In their Motion, the IADL-NLG-WPLC state, “Movants wish to supplement their amicus brief with a letter, dated February 16, 2022, from two international organizations with special consultative status with the U.N. Economic and Social Council and accredited before the Human Rights Council—the International Association of Democratic Lawyers and the American Association of Jurists—which was sent to all Permanent Missions to the United Nations in New York City and Geneva, Switzerland. The letter addresses the ongoing illegal occupation of Hawai‘i under international law and will be presented before the United Nations Human Rights Council at its 49th session in Geneva beginning on February 28, 2022.”
They also state “The letter is provided for informational purposes to the Court and to provide additional context for the urgent and serious issues raised by this case, which are also the current subject of discussion in international forums.”
The Court will have to grant permission for the filing of the joint letter so that it becomes a part of the record. The decision by the judge is forthcoming.
UPDATE: Last night, Magistrate Judge Rom Trader entered an order denying the IADL-NLG-WPLC’s request to file the IADL-AAJ joint letter. The Court stated, “The letter is not being submitted in support of any moving papers, not all drafters of the letter have been approved as amicus, and the movants do not provide any concrete information as to why the letter is even needed.”
As the IADL-NLG-WPLC did state in its motion, “The letter is provided for informational purposes to the Court and to provide additional context for the urgent and serious issues raised by this case, which are also the current subject of discussion in international forums.”
Aside from the procedural matters as stated by Judge Trader, the letter, for informational purposes, can be accessed by the defendants in this case. The Hawaiian Kingdom v. Biden lawsuit is a case of first impression where proceedings are taking place during a prolonged belligerent occupation by the United States outside of its territory. “In a case of first impression, the exact issue before the court has not been addressed by that court, or within that court’s jurisdiction, thus there is no binding authority on that matter.” The letter provides “additional context.”
Yesterday, Russian forces invaded Ukraine from the north, east and south. Russian President Vladimir Putin justified the invasion as a response to the North Atlantic Treaty Organization’s (NATO) coming too close to Russia’s borders. According to the U.S. State Department, NATO “was created in 1949 by the United States, Canada, and several Western European nations to provide collective security against the Soviet Union.” After the fall of the Soviet Union in 1991, Russia has taken the mantle of the former Soviet Union and maintains a very large military force and nuclear weapons. Former Soviet States to the west of Russia became members of NATO with the exception of Ukraine, Belarus and Georgia.
Russia views the encroachment of NATO to its western border as a security threat. In a speech after meeting with French President Emmanuel Macron on February 7, 2022, Putin stated “Of course NATO and Russia potentials are incompatible” and warns of nuclear war if Ukraine joins NATO.
Russia’s aggression against Ukraine is reminiscent of the United States aggression against the Hawaiian Kingdom during the Spanish-American War. As Russia claims NATO is a national security threat to its existence, the United States claimed Japan was an immediate threat of invasion of the United States west coast.
After the United States admitted unlawful overthrow of the Hawaiian Government, Mahan wrote a letter to the Editor of the New York Times where he advocated seizing the Hawaiian Islands. On January 31, 1893, he wrote that the Hawaiian Islands, “with their geographical and military importance, [is] unrivalled by that of any other position in the North Pacific.” Mahan used the Hawaiian situation to bolster his argument of building a large naval fleet. He warned that a maritime power could well seize the Hawaiian Islands, and that the United States should take that first step. He stated that to hold the Hawaiian Islands, “whether in the supposed case or in war with a European state, implies a great extension of our naval power. Are we ready to undertake this?” Mahan would have to wait four years to find an ally in President William McKinley’s Department of the Navy, Assistant Secretary of the Navy, Theodore Roosevelt.
Roosevelt sent a private and confidential letter, on May 3, 1897, to Mahan. He wrote, “I need not tell you that as regards Hawaii I take your views absolutely, as indeed I do on foreign policy generally. If I had my way we would annex those islands tomorrow.” Moreover, Roosevelt told Mahan that Cleveland’s handling of the Hawaiian situation was “a colossal crime, and we should be guilty of aiding him after the fact if we do not reverse what he did.” Roosevelt also assured Mahan “that Secretary [of the Navy] Long shares [their] views. He believes we should take the islands, and I have just been preparing some memoranda for him to use at the Cabinet meeting tomorrow.”
