International Criminal Court Press Release March 17, 2023
Today, 17 March 2023, Pre-Trial Chamber II of the International Criminal Court (“ICC” or “the Court”) issued warrants of arrest for two individuals in the context of the situation in Ukraine: Mr Vladimir Vladimirovich Putin and Ms Maria Alekseyevna Lvova-Belova.
Mr Vladimir Vladimirovich Putin, born on 7 October 1952, President of the Russian Federation, is allegedly responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute). The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022. There are reasonable grounds to believe that Mr Putin bears individual criminal responsibility for the aforementioned crimes, (i) for having committed the acts directly, jointly with others and/or through others (article 25(3)(a) of the Rome Statute), and (ii) for his failure to exercise control properly over civilian and military subordinates who committed the acts, or allowed for their commission, and who were under his effective authority and control, pursuant to superior responsibility (article 28(b) of the Rome Statute).
Ms Maria Alekseyevna Lvova-Belova, born on 25 October 1984, Commissioner for Children’s Rights in the Office of the President of the Russian Federation, is allegedly responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute). The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022. There are reasonable grounds to believe that Ms Lvova-Belova bears individual criminal responsibility for the aforementioned crimes, for having committed the acts directly, jointly with others and/or through others (article 25(3)(a) of the Rome Statute).
Pre-Trial Chamber II considered, based on the Prosecution’s applications of 22 February 2023, that there are reasonable grounds to believe that each suspect bears responsibility for the war crime of unlawful deportation of population and that of unlawful transfer of population from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukrainian children.
The Chamber considered that the warrants are secret in order to protect victims and witnesses and also to safeguard the investigation. Nevertheless, mindful that the conduct addressed in the present situation is allegedly ongoing, and that the public awareness of the warrants may contribute to the prevention of the further commission of crimes, the Chamber considered that it is in the interests of justice to authorise the Registry to publicly disclose the existence of the warrants, the name of the suspects, the crimes for which the warrants are issued, and the modes of liability as established by the Chamber.
The abovementioned warrants of arrests were issued pursuant to the applications submitted by the Prosecution on 22 February 2023.
Irmgard Furchner sits in the courtroom at the beginning of the trial day in Itzehoe, Germany, Tuesday, Nov. 9, 2021. Christian Charisius/AP
BERLIN (AP) — A German court on Tuesday convicted a 97-year-old woman of being an accessory to more than 10,000 murders for her role as a secretary to the SS commander of the Nazis’ Stutthof concentration camp during World War II.
Irmgard Furchner was accused of being part of the apparatus that helped the camp near Danzig, now the Polish city of Gdansk, function. The Itzehoe state court in northern Germany gave her a two-year suspended sentence for being an accessory to murder in 10,505 cases and an accessory to attempted murder in five cases.
The court said judges were convinced that Furchner “knew and, through her work as a stenographer in the commandant’s office of the Stutthof concentration camp from June 1, 1943, to April 1, 1945, deliberately supported the fact that 10,505 prisoners were cruelly killed by gassings, by hostile conditions in the camp,” by transportation to the Auschwitz death camp and by being sent on death marches at the end of the war.
“The promotion of these acts by the accused took place through the completion of paperwork” in the camp commander’s office, a court statement said. “This activity was necessary for the organization of the camp and the execution of the cruel, systematic acts of killing.”
The verdict and sentence were in line with prosecutors’ demands. Defense lawyers had asked for their client to be acquitted, arguing that the evidence hadn’t shown beyond doubt that Furchner knew about the systematic killings at the camp, meaning there was no proof of intent as required for criminal liability.
In her closing statement, Furchner said she was sorry for what had happened and regretted that she had been at Stutthof at the time.
Furchner appeared to follow the verdict attentively but didn’t show any obvious emotion. It wasn’t immediately clear whether she would appeal, though lawyer Wolf Molkentin said the defense team thinks the case presents “insurmountable doubts” as to her guilt.
But presiding Judge Dominik Gross said it was “simply beyond all imagination” that Furchner didn’t notice the killings at Stutthof, German news agency dpa reported. He said she could see from her office the collection point where new prisoners had to wait after arrival, and the crematorium was in constant use in the fall of 1944, with smoke spreading across the camp.
