
A day before the oral hearings were to begin on December 7, the three arbitrators met with myself and legal team and Ms. Parks in the PCA to go over the schedule and what we can expect. What they also provided to us were booklets of the decisions by the International Court of Justice, namely the Monetary Gold Removed from Rome in 1943 (Italy v. the United Kingdom, France and the United States), Case Concerning Certain Phosphate Land in Nauru (Nauru v. Australia), and Case Concerning East Timor (Portugal v. Australia).
All three cases centered on the indispensable third party principle and that we should be prepared to respond as to how this case can proceed without the participation of the United States. In the Monetary Gold case it was on the non-participation of Albania; the Nauru Case was the non-participation of New Zealand and the United Kingdom; and the East Timor case was the non-participation of Indonesia. Of the three cases, only the Nauru case could proceed because the ICJ concluded that New Zealand and the United Kingdom were not indispensable third parties.
After two days of hearings, it was evident that the Tribunal would not be able to adjudge and declare, according to Procedural Order no. 3, that Larsen’s “rights as a Hawaiian subject are being violated…by the United States of America,” because the United States was not a party to the proceedings. Without a decision by the Tribunal that finds Larsen’s rights are being violated, he would be unable to get to the second issue of having the Tribunal declare and adjudge that he “does have ‘redress against the Respondent Government’ in relation to these violations.” In light of this, I knew that Larsen would not prevail in these proceedings without the participation of the United States. On the final day of the hearings, December 11, I decided to ask the Tribunal to make a determination on a topic that I felt would not violate the indispensable third party principle that was at the center of these proceedings.
The Hawaiian Government needed a pronouncement by the Tribunal as to the legal status of the Hawaiian Kingdom under international law that would deny the lawfulness of American municipal laws within Hawaiian territory. In other words, the Hawaiian Government needed a pronouncement of international law that could be cited as a bar to American municipal laws from being applied in Hawaiian territory. This fundamental bar of one State’s municipal laws to be applied within the territory of another State centers on the legal meaning of “independence.”
In international arbitration between the Netherlands and the United States at the PCA (Island of Palmas case), the arbitrator explained what the term independence means in international law. In the Award (p. 8), Judge Max Huber stated, “Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. The development of the national organization of State during the last few centuries and, as a corollary, the development of international law, have established this principle of the exclusive competence of the State in regard to its own territory.”
Oppenheim, International Law, Vol. 1, p. 177-8 (2nd ed. 1912), explains: “Sovereignty as supreme authority, which is independent of any other earthly authority, may be said to have different aspects. As excluding dependence from any other authority, and in especial from the authority of the another State, sovereignty is independence. It is external independence with regard to the liberty of action outside its borders in the intercourse with other States which a State enjoys. It is internal independence with regard to the liberty of action of a State inside its borders. As comprising the power of a State to exercise supreme authority over all persons and things within its territory, sovereignty is territorial supremacy. As comprising the power of a State to exercise supreme authority over its citizens at home and abroad, sovereignty is personal supremacy. For these reasons a State as an International Person possesses independence and territorial and personal supremacy.”
With this in mind, I made the following statement and request to the Tribunal that is provided in the transcripts of the final day of the hearings on December 11.
The issue before the Tribunal was whether Larsen could hold to account the Hawaiian Government for allowing the unlawful imposition of American municipal laws within Hawaiian territory that led to his unfair trial and subsequent incarceration. My request of the Tribunal on the last day of the oral hearings was to have the Tribunal acknowledge and pronounce the legal status of Hawai‘i under international law as an “independent State,” which, as a co-equal, the United States could not impose its municipal laws within Hawaiian territory without violating international law.
My intent, was to move beyond the dispute with Larsen and address the unlawful imposition of American municipal laws across the entire territory of Hawai‘i and everyone affected by it, not just Larsen. I understood that my request of the Tribunal would not violate the indispensable third party principle, because for the Tribunal to make this pronouncement there would be no need to address the lawfulness or unlawfulness of the conduct of the United States, but merely to acknowledge historical facts.
My request of the Tribunal was similar to the Philippines request of the South China Sea Tribunal to determine whether or not the landmasses in the South China Sea are islands or rocks. The Philippines argued that since it is merely a determination of facts, the Tribunal would not be getting into the lawfulness or unlawfulness of the conduct of States regarding the sovereignty over these islands. The sovereign claims over these land masses would be whether the land masses are islands as defined under the United Nations Convention on the Law of the Sea that establish a maritime zone, or are they rocks that would not establish the maritime zones. According to Article 121(3) of the Convention, an island must “sustain human habitation or economic life of [its] own” in order to generate maritime zones, i.e., the exclusive economic zone (EEZ) of 200 miles from its coast. This is how the Philippines successfully argued why the principle of indispensable third parties would not apply.