In a follow up letter to Mahan, on June 9, 1897, Roosevelt wrote that he “urged immediate action by the President as regards Hawaii. Entirely between ourselves, I believe he will act very shortly. If we take Hawaii now, we shall avoid trouble with Japan.” Eight days later, on June 16, 1897, the McKinley administration signed a treaty of “incorporation” with its American puppet—the Republic of Hawai‘i, in Washington, D.C. On the following day, Queen Lili‘uokalani submitted a formal protest to the U.S. State Department stating, “I declare such a treaty to be an act of wrong toward the native and part-native people of Hawaii, an invasion of the rights of the ruling chiefs, in violation of international rights both toward my people and toward friendly nations with whom they have made treaties, the perpetuation of the fraud whereby the constitutional government was overthrown, and, finally, an act of gross injustice to me.”
While the so-called treaty failed to get the required 2/3’s vote from the Senate for ratification, a joint resolution of annexation, being an internal law of the United States, was submitted to the House Committee on Foreign Affairs on May 4, 1897, in its place, and pushed through both Houses of the Congress. President McKinley signed it into law on July 7, 1898. In a secret session of the Senate on May 31, 1898, whose transcripts were not opened to the public until 1969, Senator Henry Cabot Lodge acknowledged that the McKinley “Administration was compelled to violate the neutrality of those islands, that protests from foreign representatives had already been received, and complications with other powers were threatened, that the annexation or some action in regard to those islands had become a military necessity.”
The United States aggression against the Hawaiian Kingdom, a sovereign and independent State like Ukraine, gives rise to the proverbial idiom, “who’s calling the kettle black.”
Putin’s warning draws the Hawaiian Kingdom, being a neutral State, into a theater of war should the United States enter the Russia-Ukrainian conflict. According to the U.S. Department of Defense’s Base Structure Report for 2012, the U.S. military has 118 military sites that span 230,929 acres of the Hawaiian Islands, which is 6% of the total acreage of Hawaiian territory. As the headquarters for the U.S.Indo-Pacific Command, being the largest unified combatant command in the world, the Hawaiian Islands are targeted for nuclear strikes by Russia, China and North Korea.
The United States prolonged and illegal occupation of the Hawaiian Kingdom is a direct violation of the Hawaiian Kingdom’s neutrality, which is specifically stated in its treaties with Germany, Spain and Sweden and Norway. Article XV of its treaty with Spain provides “Her Majesty the Queen of Spain engages to respect, in time of war the neutrality of the Hawaiian Islands, and to use her good offices with all the other powers having treaties with the same, to induce them to adopt the same policy toward the said Islands.”
Article 1 of the 1907 Hague Convention, V, provides “The territory of neutral Powers is inviolable,” and Article 2 provides “Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power.” The United States’ violation of these Articles have placed the residents of the Hawaiian Islands into harms way when Japan attacked U.S. military installations on O‘ahu on December 7, 1941, and continue to place Hawai‘i’s residents in harms way in the event of a nuclear attack.
In 1990, the United States Federal Emergency Management Agency (FEMA) published Risks and Hazards: A State by State Guide. One of the subjects included nuclear targets and identified 6 nuclear targets on the island of O‘ahu that coincided with the locations of military posts of the U.S. Army, Navy, Air Force and Marines. Also included as a target is the Headquarters of the U.S. Pacific Command at Camp Smith that lies in the back of a residential area in Halawa. According to FEMA, the entire Island of O‘ahu would be obliterated if a nuclear attack were to take place with few survivors and total destruction of buildings.
Americanization has desensitized Hawai‘i’s population and has made the presence of the U.S. military in the islands normal. Americanization has also erased the memory of the U.S. invasion in 1893 and portrayed the military presence as protecting the islands from an aggressor country intent on invasion, when in fact the Hawaiian Islands were seized in 1898 to serve as a defense to protect the United States west coast from invasion.
After the defeat of the Spanish Pacific Squadron in the Philippines, U.S. Congressman Francis Newlands (D-Nevada), submitted House Resolution 259 annexing the Hawaiian Islands (also known as the Newlands Resolution), to the House Committee on Foreign Affairs on May 4, 1898.