Furchner was tried in juvenile court because she was 18 and 19 at the time of the alleged crimes and the court couldn’t establish beyond a doubt her “maturity of mind” at the time of the alleged offenses. Gross nonetheless noted Tuesday that she could have resigned from her position at any time.
Furchner failed to appear for the start of her trial in September 2021, but police later picked her up and she was placed in detention for several days.
Efraim Zuroff, the top Nazi hunter at the Simon Wiesenthal Center, said that “today’s verdict is the best that could be achieved, given the fact that she was tried in a juvenile court.”
“In view of Furchner’s recent statement to the court that she ‘regretted everything,’ we were concerned that the court might accept her defense attorney’s plea for an acquittal,” Zuroff said in a statement. “Yet given her claim that she had no knowledge of the murders being committed in the camp, her regret was far from convincing.”
U.N. Secretary-General Antonio Guterres’ spokesperson, Stephane Dujarric, said of the verdict that “it shows that it’s never too late to ensure that there was some accountability for crimes committed of such horrific nature.”
Prosecutors in Itzehoe said during the proceedings that Furchner’s trial may be the last of its kind. However, a special federal prosecutors’ office in Ludwigsburg tasked with investigating Nazi-era war crimes says prosecutors in various parts of Germany have five more cases pending, dpa reported.
Charges of murder and accessory to murder aren’t subject to a statute of limitations.
Initially a collection point for Jews and non-Jewish Poles removed from Danzig, Stutthof was later used as a so-called “work education camp” where forced laborers, primarily Polish and Soviet citizens, were sent to serve sentences and often died.
From mid-1944, tens of thousands of Jews from ghettos in the Baltics and from Auschwitz filled the camp, along with thousands of Polish civilians swept up in the brutal Nazi suppression of the Warsaw uprising.
Others incarcerated there included political prisoners, accused criminals, people suspected of homosexual activity and Jehovah’s Witnesses. More than 60,000 people were killed at the camp.
To mention white supremacy in the Hawaiian Islands for some is a bit strange because it does not appear that white people are in control. Their control, however, was cemented after the United States illegally overthrew the government of the Hawaiian Kingdom on January 17, 1893. This control lasted until 1959, where former laborers in the sugar and pineapple plantations, after returning from the Second World War, seized political control and pushed for the Hawaiian Islands to be the 50th State of the American Union where the governor would now be an elected position.
The leadership of the insurgency, calling themselves the provisional government, were white, which included Sanford Dole, William O. Smith and Lorrin Thurston. These insurgents, while white by ethnicity, were Hawaiian subjects by nationality and not American citizens. From 1900 to 1959, the leadership of the so-called Territory of Hawai‘i was appointed by the President of the United States. There were only white governors during this period. As a State of Hawai‘i, the former plantation workers would control the voting bloc under American law.
As a minority of the population, the insurgents of 1893 aligned themselves with Americans to entice the United States to annex the Hawaiian Islands after the government was overthrown. By aligning themselves with American politics, they also aligned themselves with American culture—white supremacy. According to Tom Coffman in his book Nation Within—The History of the American Occupation of the Hawai‘i, the insurgents attended higher education in the United States and it is there that they learned what was not experienced in the Hawaiian Kingdom, which is the so-called supremacy of the white race.
Despite the insurgents’ propaganda of lies, their rhetoric, however, was fueled, at the time, by American politics of race relations and the superiority of the Aryan (Teutonic) race over all others. Coffman addresses this by asking what “had Lorrin Thurston learned at Columbia, and what had Sanford Dole learned from his journey up the Kennebec River?” He answered, “the missionary descendants—already so prepared to believe in the superiority of their knowledge and position—were being influenced by American culture and American public life to take over direct control of Hawai‘i.” Between 1840 and 1887, Coffman explains “a systemic theory of white supremacy had been developed that came to be described in the intellectual history of America as Social Darwinism. The keystone of Social Darwinism was the teaching of white supremacy.”
While their physical strength was miniscule in the Hawaiian Kingdom, their arrogance could not be underestimated. The officers of the Hawaiian Patriotic League, in a memorial to President Grover Cleveland dated December 27, 1893, succinctly explained:
Last January, a political crime was committed, not only against the legitimate Sovereign of the Hawaiian Kingdom, but also against the whole Hawaiian nation, a nation who, for the past sixty years, had enjoyed free and happy constitutional self-government. This was done by a coup de main of U.S. Minister Stevens, in collusion with a cabal of conspirators, mainly faithless sons of missionaries and local politicians angered by continuous political defeat, who, as a revenge for being a hopeless minority in the country, resolved to “rule or ruin” through foreign help.
