National Holiday – Independence Day

November 28th is the most important national holiday in the Hawaiian Kingdom. It is the day Great Britain and France formally recognized the Hawaiian Islands as an “independent state” in 1843, and has since been celebrated as “Independence Day,” which in the Hawaiian language is “La Ku‘oko‘a.” Here follows the story of this momentous event from the Hawaiian Kingdom Board of Education history textbook titled “A Brief History of the Hawaiian People” published in 1891.

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The First Embassy to Foreign Powers—In February, 1842, Sir George Simpson and Dr. McLaughlin, governors in the service of the Hudson Bay Company, arrived at Honolulu George Simpsonon business, and became interested in the native people and their government. After a candid examination of the controversies existing between their own countrymen and the Hawaiian Government, they became convinced that the latter had been unjustly accused. Sir George offered to loan the government ten thousand pounds in cash, and advised the king to send commissioners to the United States and Europe with full power to negotiate new treaties, and to obtain aHaalilio guarantee of the independence of the kingdom.

Accordingly Sir George Simpson, Haalilio, the king’s secretary, and Mr. Richards were appointed joint ministers-plenipotentiary to the three powers on the 8th of April, 1842.

William RichardsMr. Richards also received full power of attorney for the king. Sir George left for Alaska, whence he traveled through Siberia, arriving in England in November. Messrs. Richards and Haalilio sailed July 8th, 1842, in a chartered schooner for Mazatlan, on their way to the United States*

*Their business was kept a profound secret at the time.

Proceedings of the British Consul—As soon as these facts became known, Mr. Charlton followed the embassy in order to defeat its object. He left suddenly on September 26th, 1842, for London via Mexico, sending back a threatening letter to the king, in which he informed him that he had appointed Mr. Alexander Simpson as acting-consul of Great Britain. As this individual, who was a relative of Sir George, was an avowed advocate of the annexation of the islands to Great Britain, and had insulted and threatened the governor of Oahu, the king declined to recognize him as British consul. Meanwhile Mr. Charlton laid his grievances before Lord George Paulet commanding the British frigate “Carysfort,” at Mazatlan, Mexico. Mr. Simpson also sent dispatches to the coast in November, representing that the property and persons of his countrymen were in danger, which introduced Rear-Admiral Thomas to order the “Carysfort” to Honolulu to inquire into the matter.

Recognition by the United States—Messres. Richards and Haalilio arrived in Washington early in December, and had several interviews with Daniel Webster, theDaniel Webster Secretary of State, from whom they received an official letter December 19th, 1842, which recognized the independence of the Hawaiian Kingdom, and declared, “as the sense of the government of the United States, that the government of the Sandwich Islands ought to be respected; that no power ought to take possession of the islands, either as a conquest or for the purpose of the colonization; and that no power ought to seek for any undue control over the existing government, or any exclusive privileges or preferences in matters of commerce.” *

*The same sentiments were expressed in President Tyler’s message to Congress of December 30th, and in the Report of the Committee on Foreign Relations, written by John Quincy Adams.

Success of the Embassy in Europe—The king’s envoys proceeded to London, whereAberdeen they had been preceded by the Sir George Simpson, and had an interview with the Earl of Aberdeen, Secretary of State for Foreign Affairs, on the 22d of February, 1843.

Lord Aberdeen at first declined to receive them as ministers from an independent state, or to negotiate a treaty, alleging that the king did not govern, but that he was “exclusively under the influence of Americans to the detriment of British interests,” and would not admit that the government of the United States had yet fully recognized the independence of the islands.

Sir George and Mr. Richards did not, however, lose heart, but went on to Brussels March 8th, by a previous arrangement made with Mr. Brinsmade. While there, they had an interview with Leopold I., king of the Belgians, who received them with great courtesy, and promised to use his influence to obtain the recognition of Hawaiian independence. This influence was great, both from his eminent personal qualities and from his close relationship to the royal families of England and France.

Encouraged by this pledge, the envoys proceeded to Paris, where, on the 17th, M. Guizot, the Minister of Foreign Affairs, received them in the kindest manner, and at once engaged, in behalf of France, to recognize the independence of the islands. He made the same statement to Lord Cowley, the British ambassador, on the 19th, and thus cleared the way for the embassy in England.