On February 5, 2001, the Tribunal issued the Award on Jurisdiction, and concluded that the United States was an indispensable third party. In paragraph 12.5, the Tribunal explained, “It follows that the Tribunal cannot determine whether the [Hawaiian Kingdom] has failed to discharge its obligation towards [Lance Larsen] without ruling on the legality of the acts of the United States of America. Yet that is precisely what the Monetary Gold principle precludes the Tribunal from doing. As the International Court of Justice explained in the East Timor case, ‘the Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case.’”
The Tribunal, however, did answer my request, which is provided in paragraph 7.4 of the Award. The Tribunal stated, “A perusal of the material discloses that in the nineteenth century the Hawaiian Kingdom existed as an independent State recognised 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.” By using the phrase, “a perusal of the material,” the Tribunal made it clear that its conclusion that the United States recognized the Hawaiian Kingdom as an independent State was drawn from the facts of the case.
By declaring that the United States recognized “the Hawaiian Kingdom as an independent State,” is another way of stating that the United States recognized that only Hawaiian laws could be applied in Hawaiian territory and not the municipal laws of the United States. Through these international proceedings, the Hawaiian Government was able to broaden the impact of an unlawful occupation beyond the Larsen case to now include all persons that have been victimized by the unlawful imposition of American municipal laws within the territory of the Hawaiian Kingdom.
The Award of the South China Sea arbitration’s reference of the Larsen v. Hawaiian Kingdom is recognition of the integrity of the Larsen case itself and why it is now a precedent case regarding the principle of indispensable third parties along with the Monetary Gold case and the East Timor case. It is also an acknowledgment of the caliber of those individuals who served as arbitrators, two of which are now serving as Judges on the International Court of Justice, namely Judge Christopher Greenwood and Judge James Crawford, who served as President of the Tribunal.
When I entered the University of Hawai‘i Political Science Department to get my M.A. and Ph.D. I also planned to address the misinformation regarding Hawai‘i as the 50th State of the American Union and the categorization of native Hawaiians as indigenous people as defined under United Nations documents. This is a false narrative that has already been rebuked by the mere fact of the Larsen case, which has now become a precedent case in international law. This information about the Hawaiian Kingdom has made people very uncomfortable, but that’s what happens when you’re faced with the truth.
The recent South China Sea arbitration, being a landmark case, has cited the Larsen v. Hawaiian Kingdom case as one of the international precedents on “indispensable third parties” along with the Monetary Gold Removed from Rome in 1943 case and East Timor case in its Arbitral Award on Jurisdiction and Admissibility (paragraph 181). This is a significant achievement for the Hawaiian Kingdom in international law.
On July 12, 2016, the Arbitral Tribunal in the South China Sea Arbitration (The Republic of the Philippines v. the People’s Republic of China), established under the auspices of the Permanent Court of Arbitration (PCA), issued its decision in The Hague, Netherlands. The decision found that China’s claims over manmade islands in the South China Sea have no legal basis. Its decision was based on the definition of an “island” under the United Nations Convention on the Law of the Sea (1982) (Convention).
According to Article 121(3) of the Convention, an island must “sustain human habitation or economic life of [its] own” in order to generate maritime zones, i.e., the exclusive economic zone (EEZ) of 200 miles from its coast. Therefore, China’s creation of islands were never islands to begin with but rather reefs or rocks, which precluded China from claiming any maritime zones. For background of the dispute visit the New York Times “Philippines v. China, Q. and A. on South China Sea.”
At first glance, it would appear that China contested the jurisdiction of the Arbitral Tribunal in a Position Paper it drafted on December 7, 2014, and on this basis refused to participate in the proceedings held at the PCA in The Hague, Netherlands. So how is it possible that the Arbitral Tribunal pronounces a ruling against China when it hasn’t participated in the arbitration?
The simple answer is that the Arbitral Tribunal could issue a ruling because China “did” participate in the proceedings and has consented to PCA’s authority to establish the Tribunal by virtue of the UN Convention on the Law of the Sea (1982). As noted in the PCA’s press release, the PCA currently has 12 other cases established under Annex VII of the Law of the Sea Convention. China is a State party to the UN Convention on the Law of the Sea, and arbitration is recognized as a means to settle disputes under Annex VII.
As a State party to the Convention, China consented to arbitration even if it chose not to participate, but it did signify its participation when it made its position public regarding the arbitration proceedings. According to the Arbitral Tribunal in its Arbitral Award on Jurisdiction and Admissibility, it stated in paragraph 11, “the non-participation of China does not bar this Tribunal from proceeding with the arbitration. China is still a party to the arbitration, and pursuant to the terms of Article 296(1) of the Convention and Article 11 of the Annex VII, it shall be bound by any award the Tribunal issues.”