After Cleveland failed to restore Queen Lili‘uokalani under an executive agreement of December 18, 1893, the insurgents became emboldened. Prior to changing the name of the insurgency from the provisional government to the Republic of Hawai‘i in 1894, this minority of people needed to stay in control until a new president entered office after President Cleveland. That President was William McKinley who was open to annexing the Hawaiian Islands.
Professor John Burgess, a political scientist at Columbia University in 1893, was an academic who openly subscribed to white superiority through “Teutonic supremacy in the art of government.” According to Burgess, Teutonic governance was exemplified by “northern Europe and the United States,” but the Hawaiian Kingdom government, led by aboriginal Hawaiians, was not included in this theory because the Polynesian race was not Teutonic. The insurgents, although being Hawaiian subjects and resident aliens, were representative of the so-called Teutonic race. According to Castle, Burgess firmly believed that the “exercise of political right was contingent upon innate political intelligence, and of this intelligence the Teutons were the only qualified judges.”
To the Hawaiian, Burgess’ belief of Teutonic political intelligence would be absurd because Hawai‘i’s constitutional monarchy predated that of Teutonic Prussia. As German political scientist Marquardt pointed out in 2009, “Hawai‘i as early as 1839, preceding even Prussia, transferred European constitutionalism, in the pattern of the constitutional monarchy, into the Austronesian-speaking world of Oceania.” Nevertheless, as facts were not the driving force, the situation was being driven by American racist rhetoric.
Knowing of Burgess’ agenda of promoting white, in particular, Teutonic—Aryan superiority in governance, Dole was in communication with Burgess a year after the overthrow of the Hawaiian government. He wanted to draft a constitution for the insurgency that would change its name from the provisional government to the so-called Republic of Hawai‘i on July 3, 1894. Concerned of the political power wielded by the aboriginal Hawaiian, which was the majority of the Hawaiian national population, the insurgents entertained Jim Crow laws from the American State of Mississippi. In a letter sent from Washington, D.C., on November 4, 1893, by W.D. Alexander, former Surveyor-General of the Hawaiian Kingdom, to Sanford Dole, he wrote, “I enclose extracts from the present Constitution of Mississippi, which is said to have the effect of disfranchising a majority of the negroes of that state.” The Republic of Hawai‘i was in name only. It was not, by definition, a true Republic where the affairs of government were open and transparent.
In his first letter, Dole was merely asking for clarity on a section of Burgess’ bookPolitical Science and Comparative Constitutional Law. Before Burgess responded, Dole was able to send a follow up letter that reveals his intent. In his second letter, Dole requests information from Burgess on his constitutional plan whereby “government can be kept out of the control of the irresponsible element.” He stated that there “are many natives and Portuguese who had had the vote hitherto, who are comparatively ignorant of the principles of government, and whose vote from its numerical strength as well as from the ignorance referred to will be a menace to good government.” Burgess, in his response to Dole, was aware that the so-called Teutonic population in Hawai‘i was a very small minority at 5,000, which he said comprised of “Americans, English, Germans and Scandinavians” out of “a population of nearly 100,000.” After offering suggestions in the organizing of government, he ends his letter by recommending that “only Teutons [be appointed] to military office.”
When Coffman mentions the Dole-Burgess letters, he implies that the Hawaiian Kingdom did not have the same race relations as the United States. According to Dominguez, there was “very little overlap with Anglo-American” race relations. She found that there were no “institutional practices [that] promoted social, reproductive, or civic exclusivity on anything resembling racial terms before the American period.” In comparing the two countries she stated that unlike “the extensive differentiating and disempowering laws put in place throughout the nineteenth century in numerous parts of the U.S. mainland, no parallels—customary or legislated—seem to have existed in the [Hawaiian Kingdom].” Dominguez admits that with “all the recent, welcomed publishing flurry on the social construction of whiteness and blackness and the sociohistorical shaping of racial categories…, there are usually at best only hints of the possible—but very real—unthinkability of ‘race.’”