They immediately returned to London, where Sir George had a long interview with Lord Aberdeen on the 25th, in which he explained the actual state of affairs at the islands, and received an assurance that Mr. Charlton would be removed. On the 1st of April, 1843, the Earl of Aberdeen formally replied to the king’s commissioners, declaring that “Her Majesty’s Government are willing and have determined to recognize the independence of the Sandwich Islands under their present sovereign,” but insisting on the perfect equality of all foreigners in the islands before the law, and adding that grave complaints had been received from British subjects of undue rigor exercised toward them, and improper partiality toward others in the administration of justice. Sir George Simpson left for Canada April 3d, 1843.

Recognition of the Independence of the Islands—Lord Aberdeen, on the 13th of June, assured the Hawaiian envoys that “Her Majesty’s government had no intention to retain possession of the Sandwich Islands,” and a similar declaration was made to the governments of France and the United States.

At length, on the 28th of November, 1843, the two governments of France and England united in a joint declaration to the effect that “Her Majesty, the queen of the United Kingdom of Great Britain and Ireland, and His Majesty, the king of the French, taking into consideration the existence in the Sandwich Islands of a government capable of providing for the regularity of its relations with foreign nations have thought it right to engage reciprocally to consider the Sandwich Islands as an independent state, and never to take possession, either directly or under the title of a protectorate, or under any other form, of any part of the territory of which they are composed…”

John C CalhounThis was the final act by which the Hawaiian Kingdom was admitted within the pale of civilized nations. Finding that nothing more could be accomplished for the present in Paris, Messrs. Richards and Haalilio returned to the United States in the spring of 1844. On the 6th of July they received a dispatch from Mr. J.C. Calhoun, the Secretary of State, informing them that the President regarded the statement of Mr. Webster and the appointment of a commissioner “as a full recognition on the part of the United States of the independence of the Hawaiian Government.”

The Meaning of Hawaiian Independence in International Law

As the Hawaiian Kingdom approaches the celebration of its most important national holiday Lā Ku‘oko‘a (Independence Day) on November 28—Saturday, it is important to understand just what the term “independence” really means. Common misunderstandings are statements such as “independence advocates” or “people who want Hawaiian independence.” These statements assume Hawai‘i is not independent, where independence is a political aspiration and not a legal reality. It is also evidence of denationalization through Americanization that has nearly obliterated the national consciousness of the Hawaiian Kingdom in the minds of the people.

Patriotic Exercises_TH

In international relations and law, independence reflects the status of a State whereby the international community recognizes that only the laws of that particular State apply over its territory “independent” of other laws over other States and their territories. Only independent States are subjects of international law or members or the Family of Nations. In other words you can be a State, but not be independent, such as the State of New York, which once was an independent State but is no longer today.

After the American Revolution, the State of New York became an independent State along with the other former twelve British colonies, who were all member States of a political union called the United Stated States of America, which was a confederation since 1777. A confederation is a political union of independent States, such as today’s European Union, which is a commercial union of independent States.

Article 1 of the 1783 Treaty of Paris that ended the American Revolution, specifically states, “His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and Independent States.” For the next six years, the international community recognized that only New York law applied over the territory of New York to the exclusion of any foreign States’ laws, such as the laws of Great Britain and France.

In 1789, New York would lose its independence of its laws when it chose to join an American Federation whereby all thirteen American independent States would relinquish their independence to a Federal government thereby creating the United States of America as the world knows it today. This is when the United States of America replaced the former thirteen independent States as the single independent State under international law. No longer being an independent State, New York has two separate laws that apply with equal force within its territory—United States Federal law and State of New York law.

When Great Britain and France jointly proclaimed on November 28, 1843 that both States recognized the Hawaiian Kingdom as an Independent State, it meant that only Hawaiian law would apply over Hawaiian territory, which signified Hawaiian independence. Even more surprising was that the Hawaiian Kingdom was the only non-European Power admitted into the Family of Nations with full recognition of its independence of Hawaiian law over Hawaiian territory.