Six days later, hearings were held on the Newlands Resolution, and U.S. Naval Captain Alfred Mahan’s testimony explained the military significance of the Hawaiian Islands to the United States:
“It is obvious that if we do not hold the islands ourselves we cannot expect the neutrals in the war to prevent the other belligerent from occupying them; nor can the inhabitants themselves prevent such occupation. The commercial value is not great enough to provoke neutral interposition. In short, in war we should need a larger Navy to defend the Pacific coast, because we should have not only to defend our own coast, but to prevent, by naval force, an enemy from occupying the islands; whereas, if we preoccupied them, fortifications could preserve them to us. In my opinion it is not practicable for any trans-Pacific country to invade our Pacific coast without occupying Hawai‘i as a base.”
The Hawaiian Islands was and continues to be the outpost to protect the United States and their presence in the Hawaiian Islands is in violation of international law and the laws of occupation.
According to the Articles of State Responsibility for Internationally Wrongful Acts, enforcement of international law must be triggered by the injured State, which in this case is the Hawaiian Kingdom, through its restored government, the Council of Regency. But prior to the triggering State responsibility for an internationally wrongful act or acts, it must be clear as to what is the internationally wrongful act or acts committed against an injured State.
As a sovereign and independent State, the Hawaiian Kingdom possessed certain fundamental rights under international law. The principal corollaries of sovereign and independent States are: first, exclusive jurisdiction over its territory and the population residing there; second, the duty of non-intervention in the territory of exclusive jurisdiction of other States; and third, the obligations arising from customary international law and treaties by contracting States.
These rules are regarded at the highest level of international law and are called jus cogens or peremptory norms. A peremptory norm or rule is one that cannot be downplayed or derogated. To downplay these principles would undermine the very existence of international law and the international order of States.
When the United States invaded the Hawaiian Kingdom with U.S. troops on January 16, 1893, under the false flag of protecting American lives and property, it violated the duty of non-intervention. As a result of the unlawful overthrow of the Hawaiian Kingdom government the following day on January 17th, it violated the exclusive jurisdiction of the Hawaiian government over its territory and its resident population by supplanting an American proxy called the provisional government.
It wasn’t until five years later that the United States Congress enacted an internal law purporting to have annexed a foreign State on July 7, 1898. Two years later, the Congress enacted another internal law changing the name of their insurgency they installed to be called the Territory of Hawai‘i. And in 1959, the Congress changed the name of the Territory of Hawai‘i to the State of Hawai‘i.
When the United States unlawfully overthrew the government of the Hawaiian Kingdom, customary international law at the time obligated the United States to temporarily administer the laws of the Hawaiian Kingdom as an occupied State. The customary international law of occupation was later codified under the 1907 Hague Regulations and the 1949 Fourth Geneva Conventions, both of which the United States and signed and ratified. This failure to administer Hawaiian Kingdom law violated the third principle of obligations arising from customary international law and treaties.
Under international law, there are only three ways in which a State can acquire additional territory. These mechanisms include: cession from other States by a treaty (the Louisiana Purchase by the United States from France in 1803); by the physical occupation of territory that is terra nullius (Latin: “land belonging to no one”), which is land not under the sovereignty or control of any other State; or by prescription, where a State acquires territory from another State through a continued period of uncontested sovereignty.
In the federal lawsuit, Hawaiian Kingdom v. Biden, the United States asserts that it is the legitimate sovereign over the Hawaiian Islands because it “annexed Hawaii in 1898, and Hawaii entered into the union as a state in 1959.” The United States made no reference to a treaty of cession or even a claim by prescription. Instead, it is relying on its internal law as a mechanism for acquiring foreign territory and imposing American law through its creation called the State of Hawai‘i.
As the Permanent Court of International Justice, in The Lotus Case, stated in 1927, “the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside of its territory except by virtue of a permissive rule derived from international custom or from a convention.” Congressional laws are not “a permissive rule derived from international custom or from a convention.”
The significance of this statement is legally profound because the United States explicitly admitted, in a court of law, that it is committing internationally wrongful acts that has led to the commission of war crimes and human rights violations as pointed out in the Amended Complaint. A State cannot rely on internationally wrongful acts as a defense for the violation of international laws. This reasoning is absurd and synonymous with an individual on trial for theft of a car admits to stealing the car as a defense for the theft.