That very real “unthinkability of race” was the Hawaiian Kingdom. Kauai explains that the “multi-ethnic dimensions of the Hawaiian citizenry coupled by the strong voice and participation of the aboriginal population in government played a prominent role in constraining racial hierarchy and the emergence of a legal system that promoted white supremacy.”
After unilaterally annexing the Hawaiian Islands by enacting an American law in the Congress called a joint resolution in 1898, and not by a treaty of cession, the denationalization through Americanization was firmly planted in the educational system throughout the Hawaiian Islands. To do this, the educational system established by the Hawaiian Kingdom would be weaponized. Thus began the brainwashing of the school children that obliterated the national consciousness of their country, the Hawaiian Kingdom, and imposed the English language over the Hawaiian language.
In 1919, the Allied Powers of the First World War concluded that “attempts to denationalize the inhabitants of occupied territory” is a war crime. In their report, the Allied Powers charged that Bulgaria imposed their national characteristics on the Serbian population; banned the Serbian language; people were beaten for saying “Good morning” in Serbian; and the Serbian population forced to be present at Bulgarian national ceremonies.
The United Nations War Crimes Commission established after the Second World War to prosecute war criminals stated:
Attempts of this nature were recognized as a war crime in view of the German policy in territories annexed by Germany in 1914”
At that time, as during the war of 1939-1945, inhabitants of an occupied territory were subjected to measures intended to deprive them of their national characteristics and to make the land and population affected a German province
Since 1898, the United States did exactly what Bulgaria and Germany did during the First and Second World Wars. Where the military occupations of the First and Second World Wars would only last 4 to 6 years, the policy of denationalization through Americanizatoin would last over a century unfettered. Within three generations, the national consciousness of the Hawaiian Kingdom was obliterated.
Under the ownership of the infamous insurgent Lorrin Thurston, the Pacific Commercial Advertiser newspaper served as the insurgents’ propaganda machine. In 1904, Walter G. Smith, an American from San Francisco, became its editor in chief. In the September 8, 1905, edition, he summed up the effect and purpose of weaponizing the educational system under the heading “The American Way.”
It would have been proper yesterday in the Advertiser’s discussion of schools to admit the success which the High School has had in making itself acceptable to white parents. By gradually raising the standard of knowledge of English the High School has so far changed its color that, during the past year seventy-three per cent. were Caucasians. It is not so many years ago that more than seventy-three per cent. were non-Caucasians. At the present rate of progress it will not be long before the High School will have its student body as thoroughly Americanized in blood as it long has been in instruction.
The idea of having mixed schools were the mixture is of various social and political conditions is wholly American; but not so mixed schools where the American youth is submerged by the youth of alien races. On the mainland the Polacks, the Russian Jews, the Huns and the negroes are, as far as practicable, kept in schools of their own, with the teaching in English; and only where the alien breeds are few, as in the country, are they permitted to mingle with white pupils. In the South, where Americans of the purest descent live, there are no mixed schools for whites and negroes; and wherever color or race is an issue of moment, the American way is defined through segregation. Only a few fanatics or vote-hunters care to lower the standard of the white child for the sake of raising that of the black or yellow child.
One great and potent duty of our higher schools, public and private, is to conserve the domination here of Anglo-Saxon ideas and institutions; and this means control by white men. We have no faith in any attempt to make Americans of Asiatics. There are too many obstacles of temperament and even of patriotism in the way. The main thing is to see that our white children when they grow up, are not to be differentiated from the typical Americans of the mainland, having the same standards, the same ideals and the same objects, none of them tempered by the creeds or customs of decaying or undeveloped or pagan races.
From a country, whose literacy rate was second to Scotland and New England, aboriginal Hawaiian school children were forced to enter the labor force after receiving an eighth grade education. If you were white, you were allowed to attend High School. In an article published by New York’s Harper’s Weekly magazine in 1907, the reporter, William Inglis, visited three schools that were established during the Kingdom – Ka‘iulani and Ka‘ahumanu public schools that went to the eighth grade, and Honolulu High School. At Kai‘iulani, he reported:
Out upon the lawn marched the children, two by two, just as precise and orderly as you can find them at home. With the ease that comes of long practice the classes marched and counter -marched until all were drawn up in a compact array facing a large American flag that was dancing in the northeast trade-wind forty feet above their heads. Surely this was the most curious, most diverse regiment ever drawn up under that banner – tiny Hawaiians, Americans, Britons, Germans, Portuguese, Scandinavians, Japanese, Chinese, Porto-Ricans, and Heaven knows what else.