1843 Declaration_p_1(color)

1843 Declaration_p_2(color)

Other non-European Powers such as Japan were not admitted as independent States into the Family of Nations until 1899, and since 1858, Japan had unequal treaties whereby independent States, such as the United States of America, applied their own laws within Japanese territory over their citizenry. Under the 1858 American-Japanese unequal treaty, American citizens could only be prosecuted in Japan under American law and tried by the American Consulate serving as the Court. The Hawaiian Kingdom also had an unequal treaty with Japan. Under the 1871 Hawaiian-Japanese Treaty, Hawaiian subjects in Japan could only be prosecuted under Hawaiian law by the Hawaiian Consulate in Tokyo.

Since the American occupation began, Hawaiian independence is at the core of the law of occupation. This means only Hawaiian law must be temporarily administered by the occupying State. No other law can be administered in an occupied State because it is independent. The laws of occupation would not apply if Hawai‘i was not an independent State.

In international arbitration between the Netherlands and the United States at the Permanent Court of Arbitration (Island of Palmas case) from 1925-1928, the arbitrator explained independence. Judge 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.”

Independence refers to “political” independence and not “physical” independence from another State. Oppenheim, International Law, Vol. 1, 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.”

Occupation does not extinguish independence/sovereignty, but rather it is protected and maintained under international law. U.S. Army FM-27-10The Law of Land Warfare, acknowledges this. Chapter 6 covers occupation. Section 358 states, “Being an incident of war, military occupation confers upon the invading force the means of exercising control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty. The exercise of these rights results from the established power of the occupant and from the necessity of maintaining law and order, indispensable both to the inhabitants and to the occupying force. It is therefore unlawful for a belligerent occupant to annex occupied territory or to create a new State therein while hostilities are still in progress.”

International Arbitration: Larsen vs. Hawaiian Kingdom (1999-2001)

Many people are not familiar with dispute resolution under international law and the role the Permanent Court of Arbitration (PCA) plays in international relations.

Peace Palace

When the first International Peace Conference was convened in July 1899 in The Hague, Netherlands, the major States of the world were in attendance. Its first treaty—Convention for the Pacific Settlement of International Disputes, established a global institution for international dispute settlement called the Permanent Court of Arbitration. This international court predates the Permanent Court of International Justice established by the League of Nations from 1922-1946 and its successor the International Court of Justice (ICJ) established by the United Nations from 1946-present.

The PCA is not your conventional court that has permanent sitting judges, but rather it has a permanent secretariat called the International Bureau, which is headed by a Secretary General. After the PCA accepts disputes from parties, the Bureau facilitates the establishment of ad hoc Tribunals in order to resolve the disputes depending on the arbitration agreement between the parties and the applicable rules. The fundamental difference between a court with judges and a tribunal with arbitrators is that the arbitrators are selected by the parties based on their expertise in the area of the dispute. Judges may not be experts in areas of the dispute and therefore there is a need to rely on expert witnesses. Arbitration alleviates that requirement because the arbitrators themselves are the experts.

The PCA was initially limited to disputes between States that involved matters of public international law as well as arbitrating disputes over territorial sovereignty. By the 1930s, the PCA expanded its jurisdiction to include private parties that had a dispute with a State. One of these first cases involved a dispute between Radio Corporation of America, a private party, and China, being the State (RCA vs. China). Today, the jurisdiction of the PCA include disputes: (1) between two or more States; (2) a State and an international organization; (3) two or more international organizations; (4) a State and a private party; and (5) an international organization and a private party.

In 1999, a dispute arose between the Government of the Hawaiian Kingdom and a Hawaiian subject over the unlawful imposition of American laws in Hawaiian territory. The Hawaiian subject, Lance Larsen, was convicted under American laws and was incarcerated for 30 days, 7 of which were in solitary confinement. Mr. Larsen’s attorney, Ms. Ninia Parks, alleged that the Hawaiian Government was “negligent” by not taking affirmative steps to prevent the imposition of American laws in the Hawaiian Kingdom. She also alleged that the Hawaiian Government was a violation of its 1849 Treaty with the United States. Article 8 of the treaty states, “and each of the two contracting parties engage that the citizens or subjects of the other residing in their respective States shall enjoy their property and personal security, in as full and ample manner of their own citizens or subjects, of the subjects or citizens of the most favored nation, but subject always to the laws and statutes of the two countries respectively.”