What is not commonly understood is that there are two matters of jurisdiction in cases that come before the PCA. The first is “institutional jurisdiction” of the PCA, and the second is “subject matter jurisdiction” of the Arbitral Tribunal over the particular dispute.
As an intergovernmental organization established under the 1899 Hague Convention, I, and the 1907 Hague Convention, I, the PCA facilitates the creation of ad hoc Arbitral Tribunals to settle disputes between two or more States (interstate), between a State and an international organization, between two or more international organizations, between a State and a private entity, or between an international organization and a private entity (United Nations Dispute Settlement, Permanent Court of Arbitration, p. 15). Disputes must be “international” and not “municipal,” which are disputes that go before national courts of States and not international courts or tribunals.
An explanation of the PCA’s institutional jurisdiction is also provided in the South China Sea case press release. On page 3 the press release the PCA states, “The Permanent Court of Arbitration is an intergovernmental organization established by the 1899 Hague Convention on the Pacific Settlement of International Disputes. The PCA has 121 Members States. Headquartered at the Peace Palace in The Hague, the Netherlands, the PCA facilitates arbitration, conciliation, fact-finding, and other dispute resolution proceedings among various combinations of States, State entities, intergovernmental organizations, and private parties.” China became a member State of the PCA on Nov. 21, 1904, and the Philippines on Sep. 12, 2010.
The “institutional jurisdiction” was satisfied by the PCA because both the Philippines and China are States, which makes it an interstate arbitration, and both are parties to the UN Convention on the Law of the Sea, which under Annex VII provides for arbitration of disputes under the Convention. It was under this provision that the PCA could establish the Arbitral Tribunal.
The first matter that the Tribunal had to address was whether it had “subject matter jurisdiction” over the dispute, which it found that it did. In paragraph 146 of the Arbitral Award, the Tribunal stated, “China’s Position Paper was said by the Chinese Ambassador to have “comprehensively explain[ed] why the Arbitral Tribunal…manifestly has no jurisdiction over the case.” In its Procedural Order No. 4, para. 1.1 (21 April 2015), the Tribunal explained, “the communications by China, including notably its Position Paper of 7 December 2015 and the Letter of 6 February 2015 from the Ambassador of the People’s Republic of China to the Netherlands, effectively constitute a plea concerning this Arbitral Tribunal’s jurisdiction for the purposes of Article 20 of the Rules of Procedure and will be treated as such for the purposes of this arbitration.”
In this initial phase of jurisdiction, the Tribunal, however, also had to deal with the rule of “indispensable third parties” which applied to States that are not participating in the arbitration and whose rights could be affected by the Tribunal’s decision. These States were Viet Nam, Malaysia, Indonesia and Brunei. This rule would not apply to China since the Tribunal recognized China’s participation. Paragraph 157 of the Arbitral Award addressed the indispensable third-party rule, i.e. Viet Nam, which states, “The Tribunal noted that this arbitration differs from past cases in which a court or tribunal has found the involvement of a third party to be indispensable. The Tribunal recalled that ‘the determination of the nature of and entitlements generated by the maritime features in the South China Sea does not require a decision on issues of territorial sovereignty’ and held accordingly that ‘[t]he legal rights and obligation of Viet Nam therefore do not need to be determined as a prerequisite to the determination of the merits of the case.'”
In other words, the Tribunal was going to determine in accordance with the UN Convention on the Law of the Sea, whether or not the reefs and rocks in the South China Sea constitute the definition of islands as defined under the Convention, which would determine whether or not it had a territorial sea of 12 miles and an EEZ (Exclusive Economic Zone) of 200 miles. It would not be determining matters of sovereignty over the islands. If they weren’t islands, but rather reefs or rocks, then China’s claims to a territorial sea and an EEZ would become irrelevant. The Arbitral Award determined that they were not islands as defined under the UN Convention on the Law of the Sea.
Of importance in these proceedings is that the Larsen v. Hawaiian Kingdom was specifically referenced in the Award on Jurisdiction in paragraph 181, which was also referenced in the Arbitral Award, paragraph 157, footnote 98. In the Award on Jurisdiction, the Tribunal stated, “The present situation is different from the few cases in which an international court or tribunal has declined to proceed due to the absence of an indispensable third-party, namely in Monetary Gold Removed from Rome in 1943 and East Timor before the International Court of Justice and in the Larsen v. Hawaiian Kingdom arbitration. In all of those cases, the rights of the third States (respectively Albania, Indonesia, and the United States of America) would not have been affected by a decision in the case, but would have ‘form[ed] the very subject matter of the decision.’ Additionally, in those cases the lawfulness of activities by third States was in question, whereas here none of the Philippines’ claims entail allegations of unlawful conduct by Viet Nam or other third States.”