“Attention!” Mrs. Fraser commanded.
The little regiment stood fast, arms at sides, shoulders back, chests out, heads up, and every eye fixed upon the red, white, and blue emblem that waved protectingly over them.
“Salute!” was the principal’s next command.
Every right hand was raised, forefinger extended, and the six hundred and fourteen fresh, childish voices chanted as one voice:
“We give our head and our hearts to God and our Country! One Country! One Language! One Flag!”
Harper’s Weekly, “Hawaii’s Lesson to Headstrong California: How the Island territory has resolved the problem of dealing with its four thousand Japanese Public-School children,” Feb. 16, 1907.
At Honolulu High School, before the name was changed to President William McKinley High School in 1907 after the story was published, the reporter stated:
Professor M.M. Scott, the principal of the high school, was kind enough to call all the pupils, who were not taking examinations, out on the front steps of the building, where the visitor could inspect them in the sunshine. The change in the color scheme from that of the schools below was astounding. Below were all the hues of the human spectrum, with brown and yellow predominating; here the tone was clearly white.
Like many who are unaware of the legal and political history of the Hawaiian Kingdom, many are unaware of the legal and political history of the State of Texas. While there are parallels to the Crimean and the Hawaiian situation, there are also important distinctions. Under international law, annexation is a unilateral act by an independent State, and a treaty of cession is a bilateral act between independent States. As a unilateral act, annexation is illegal under international law.
The Republic of Texas was established during the Mexican Revolution but it doesn’t mean the revolution was successful and that the Republic became an independent State. The revolution began on October 2, 1835, that included other provinces rebelling against the regime of President Antonio López de Santa Anna. The Republic of Texas was comprised of United States citizens and Tejanos (Hispanic Texans) who declared their independence on March 2, 1836. Four days later was the famed Battle of the Alamo. Although the Republic of Texas declared their independence their act was treasonous under Mexican law. It was still a part of Mexican territory, and the Republic was fighting Mexican troops through the 1840s. There was no treaty of peace whereby Mexico acknowledged the Republic of Texas as an independent State, and, therefore the revolution continued.
This was a different situation for the United States and when the thirteen colonies declared their independence on July 4, 1776. This act was a treasonous act under British law that triggered the American revolution. It did not transform the thirteen colonies into thirteen independent States. Like the Mexican revolution, battles were fought for seven years until there was a treaty of peace entered into between representatives of King George III and the representatives of the thirteen colonies calling themselves the United States under the Articles of Confederation. The treaty of peace was called the Treaty of Paris and it was signed on September 3, 1783. The treaty specifically acknowledged the former thirteen British colonies as independent States and Article 2 provided the boundaries of the new independent States. Article 1 stated:
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; that he treats with them as such, and for himself his Heirs & Successors, relinquishes all claims to the Government, Propriety, and Territorial Rights of the same and every Part thereof.