After negotiations in Honolulu, an arbitration agreement was reached and on November 8, 1999, it was submitted to the PCA for acceptance. The arbitration agreement provided the allegations:

“(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; and

(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.”

Tjaco_van_den_HoutAs part of the International Bureau’s due diligence into the status of the Hawaiian Kingdom as an independent State under international law, the PCA’s Secretary General Van Den Hout made a formal recommendation to David Keanu Sai, Agent for the Hawaiian Government, to provide a formal invitation to the United States to join in the arbitration proceedings. This would have one of three outcomes—first, the United States would dispute the existence of the Hawaiian Kingdom as a State and the PCA would terminate the proceedings, second, it could join the arbitration in order to answer Larsen’s allegations of violating his rights that led to his incarceration, or, third, it could refuse to join in the arbitration, but allow it to go forward.

John_CrookIn a conference call held in Washington, D.C., on March 3, 2000, Ninia Parksbetween Mr. John Crook, United States Assistant Legal Adviser for United Nations Affairs, Ms. Parks and Mr. Sai, the United States was formally invited to join in the arbitration. It wasn’t until a couple of weeks later that the United States Embassy in The Hague notified the PCA that the United States will not join in the arbitration, but asked permission of the Hawaiian Government and Mr. Larsen’s attorney to have access to all pleadings, transcripts and records. The United States took the third option and did not deny the existence of the Hawaiian Kingdom as a State.

After the PCA verified and recognized that the Hawaiian Kingdom did exist as a State under international law with a legitimate government and that Larsen is a Hawaiian subject, steps were then taken to form the Tribunal. Mr. Keoni Agard, Esquire, was appointed by Ms. Parks, on behalf of Mr. Larsen, and the Hawaiian Government to serve as the Appointing Authority to work with the PCA in order to secure the appointment of three arbitrators. As the Appointing Authority, Mr. Agard was given a list of arbitrators provided by the PCA for each of the parties to select. The Hawaiian Government selected Professor Christopher Greenwood, QC, and Ms. Parks selected Dr. Gavan Griffith, QC. These two arbitrators then recommended the appointment of a Presiding Arbitrator, Professor James Crawford, SC, which both parties agreed to.

Larsen Tribunal

The Hawaiian arbitration fell under the PCA’s jurisdiction as a dispute between a “State and a private party.” The dispute was not about the existence of the Hawaiian Kingdom as a State under international law, but rather centered solely on whether Larsen could sue the Hawaiian Government for negligence by allowing American laws to be imposed in the Hawaiian Kingdom that caused his incarceration. The Tribunal stated to the parties that in this dispute the United States is a necessary party in order for Mr. Larsen to maintain his suit against the Hawaiian Government. The procedural questions that were given to the parties to answer in its written pleadings is whether or not these proceedings can continue without the participation of the United States. The Tribunal cited three international court cases that came before the ICJ and focused on necessary third parties as the precedence—Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom and the United States), East Timor (Portugal v. Australia), and Certain Phosphate Lands in Nauru (Nauru v. Australia).

PCA_SaiAfter written pleadings were submitted, oral hearings were held at The Hague on December 7, 8, and 11, 2000, and the Arbitration Award was filed with the PCA on February 5, 2001. The court concluded that the United States was a necessary third party and without their participation in the arbitration proceedings, Mr. Larsen’s allegations of negligence against the Hawaiian Government could not move forward.

A common misunderstanding was that the dispute between Mr. Larsen and the Hawaiian Government centered on whether the Hawaiian Kingdom continues to exist as a State. It was not. The PCA recognized the continued existence of the Hawaiian Kingdom as a State because the United States, who claimed to have sovereignty over the Hawaiian Islands, did not refute the continued existence of the Hawaiian Kingdom when it had an opportunity to do so. The only claim that the United States had over the Hawaiian Islands was through American legislation and not a treaty. The PCA is very much aware that international law only allows annexation by treaty and not through a State’s municipal legislation.

Of significance in these international arbitration proceedings is that the Tribunal in its Arbitration Award acknowledged “that in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States,” and the PCA recognized the continued existence of the Hawaiian Kingdom as a State in the twenty-first century.