On October 11, 2021, the Council of Regency, by its Ministry of Foreign Affairs, sent a note verbale to all of the embassies accredited to the United Nations in New York City. It stated, “This Note Verbale serves as a notice of claim by an injured State, pursuant to Article 43 of the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts (2001), invoking the responsibility of all Member States of the United Nations who are responsible for the internationally wrongful act of recognizing the United States presence in the Hawaiian Kingdom as lawful to cease that act pursuant Article 30(a), and to offer appropriate assurances and guarantees of non-repetition pursuant to Article 30(b). The form of reparation under Article 31 shall take place in accordance with the provisions of Part Two—Content of the International Responsibility of a State(s).”
There may be confusion between resolving a dispute between the Hawaiian Kingdom and the United States, and enforcement regarding the United States violations of international law since January 16, 1893, when US troops invaded a sovereign and independent State.
A dispute did exist between the Hawaiian Kingdom and the United States when the Hawaiian government was overthrown on January 17, 1893. Queen Lili‘uokalani stated in her conditional surrender to the United States that “I yield to the superior force of the United States of America, whose minister plenipotentiary, has caused United States troops to be landed at Honolulu and declared that he would support the said provisional government.” But in a letter from the Secretary of State John Foster to President Benjamin Harrison, “At the time the provisional government took possession of the Government buildings no troops or officers of the United States were present or took any part whatever in the proceedings.”
The Hawaiian Kingdom was claiming the overthrow was a result of an invasion by the United States, and the United States was claiming that the provisional government was established by a successful revolution without any participation of US troops. President Grover Cleveland, who succeeded President Harrison, stated to the Congress that “The truth or falsity of [the Queen’s] protest was surely of the first importance. If true, nothing but the concealment of its truth could induce our Government to negotiate with the semblance of a government thus created, nor could a treaty resulting from the acts stated in the protest have been knowingly deemed worthy of consideration by the Senate. Yet the truth or falsity of the protest had not been investigated.”
President Cleveland initiated an investigation on March 11, 1893, with the appointment of James Blount, former chairman of the House Committee of Foreign Affairs, as Special Commissioner. Commissioner Blount arrived in the Hawaiian Islands late March and began his investigation on April 1st. He sent periodic reports to Secretary of State Walter Gresham in Washington, D.C., and on July 17, 1893, he submitted his final report.
After going over the reports submitted by Commissioner Blount, Secretary of State Gresham stated in a letter to the President on October 18, 1893, “Refusing to recognize the new authority or surrender to it, [the Queen] was informed that the Provisional Government had the support of the American minister, and, if necessary, would be maintained by the military force of the United States then present; that any demonstration on her part would precipitate a conflict with that force; that she could not, with hope of success, engage in war with the United States, and that resistance would result in a useless sacrifice of life.” Gresham further stated:
When [the Queen’s protest] was prepared at the conclusion of the conference, and signed by the Queen and her ministers, a number of persons, including one or more representatives of the Provisional Government, who were still present and understood its contents, by their silence, at least, acquiesced in its statements, and, when it was carried to President Dole, he [endorsed] upon it, “Received from the hands of the late cabinet this 17th day of January, 1893,” without challenging the truth of any of its assertions.
The dispute of these facts were resolved and Queen Lili‘uokalani was proven correct. In his message to the Congress on December 18, 1893, President Cleveland concluded that the provisional government “was neither a government de facto nor de jure,” but rather self-proclaimed. He went further and stated, “that a candid and thorough examination of the facts will force the conviction that the provisional government owes its existence to an armed invasion by the United States.”
Through executive mediation between the Queen and the new U.S. Minister to the Hawaiian Islands, Albert Willis, that lasted from November 13 through December 18, 1893, an agreement of peace was reached. According to the executive agreement, by exchange of notes, the President committed to restoring the Queen as the Executive Monarch, and the Queen, after being restored, to grant a full pardon to the insurgents. Political wrangling in the Congress, however, blocked President Cleveland from carrying out his obligation of restoration of the Queen.
Five years later during the Spanish-American War, the United States Congress enacted a joint resolution of annexation, and President Cleveland’s successor, President William McKinley, signed it into U.S. law on July 7, 1898. The legislation of every independent State, including the United States, through its Congress, are confined in their operation within the territorial borders of the State that enacted the legislation.
In The Lotus case, the Permanent Court of International Justice stated in 1927 that “the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside of its territory except by virtue of a permissive rule derived from international custom or from a convention.” Since 1898, the United States has been unlawfully imposing American municipal laws over the territory of the Hawaiian Kingdom in violation of international laws and the law of occupation.