In the Larsen case, the PCA exercised its “institutional jurisdiction” when it convened the Arbitral Tribunal, because it recognized that the Hawaiian Kingdom is a “State” in a dispute with a Hawaiian subject who was a “private entity.” Like the South China Sea case, once the Tribunal was convened, it had to address whether or not it had subject matter jurisdiction over the dispute between Larsen and the Hawaiian Kingdom, because of the fact that the United States was not a party.
This dispute was specifically stated in the arbitration agreement that the PCA based its institutional jurisdiction. Paragraph 2.1 of the Arbitral Award states, “(a) Lance Paul Larsen, Hawaiian subject, alleges 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, and in violation of the principles of international law laid [down] in the Vienna Convention on the Law of Treaties, 1969, by allowing the unlawful imposition of American municipal laws over claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom; (b) Lance Paul Larsen, a Hawaiian subject, alleges that the Government of the Hawaiian Kingdom is also in violation of the principles of international comity by allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.”
What was at the center of the dispute was the unlawful imposition of American municipal laws within the territory of the Hawaiian Kingdom. The Tribunal was not established to determine whether or not the Hawaiian Kingdom exists as a “State,” which was already recognized by the PCA prior to establishing the Tribunal under its mandate of ensuring it had “institutional jurisdiction” in the first place.
According to the American Journal of International Law (vol. 95, p. 928), “At the center of the PCA proceeding was…that the Hawaiian Kingdom continues to exist and that the Hawaiian Council of Regency (representing the Hawaiian Kingdom) is legally responsible under international law for the protection of Hawaiian subjects, including the claimant. In other words, the Hawaiian Kingdom was legally obligated to protect Larsen from the United States’ ‘unlawful imposition [over him] of [its] municipal laws’ through its political subdivision, the State of Hawaii. As a result of this responsibility, Larsen submitted, the Hawaiian Council of Regency should be liable for any international law violations that the United States committed against him.” If the Hawaiian Kingdom did not exist as a State, the PCA would not have established the Arbitral Tribunal to address the dispute.
In these proceedings, however, the Council of Regency was attempting to get the Tribunal to pronounce the existence of the Hawaiian Kingdom and even try to see if the Tribunal could issue some interim measures of protection. This was deliberately done to show that the Hawaiian Kingdom was taking affirmative steps, even during the proceedings, to do what it could in addressing the unlawful imposition of American municipal laws within Hawaiian territory, which led to Larsen’s unfair criminal trial and subsequent incarceration.
In the Arbitral Award, the Tribunal concluded that the United States was an indispensable third party. In paragraph 12.5, the Tribunal explained, “It follows that the Tribunal cannot determine whether the [Hawaiian Kingdom] has failed to discharge its obligation towards [Lance Larsen] without ruling on the legality of the acts of the United States of America. Yet that is precisely what the Monetary Gold principle precludes the Tribunal from doing. As the International Court of Justice explained in the East Timor case, ‘the Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case.'” It is clear that the Tribunal recognized the Hawaiian Kingdom as a “State” and the lawfulness of its conduct, and the United States as a “third State” and the lawfulness of its conduct.
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.
In a move to bring international attention to the humanitarian crisis in the Hawaiian Islands as a result of the United States prolonged and illegal occupation since the Spanish-American War, a Complaint was submitted to the United Nations Human Rights Council (Council) on May 23, 2016. Dr. Keanu Sai represents the complainant, Kale Kepekaio Gumapac, as his attorney-in-fact. Dr. Sai also represents Gumapac before Swiss authorities regarding war crimes. Additional documents that accompanied the Complaint, included: War Crimes Report: Humanitarian Crisis in the Hawaiian Islands by Dr. Sai, his Declaration and Curriculum Vitae.
“The lodging of the complaint was two-fold,” explains Dr. Sai. “First, the complaint will draw attention to the prolonged occupation of the Hawaiian Kingdom, which has created a humanitarian crisis of unimaginable proportions never before seen. Second, the purpose of the complaint is to report the war crimes committed against Kale Gumpac by Deutsche Bank, officials of the State of Hawai‘i, and others, which is now before the Swiss Federal Criminal Court. As a victim of war crimes, Mr. Gumapac is one of thousands, if not millions of victims who reside in Hawai‘i under an illegal foreign occupation.”