To see the PCA’s explicit recognition of the Hawaiian Kingdom as a State go to the PCA Case Repository of Lance Larsen vs. The Hawaiian Kingdom, and scroll down to name of respondent, “The Hawaiian Kingdom (State),” who is represented by “Mr. David Keanu Sai, Agent, Mr. Peter Umialiloa Sai, First deputy agent, Mr. Gary Victor Dubin, Second deputy agent and counsel.”

International Court Recognizes The Hawaiian Kingdom as a State

PCA CrawfordThe Permanent Court of Arbitration (PCA) has recently uploaded a Case Repository of current cases and past cases that came before the international court. Listed as one of the past cases that came before the PCA was Lance Larsen v. The Hawaiian Kingdom. The international arbitration began on November 8, 1999 and ended February 5, 2001.

The PCA explicitly recognized the Hawaiian Kingdom as a State and the acting Government as its representative in arbitration proceedings instituted by a Hawaiian subject, Lance Larsen. If the Hawaiian Kingdom did not exist today as a State under international law, and there was no lawful government representing the Hawaiian Kingdom, the case would have never been accepted by the PCA. This is also recognition that the Hawaiian Kingdom was never annexed by the United States, but rather occupied since the Spanish-American War in 1898.

The international court’s explicit recognition of the continued existence of the Hawaiian Kingdom as a State under international law and the acting Government is definitive and removes all doubt of Hawai‘i legal status under international law.

Larsen v. Kingdom

The tribunal concluded in its arbitral award that in order for Lance Larsen to maintain his suit against the acting Government, which he alleged was “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 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,” he needed the participation of the United States as an indispensable third party because it was the United States that allegedly violated his rights and not the Hawaiian Kingdom. His claim was that the Hawaiian Kingdom was negligent for allowing the imposition of American laws in the Kingdom in violation of the treaties.

The arbitration tribunal was comprised of three highly respected experts in international law, and two the arbitrators, James Crawford and Christopher Greenwood were selected by the United Nations as judges on the ICJ. The United Nations selection is also recognition of the caliber of the arbitrators who served on the Tribunal in the Hawaiian arbitration.

Other international arbitration cases held at the PCA that was similar to the Hawaiian arbitration, being a dispute between a private entity and a State, include, Hulley Enterprises Limited vs. The Russian Federation (2005), Romak S.A. vs. The Republic of Uzbekistan (2006), and TCW, Inc. and Dominican Energy Holdings, L.P. vs. The Dominican Republic (2008).

The PCA was initially limited to arbitration between States, but has since evolved to include private parties against States. A dispute between private parties alone cannot access the PCA without the participation of a State. “Today the PCA provides services for the resolution of disputes involving various combinations of states, state entities, intergovernmental organizations, and private parties.” The United States was not only one of the signatory States to the 1899 Hague Convention, I, that established the international court, but it was also a party to arbitration cases at the PCA, The United States of America v. The United States of Mexico (1902), The United States of America vs. Venezuela (1909), Great Britain vs. The United States of America (1910), and The United States of America vs. The Netherlands (1925). The most recent arbitration at the PCA was The Republic of Ecuador vs. The United States of America (2011).

ICJ_Peace_Palace

The PCA is only open to disputes involving international law, which is the reason why a dispute between private parties cannot access the international court. The United Nations Charter created the International Court of Justice (ICJ) in 1945 and it is housed in the Peace Palace together with the PCA. Unlike the PCA, the ICJ limits its access to disputes between States and not disputes between a private entity and the State.

The PCA was established in 1899 when States from around the world met in The Hague, Netherlands, in order to codify the laws and customs of war, which was already accepted as customary international law. It’s first treaty—Hague Convention, I, established a permanent court of arbitration to be housed at The Hague. “With the object of facilitating an immediate recourse to arbitration for international differences, which it has not been possible to settle by diplomacy, the Signatory Powers undertake to organize a permanent Court of Arbitration (Article 20).”

The Knowledge Economy Blog Links to Hawaiian Kingdom

Professor Adil Najam, Dean of The Pardee School for Global Studies at Boston University, has a blog The Knowledge Economy. In its October 30, 2015 edition, the Hawaiian Kingdom Blog is listed under “World” affairs. Dr. Sai will also be lecturing at The Pardee School of Global Studies on November 10, 2015. His lecture is titled Hawai‘i: An American State or a State under American Occupation.

Knowledge Economy Blog