There is no dispute between the Hawaiian Kingdom and the United States. Instead, there is the lack of enforcement of international law regarding the United States prolonged and illegal occupation of the Hawaiian Kingdom since 1893.
Enforcement of international law is through the governments of States. Enforcement of international law had been asymmetrical and often called the Achilles heel of international law. From April 25 to June 26, 1945, fifty States met in San Francisco who eventually signed the United Nations Charter with the hope that the new organization would prevent another world war.
The United Nations began to address the subject of enforcement of international law. After nearly forty-years of critical review and analysis, the Articles of State Responsibility for Internationally Wrongful Acts was accepted by vote of the United Nations General Assembly in October 2002. By this resolution, the member States of the United Nations accepted the Articles as a reflection of customary international law, which is binding upon all States in the international system whether they are members of the United Nations or not. The main Articles include:
Article 30. The State responsible for the internationally wrongful act is under an obligation to cease that act, if it is continuing.
Article 31. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.
Article 32. The responsible State may not rely on the provisions of its internal law as justification for failure to comply with its obligations under international law.
Article 35. A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed.
Article 41(1). States shall cooperate to bring to an end through lawful means any serious breach of international law.
Article 41(2). No State shall recognize as lawful a situation created by a serious breach of international law, nor render aid or assistance in maintaining that situation.
In a deliberate move to enforce compliance with international law, the International Association of Democratic Lawyers (IADL) and the American Association of Jurists—Asociación Americana de Juristas (AAJ), sent a joint letter to all the Embassies accredited to the United Nations in New York City and in Geneva regarding the prolonged and illegal belligerent occupation of the Hawaiian Kingdom by the United States since January 17, 1893. The joint letter was sent on February 16, 2022. The Hawaiian Kingdom’s Attorney General received a copy of the letter by email from the IADL and the AAJ on February 18. In its joint letter to the ambassadors to the United Nations, the IADL and the AAJ stated:
For the restoration of international law and the tenets of the UN Charter, the IADL and the AAJ calls upon the United States to immediately comply with international humanitarian law and the law of occupation in its prolonged and illegal occupation of the Hawaiian Islands.
The IADL and the AAJ fully supports the NLG’s 10 November 2020 letter to State of Hawai‘i Governor David Ige urging him to “proclaim the transformation of the State of Hawai‘i and its Counties into an occupying government pursuant to the Council of Regency’s proclamation of June 3, 2019, in order to administer the laws of the Hawaiian Kingdom. This would include carrying into effect the Council of Regency’s proclamation of October 10, 2014, that bring the laws of the Hawaiian Kingdom in the nineteenth century up to date.”
We urge all UN Member States to comply with the Articles of State Responsibility for Internationally Wrongful Acts (2001). The U.S. violation of the Hawaiian Kingdom’s sovereignty and its failure to comply with international humanitarian law for over a century is an internationally wrongful act. As such, UN Member States have an obligation to not “recognize as lawful a situation created by a serious breach…nor render aid or assistance in maintaining that situation,” and member States “shall cooperate to bring to an end through lawful means any serious breach [by a member State of an obligation arising under a peremptory norm of general international law].”
Both the IADL and the AAJ, as non-governmental organizations, have special consultative status with the United Nations Economic and Social Council and are accredited to participate in the Human Rights Council’s sessions as Observers. The IADL and the AAJ are planning to bring this to the attention of the United Nations Human Rights Council at its 49th session when it convenes on February 28, 2022, in Geneva, Switzerland.
Today the United States filed its Reply to the Hawaiian Kingdom’s Opposition to their Motion to Dismiss. At no point in these proceedings has the United States countered the facts and evidence provided by the Hawaiian Kingdom. In other words, the facts of this case have not been contested and, as such, are considered in favor of the Hawaiian Kingdom in its effort to have the federal court transform itself into an Article II Occupation Court.
This is also the first time ever where the United States had to present their position as to its claim of sovereignty over the Hawaiian Islands. In all prior cases that came before the federal courts, the United States relied on the judges of these courts to dismiss the cases because it presents a political question. The political question doctrine prevents federal courts from recognizing the sovereignty of a country if, and only if, the political branches of the President and/or Congress had not already recognized that sovereignty.