The Council was established in 2006 by the United Nations General Assembly and was formerly known as the United Nations Commission on Human Rights. The General Assembly gave the Council two main responsibilities: (a) promote universal respect for the protection of human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner; and (b) address situations of violations of human rights, including gross and systematic violations, and make recommendations to resolve them. The Council is comprised of 47 member States of the United Nations who are elected by the United Nations General Assembly for a term of three years.
The Council has a human rights mandate, but has also included as part of its mandate international humanitarian law. International human rights law are rights inherent in all human beings, whatever their nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. These rights are expressed in treaties such as the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. International humanitarian law is a set of rules to protect civilians and non-combatants during an armed conflict, which includes military occupation. Humanitarian law is expressed in treaties such as the 1907 Hague Convention, IV, and the 1949 Geneva Convention, IV.
In the past, it was thought that human rights law applied only during peace time and humanitarian law applied only during armed conflict, but current international law recognizes that both bodies of law are considered as complementary sources of obligations in situations of armed conflict. In its 2008 Resolution 9/9—Protection of the human rights of civilians in armed conflict, the Council emphasized “that conduct that violates international humanitarian law, including grave breaches of the Geneva Conventions of 12 August 1949, or of the Protocol Additional there of 8 June 1977 relating to the Protection of Victims of International Armed Conflicts (Protocol I), may also constitute a gross violation of human rights.”
The Council then reiterated “that effective measures to guarantee and monitor the implementation of human rights should be taken in respect of civilian populations in situations of armed conflict, including people under foreign occupation, and that effective protection against violations of their human rights should be provided, in accordance with international human rights law and applicable international humanitarian law, particularly Geneva Convention IV relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and other international instruments.”
Accompanying the Complaint is a War Crime Report that provides a comprehensive narrative of Hawai‘i’s legal and political history since the nineteenth century to the present. In the Report, Dr. Sai explains, “The Report will answer, in the affirmative, three fundamental questions that are quintessential to the current situation in the Hawaiian Islands:
- Did the Hawaiian Kingdom exist as an independent State and a subject of international law?
- Does the Hawaiian Kingdom continue to exist as an independent State and a subject of International Law, despite the illegal overthrow of its government by the United States?
- Have war crimes been committed in violation of international humanitarian law?”
After answering these questions in the affirmative, Dr. Sai would then conclude that the UNHRC has the authority to investigate the complaint “under the complaint procedure provided for in paragraph 87 of the annex to Human Rights Council resolution 5/1.”
Before providing the facts of Gumapac’s case, the Complaint gives a short summary of the Hawaiian Kingdom’s continued existence as a State under international law, and that this status was explicitly recognized by the Secretariat of the Permanent Court of Arbitration (PCA) in Lance Larsen v. Hawaiian Kingdom (1999-2001).
In the Complaint, Dr. Sai states, “Since the occupation began, the United States engaged in the criminal conduct of genocide under humanitarian law through denationalization. After local institutions of Hawaiian self-government were destroyed by the United States through its installed insurgency, a United States pattern of administration was imposed in 1900, whereby the former Hawaiian national character was obliterated.”
Dr. Sai went on to provide a pattern of criminal conduct in violation of international humanitarian law: “The United States interfered with the methods of education; compelled education in the English language; banned the use of Hawaiian, being the national language, in the schools; compulsory or automatic granting of United States citizenship upon Hawaiian nationals; imposed conscription of Hawaiian nationals into the armed forces of the United States; imposed the duty of swearing the oath of allegiance; confiscated and destroyed property of Hawaiian nationals for militarization; pillaged the property and estates of Hawaiian nationals; imposed American administrative and judicial systems; imposed American financial and economic administration; colonized Hawaiian territory with nationals of the United States; permeated the economic life through individuals whose nationality and/or allegiance was American; and denied Hawaiian nationals of aboriginal blood their vested right to health care at no charge at Queen’s Hospital, which was established by the Hawaiian government for that purpose.”
The Complaint calls upon the Council to take action without haste and recommends the Council to:
- Strongly call upon the Government of the United States of America and its armed force, the State of Hawai‘i, to take urgent measures to comply fully with their obligations under international law, including international humanitarian law and human rights law;
- Underline that the Government of the United States of America has the primary responsibility to make every effort to strengthen the protection of the civilian population in the Hawaiian Islands and to investigate and bring to justice perpetrators of violations of human rights and international humanitarian law; and
- Appoint a Special Rapporteur on the humanitarian crisis in the Hawaiian Islands given the gravity and severity of an illegal and prolonged occupation of an independent State that has been allowed to continue unfettered without precedent in the history of international relations.