In other words, a federal court cannot assert the political question doctrine if a country such as Switzerland filed a complaint in the U.S. District Court in Washington, D.C., against certain officials of the United States because the United States recognized Switzerland as a sovereign and independent State and entered into a treatyof friendship, commerce and extradition with the Swiss government on November 25, 1850.
This is exactly the same situation with the Hawaiian Kingdom where the United States recognized the Hawaiian Kingdom as a sovereign and independent State on July 6, 1844, and entered into a treatyof friendship, commerce and navigation with the Hawaiian Kingdom on December 20, 1849. Just as the United States has a treaty with Switzerland so does the Hawaiian Kingdom has a treatyof friendship, establishment and commercewith Switzerland dated July 10, 1864. The political question doctrine does not apply to the Hawaiian Kingdom but it has been used as an expedient remedy to temporarily protect the United States in its own courts.
In its Motion to Dismiss, the United States takes the position that it has sovereignty over the Hawaiian Islands because the Congress passed a joint resolution of annexation in 1898 and in 1959 Hawai‘i became the 50th State of the Federal Union. This is a frivolous claim because United States laws, which includes the federal constitution, have no force and effect beyond the borders of the United States. If this is true, the United States Congress can pass a joint resolution annexing Canada today. Only by a treaty can one country acquire the territory of another country. As pointed out by the United States Supreme Court, in United States v. Curtiss-Wright Corp., in 1936:
“Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law. As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign.”
This is consistent at the international level where the Permanent Court of International Justice, in The Lotus Case (France v. Turkey), stated, in 1927, “the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State.”
The U.S. District Court claims to be an Article III Court by virtue of Article III of the U.S. Constitution, which provides for the authority of the Judiciary. Because the Supreme Court in Curtiss-Wright stated that “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory,” the U.S. District Court in Hawai‘i cannot claim to be an Article III Court because the U.S. Constitution has no force in foreign territory. It can only exist as an Article II Court under the President’s authority as the commander-in-chief of the armed forces in foreign territory. As stated in the Amicus Brief:
“Under the concept of void ab initio, there are structures that have no legal effect from inception. The United States occupation of Hawai‘i began with unclean hands, and this can only be remedied by a clean slate and a new beginning.”
In the Hawaiian Kingdom’s Opposition to the Motion to Dismiss, it stated that the United States cannot rely on its internal laws, which includes federal court decisions that dismissed cases under the political question doctrine, for its failure to perform its obligation under international law. Under international law, the United States is obligated to administer the laws of the Hawaiian Kingdom because it still exists as a sovereign and independent State despite that its government was illegally overthrown on January 17, 1893. The Permanent Court of Arbitration(PCA), in Larsen v. Hawaiian Kingdom, acknowledged the continued existence of the Hawaiian Kingdom as a State in 1999 and the Council of Regency as its restored government.
In its Reply, the United States continued to attempt to confuse the Court by stating what the Arbitration Tribunal stated and what the PCA did as explained by Italian scholar Professor Federico Lenzerini in his legal opinion, which is attached to the Hawaiian Kingdom’s Motion for Judicial Notice as Exhibit 1. As the Hawaiian Kingdom clearly explained in all of its pleadings to include its Opposition to the Motion to Dismiss, there is a very clear distinction between the institutional jurisdiction of PCA, which is an inter-governmental organization, and the subject matter jurisdiction of the Arbitral Tribunal that is established by the PCA.
In accordance with Article 47 of the 1907 Convention that established the PCA, it allows access to the institutional jurisdiction of the PCA by States that have not signed and ratified the 1907 Convention, which are called non-contracting States. As the Hawaiian Kingdom is not a contracting State to the 1907 Convention, it would have access to the PCA’s institutional jurisdiction under Article 47.
The Arbitral Tribunal in the Larsen case was established in accordance with Article 47 as stated in the PCA’s Annual Reports from 2000 to 2011. If the Hawaiian Kingdom was not a State under international law, there would not have been a Larsen v. Hawaiian Kingdom case. The United States stated in their Reply:
“The primary authority cited as support for Plaintiff’s theory remains Prof. Lenzerini’s interpretation of the significance of the decision by the International Bureau of the Permanent Court of Arbitration (“PCA”) to institute an arbitration involving Plaintiff. The arbitral award explicitly rejects this inference. It demonstrates that the PCA refused to reach a conclusion about Plaintiff’s sovereignty. Nonetheless, even if Plaintiff’s interpretation of the PCA’s actions were correct, it would not matter. The questions raised by Plaintiff and Prof. Lenzerini are classic political questions about the recognition of state sovereignty that the Court has no jurisdiction to answer.”