Additionally, the Council oversees a process called Universal Periodic Review (UPR), which involves a review of the human rights records of all member States of the United Nations, which includes its record of complying with international humanitarian law. In UPRs, the Council decided in its Resolution 5/1 that “given the complementary and mutually interrelated nature of international human rights law and international humanitarian law, the review shall taken into account applicable international humanitarian law.”
In the Complaint, Dr. Sai also draws attention to the UPR done on the United States in 2015. “The February 6, 2015 Report of the United States submitted to the United Nations High Commissioner for Human Rights in Conjunction with the Universal Periodic Review deliberately withheld information of the Hawaiian Kingdom despite the United States’ full and complete knowledge of arbitration proceedings held under the auspices of the PCA, and where the Secretariat of the PCA explicitly recognized the continuity of the Hawaiian Kingdom.”
Dr. Sai further states that “the draft report of the Working Group on the Universal Periodic Review of the United States dated May 21, 2015, and the final report of the United Nations Human Rights Council adopted on September 24, 2015, omits any mention of the Hawaiian Kingdom as well.” Instead, the 2015 UPR of the United States treats native Hawaiians as an indigenous people, which, under United Nations instruments, are nations of people that are non-States and reside within the territory of a State, such as Native American tribes. Common words that are associated with indigenous people include terms such as self-determination, colonization, and decolonization.
The 2015 UPR reflects the deception that has been perpetuated by the United States in order to conceal its prolonged occupation of the Hawaiian Kingdom that has now lasted for over a century, and the genocide of the Hawaiian citizenry who have been led to believe that aboriginal Hawaiians are an indigenous people that have been colonized by the United States. In the Complaint, Dr. Sai states, “Hawaiian nationals of aboriginal blood are not indigenous people as defined under United Nations instruments, but are defined under Hawaiian Kingdom law as Hawaiian subjects who comprise the majority of the national population.”
The American occupation of Hawai‘i is the longest occupation in the history of international relations, and it will be a shock for the international community to find out that the United States seized an internationally recognized neutral country in order to bolster its military, and carried out a policy of genocide through denationalization in violation of international humanitarian law. This policy that was carried out in 1900 resulted in the obliteration of Hawaiian national consciousness among the citizenry of the Hawaiian Kingdom in less then two generations.
Dr. Lynette Cruz interviews Dr. Sai on the topic of genocide through denationalization on her television show, Issues that Matter. Dr. Sai explains the difference between international humanitarian law and human rights law, and how genocide has and continues to occur through denationalization of Hawaiian subjects.
The following protest by Queen Lili‘uokalani dated June 20, 1894 was lodged with the United States Secretary of State Walter G. Gresham. The protest was delivered by H.A. Widemann on June 22, 1894 to United States diplomat Albert S. Willis, assigned to the American Legation in Honolulu. Queen Lili‘uokalani’s protest centers on the events that transpired in January 1893 on the pretext of war and the creation of a pretended government.
January 17, 1893, was the first armed conflict between the Hawaiian Kingdom and the United States of America. The second armed conflict would occur on August 12, 1898 when the Hawaiian Kingdom would be unlawfully occupied by the United States during the Spanish-American War.
The pretended government installed by the United States on January 17, 1893, calling itself the provisional government, would change its name to the Republic of Hawai‘i in 1894, to the Territory of Hawai‘i in 1900, and finally to the State of Hawai‘i in 1959.
Secretary of State
To His Excellency
Albert S. Willis
U.S. Envoy Extraordinary Minister Plenipotentiary.
Having in mind the amicable relations hitherto existing between the government which you here represent and the government of Hawaii, as evidenced by many years of friendly intercourse, and being desirous of bringing to the attention of your government the facts here following, I, Liliuokalani, by the grace of God, and under the Constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest that I am now and have continuously been since the 20th day of January A.D. 1891, the Constitutional Sovereign of the Hawaiian Kingdom; that on the 17th day of January A.D. 1893 – (in the words of the President of the United States himself) – “By an act of war, committed with the participation of a diplomatic representative of the United States, and without authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown. A substantial wrong has thus been done which a due regard for our national character as well as the rights of the injured peoples requires we should endeavor to repair;” that on said date I and my government prepared a written protest against any and all acts done against myself and the Constitutional government of the Hawaiian Kingdom by certain persons claiming to have established a provisional government of and for this Kingdom, that said protest was forwarded to the President of the United States, also to Sanford B. Dole, Vice Chairman of the Executive Council of the said Provisional government, and was by the latter duly acknowledged; that in response to said protest the President of the United States sent a special commissioner in the person of Honorable James H. Blount to Honolulu to make an accurate, full, and impartial investigation of the facts attending the subversion of the Constitutional Government of Hawaii and the installment in its place of the Provisional Government; that said Commissioner arrived in Honolulu on the 29th day of March, A.D. 1893 and fulfilled his duties with untiring diligence and with care, tact and fairness; that said Commissioner found that the government of Hawaii surrendered its authority under a threat of war, until such time only as the government of the United States, upon the facts being presented to it should reinstate the Constitutional Sovereign, and the provisional government was created to exist until terms of union with the United States of America have been negotiated and agreed upon, also that but for the lawless occupation of Honolulu under false pretexts by the United States forces and but for the United States Minister’s recognition of the provisional government when the United States forces were its sole support, and constituted its only military strength, I, and my government would never have yielded to the provisional government, even for a time, and for the sole purpose of submitting my case to the enlightened justice of the United States, or for any purpose; also that the great wrong done to this feeble but independent state by an abuse of the authority of the United States should be undone by restoring the legitimate government.
That since the happening of said events, the executive and the Congress of the United States have formally declined the overtures of the said Provisional Government for the annexation of the Hawaiian Islands to the United States. That notwithstanding said facts, said provisional government has continued to exercise the functions of government in this Kingdom to the present date, and that its course, from the time of its inception to the present, has been marked by a succession of arbitrary, illiberal and despotic acts, and by the enactment and enforcement of 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.
That said Provisional Government has now recently convened and is now holding what it is pleased to term a constitutional convention, composed of nineteen (19) self-appointed members being the President and Executive and Advisory Councils of said provisional government, and eighteen (18) delegates elected by less than ten percent (10%) of the legal voters of the Kingdom, consisting almost entirely of aliens, and chiefly of such aliens as have no permanent home or interest in Hawaii, and which said convention is now considering a draft of a constitution (copy of which is hereto attached) submitted for its approval by the Executive Council of said provisional government consisting of the President and Ministers thereof.
That it is the expressed purpose of the said provisional government to promulgate such Constitution as shall be approved by said convention without submitting it to a vote of the people, or of any of the people, and to thereupon proclaim a government under such constitution, and under the name of the Republic of Hawaii.
That the said provisional government has not assumed a republican or other Constitutional form, but has remained a mere executive council or oligarchy, set up without the consent of the people; that it has not sought to find a permanent basis of popular support, and has given no evidence of an intention to do so; that its representatives assert that the people of Hawaii are unfit for popular government and frankly avow that they can be best ruled by arbitrary or despotic power, and that the proposed constitution so submitted by said executive council of the provisional government for the approval of said convention does not provide for or contemplate a free, popular or republican form of government but does contemplate and provide for a form of government of arbitrary and oligarchical powers, concentrated in the hands of a few individuals irresponsible to the people, or to the representatives of the people, and which is opposed to all modern ideas of free government.
Wherefore, I, the constitutional sovereign of the Hawaiian Kingdom on behalf of myself and the people of my said Kingdom do hereby again most solemnly protest against the acts aforesaid and against any and all other acts done against myself, my people, and the Constitutional government of the Hawaiian Kingdom, and I do hereby most earnestly request that the government represented by you will not extend its recognition to any pretended government of the Hawaiian Islands under whatever name it may apply for such recognition, other than the constitutional government so deposed as aforesaid, – except such government shall show its title to exist by the will of the people of Hawaii, expressed at an election wherein the whole people shall have had an opportunity, unembarrassed by force, and undeterred by fear or fraud to register their preferences as to the form of government under which they will live.
With assurances of my esteem, I am, Sir,
The term “war crimes” was not coined until 1919 after the First World War ended in Europe. A common misunderstanding is that individuals whose criminal conduct constituted a war crime could only be prosecuted if that conduct arose after 1919. This is not the case because under the principles of international law, war crimes could have been committed since, at least, 1874, when delegates of fifteen European States gathered in Brussels, Belgium, at the request of Russia’s Czar Alexander II, in order to draft an international agreement concerning the laws and customs of war.
An agreement was made, but it wasn’t ratified by the fifteen States. It did, however, lead to the adoption of the Manual of the Laws and Customs of War at Oxford in 1880. Both the Brussels Declaration and the Oxford Manual formed the basis of the two Hague Conventions of 1899 and 1907.
At the Peace Conference held in The Hague, Netherlands in 1899, countries from across the world met in order to codify what was already accepted as customary international law regarding the rules of warfare and occupation, which is known today as international humanitarian law. The cornerstone of international humanitarian law during the occupation of a State is the duty of the occupying State to administer the laws of the occupied State, which is reflected in Article 43 of the 1899 Hague Convention, II.