This statement is convoluted and a word salad. Foremost, the United States implies that the PCA and the Arbitral Tribunal are one in the same when it stated that the “PCA refused to reach a conclusion about Plaintiff’s sovereignty.” This is a false statement because the PCA did reach a conclusion “about Plaintiff’s sovereignty” when it formed the Tribunal on June 9, 2000. The proceedings were initiated on November 8, 1999, but the International Bureau had to be sure that the Hawaiian Kingdom existed as a State before it could form the Tribunal in the first place.
The United States relies on what the Tribunal stated in its Award that “in the absence of the United States of America [as a party], the Tribunal can neither decide that Hawaii is not part of the USA, nor proceed on the assumption that it is not.” What the United States leaves out is that it was the Hawaiian Kingdom that requested the Tribunal to declare that the Hawaiian Kingdom exists as a State. The request was made because the 2000 Annual Report acknowledging the Hawaiian Kingdom’s existence as a State in accordance with Article 47 did not come out yet.
The Hawaiian Kingdom also knew that even if the Tribunal did pronounce the Hawaiian Kingdom’s existence as a State without the participation of the United States in the proceedings it would only apply and be binding between Larsen and the Hawaiian Kingdom. As stated under Article 59 of the Statute of the International Court of Justice (ICJ), decisions of the ICJ have “no binding force except between the parties and in respect of that particular case.” And as stated by ICJ Judge Thomas Buergenthal before the membership of the American Society of International law in 2009:
“It is clear, of course, that the doctrine of stare decisis is not part of international law. For states not parties to a case, judgments of the ICJ and of some other international courts are formally not lawmaking in character in the sense in which decisions of Common Law courts are binding precedents within their respective jurisdictions.”
The existence of the Hawaiian Kingdom as a State is a question of fact and not a question of law to be decided by an international court because independent States are co-equal to each other and cannot be subjected to an international court unless it consents to its jurisdiction to preside over the dispute. To allow an international court to determine whether a State exists undermines the sovereignty of the State in the first place. Furthermore, to give consent to an international court the party to the case has to be a State in the first place. The United States is trying to argue the significance of an egg without acknowledging the chicken that laid the egg by arguing the egg and the chicken are the same thing.
When the United Nations was considering an Advisory Opinion by the ICJ on the status of Palestine in 1948, Israeli Foreign Minister Eban argued that the “existence of a State is a question of fact and not of law.” Professor Oppenheim also stated, “The formation of a new State is…a matter of fact, and not law.” The Hawaiian Kingdom is not a new State but rather an existing State since the nineteenth century and the United States has not contested the facts that show this.
Because the United States Motion to Dismiss was filed after the Hawaiian Kingdom’s Motion for Judicial Notice of Civil Law that explains the actions taken by the PCA in acknowledging the existence of Hawaiian Statehood, the judge will have to make that determination first. When the Court has transformed itself into an Article II Occupation Court it can then take up the Motions to Dismiss filed by the United States and the Swedish Consul, and also the Statement of Interest by the United States because it would have jurisdiction to address the arguments. But then again, when the Court transforms into an Article II Occupation Court, the Motions to Dismiss and the Statement of Interest are moot and fall to the ground.
Right now it doesn’t have jurisdiction because it is not within the territory of the United States but rather sits within the territory of the Hawaiian Kingdom, being an occupied State. The United States at no time in these proceedings presented any counter evidence, such as a treaty, that the Hawaiian Islands have been ceded to the United States. They solely rely on Congressional law and not international law.
The United States has backed itself into a corner that it cannot get out of and appears to be relying on the Court to try to get it out of a predicament of its own making since 1893. Based on the evidence before this Court and the involvement of 30 other countries that have Consulates in the Hawaiian Kingdom in the case, and the authors of the Amicus Brief, which are the International Association of Democratic Lawyers, the National Lawyers Guild, and the Water Protectors Legal Collective, all of whom are organizations of lawyers and jurists at both the international and national levels, the Court is bound to follow the rule of law and grant the Hawaiian Kingdom’s Motion for Judicial Notice. The United States has given no credible reason for the Court to not take judicial notice, which would lead to the transformation of the Court from an Article III Court to an Article II Occupation Court.