Article 43 states, “The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” This article is a combination of Article 2, “The authority of the legitimate Power being suspended and having in fact passed into the hands of the occupants, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and safety,” and Article 3, “With this object he shall maintain the laws which were in force in the country in time of peace, and shall not modify, suspend or replace them unless necessary,” of the 1874 Brussels Declaration. The Brussels Declaration was referenced in the Preamble of the 1899 Hague Convention, II. Article 43 was restated in the 1907 Hague Convention, IV.
The contracting States to the 1899 Hague Convention, II, also recognized that they were codifying customary international law and not creating new law. In its Preamble, it 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 particular provision of the Preamble has come to be known as the Martens clause. Professor von Martens was the Russian delegate at the 1899 Hague Peace Conference, that recommended this provision be placed in the Preamble after the delegates were unable to agree on the status of civilians who took up arms against the occupying State.
The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties was established at the Paris Peace Conference in 1919 after World War I. Its role was to investigate the allegations of war crimes and recommend who should be prosecuted. In its report (Pamphlet No. 32, p. 18), the Commission identified 32 war crimes, two of which were “usurpation of sovereignty during military occupation” and “attempts to denationalise the inhabitants of occupied territory.”
Although these crimes were not specifically identified in 1899 Hague Convention, II, or the 1907 Hague Convention, IV, the Commission relied solely on the Martens clause in the 1899 Hague Convention, II. In other words, the Commission concluded that the war crimes of “usurpation of sovereignty during military occupation” and “attempts to denationalise the inhabitants of occupied territory” were recognized under principles of international law since at least the 1874 Brussels Declaration.
Under the war crime of usurpation of sovereignty during military occupation, the Commission concluded that from 1915-1918, Bulgaria engaged in criminal conduct when it “Proclaimed that the Serbian State no longer existed, and that Serbian territory had become Bulgarian,” and that “official orders show efforts of Bulgarisation (Pamphlet No. 32, p. 38).” The Commission also concluded Bulgaria committed the following acts of usurpation of sovereignty:
- Serbian law, courts, and administration ousted
- Taxes collected under Bulgarian fiscal regime
- Serbian currency suppressed
- Public property removed or destroyed, including books, archives and MSS (g., from the National Library, the University Library, Serbian Legation at Sofia, French Consulate at Uskub)
- Prohibited sending Serbian Red Cross to occupied Serbia
The Commission also concluded that Austrian and German authorities also engaged in the following criminal conduct of usurpation of sovereignty during military occupation from 1915 to 1918 during the occupation of Serbia (Pamphlet No. 32, p. 38).
- The Austrians suspended many Serbian laws and substituted their own, especially in penal matters, in procedure, judicial reorganization, &c.
- Museums belonging to the State (g., Belgrade, Detchani) were emptied and the contents taken to Vienna
Under the war crime of attempts to denationalize the inhabitants of occupied territory, the Commission concluded that from 1915-1918, Bulgaria engaged in the following criminal conduct in occupied Serbia (Pamphlet No. 32, p. 39).
- Efforts to impose their national characteristics on the population
- Serbian language forbidden in private as well as official relations
- People beaten for saying “Good morning” in Serbian
- Inhabitants forced to give their names a Bulgarian form
- Serbian books banned—were systematically destroyed
- Archives of churches and law courts destroyed
- Schools and churches closed, sometimes destroyed
- Bulgarian schools and churches substituted—attendance at school made compulsory
- Population forced to be present at Bulgarian national solemnities
The Commission also concluded that Austrian and German authorities also engaged in the following criminal conduct of attempts to denationalize the inhabitants of occupied territory from 1915 to 1918 during the occupation of Serbia (Pamphlet No. 32, p. 39).
- Austrians and Germans interfered with religious worship, by deportation of priests and requisition of churches for military purposes
- Interfered with use of Serbian language
The prosecution of German officials and their Allies for war crimes committed during World War I, however, was dismal. Of 5,000 individuals reported for war crimes only 12 were tried and 6 were convicted. Despite this failure, it was the beginning of imposing criminal liability on individuals for violations of international law that eventually became firmly grounded after the Second World War, which led to war crimes legislation in countries who were contracting parties to the 1949 Geneva Conventions, and also the establishment of the International Criminal Court.
Under the principles of international law, officials of the United States were capable of committing war crimes when the Hawaiian Kingdom was first invaded on January 17, 1893 and occupied until April 1, 1893; and invaded again and occupied since August 12, 1898 during the Spanish-American War. The criminal conduct committed by German, Austrian and Bulgarian officials against Serbia and its people are very similar to the criminal conduct by the United States after 1898 against the Hawaiian Kingdom and its people.
“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”