Article 2 of the Treaty of Paris regarding the boundaries states:
And that all Disputes which might arise in future on the subject of the Boundaries of the said United States may be prevented, it is hereby agreed and declared, that the following are and shall be their Boundaries, viz.; from the Northwest Angle of Nova Scotia, viz., that Angle which is formed by a Line drawn due North from the Source of St. Croix River to the Highlands; along the said Highlands which divide those Rivers that empty themselves into the river St. Lawrence, from those which fall into the Atlantic Ocean, to the northwesternmost Head of Connecticut River; Thence down along the middle of that River to the forty-fifth Degree of North Latitude; From thence by a Line due West on said Latitude until it strikes the River Iroquois or Cataraquy; Thence along the middle of said River into Lake Ontario; through the Middle of said Lake until it strikes the Communication by Water between that Lake & Lake Erie; Thence along the middle of said Communication into Lake Erie, through the middle of said Lake until it arrives at the Water Communication between that lake & Lake Huron; Thence along the middle of said Water Communication into the Lake Huron, thence through the middle of said Lake to the Water Communication between that Lake and Lake Superior; thence through Lake Superior Northward of the Isles Royal & Phelipeaux to the Long Lake; Thence through the middle of said Long Lake and the Water Communication between it & the Lake of the Woods, to the said Lake of the Woods; Thence through the said Lake to the most Northwestern Point thereof, and from thence on a due West Course to the river Mississippi; Thence by a Line to be drawn along the Middle of the said river Mississippi until it shall intersect the Northernmost Part of the thirty-first Degree of North Latitude, South, by a Line to be drawn due East from the Determination of the Line last mentioned in the Latitude of thirty-one Degrees of the Equator to the middle of the River Apalachicola or Catahouche; Thence along the middle thereof to its junction with the Flint River; Thence straight to the Head of Saint Mary’s River, and thence down along the middle of Saint Mary’s River to the Atlantic Ocean. East, by a Line to be drawn along the Middle of the river Saint Croix, from its Mouth in the Bay of Fundy to its Source, and from its Source directly North to the aforesaid Highlands, which divide the Rivers that fall into the Atlantic Ocean from those which fall into the river Saint Lawrence; comprehending all Islands within twenty Leagues of any Part of the Shores of the United States, and lying between Lines to be drawn due East from the Points where the aforesaid Boundaries between Nova Scotia on the one Part and East Florida on the other shall, respectively, touch the Bay of Fundy and the Atlantic Ocean, excepting such Islands as now are or heretofore have been within the limits of the said Province of Nova Scotia.
Instead of a treaty whereby Mexico explicitly recognized the Republic of Texas as an independent State by a successful revolution and provided the boundaries of the new State, the Republic sought recognition from foreign States to include the United States in an attempt to circumvent the sovereign rights of Mexico and its territorial integrity. In March of 1837, the United States recognized the Republic of Texas but failed to annex the Republic by a treaty of cession. In 1840, Great Britain entered into a treaty with the Republic for trade purposes but did not recognize it as an independent State because it was still Mexican territory.
On March 1, 1845, the United States Congress enacted a Joint Resolution for annexing Texas to the United States. It stated that “Congress doth consent that the territory properly included within and rightfully belonging to the Republic of Texas may be erected into a new State, to be called the State of Texas, with a republican form of government, to be adopted by the people of said Republic, by deputies in convention assembled, with the consent of the existing government, in order that the same may be admitted as of the States of this Union.”
At issue, and was always the issue, were the boundaries of the Republic of Texas. A treaty of peace would have settled the boundaries, like the 1783 Treaty of Paris, but without a treaty the Republic of Texas had no formal boundaries. This was acknowledged in the joint resolution that stated “Said State to be formed, subject to the adjustment by this Government of all questions of boundary that may arise with other Governments.” That other government was Mexico.
This unilateral act, under international law, was the United States intervention in the internal affairs of Mexico, which is violation of international law, and triggered the Mexican-American War from 1846 to 1848. In the 1848 Peace Treaty of Guadalupe Hidalgo that ended the war, the new border between the United States and Mexico began from the Gulf of Mexico along the Rio Grande river, which is the southern border of the State of Texas, then by a surveyed boundary line that runs along the southern borders of what are now States of New Mexico, Arizona and California. Article V of the 1848 Treaty of Guadalupe Hidalgo states:
The boundary line between the two Republics shall commence in the Gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande, otherwise called Rio Bravo del Norte, or Opposite the mouth of its deepest branch, if it should have more than one branch emptying directly into the sea; from thence up the middle of that river, following the deepest channel, where it has more than one, to the point where it strikes the southern boundary of New Mexico; thence, westwardly, along the whole southern boundary of New Mexico (which runs north of the town called Paso) to its western termination; thence, northward, along the western line of New Mexico, until it intersects the first branch of the river Gila; (or if it should not intersect any branch of that river, then to the point on the said line nearest to such branch, and thence in a direct line to the same); thence down the middle of the said branch and of the said river, until it empties into the Rio Colorado; thence across the Rio Colorado, following the division line between Upper and Lower California, to the Pacific Ocean.
If Texas was annexed in 1845, then the boundary would not have begun from the Gulf of Mexico, but rather from the surveyed boundary line that would have begun from the mid-southern border of what is now the State of New Mexico, which is adjacent to the city of El Paso, Texas. From El Paso, the Rio Grande river goes north into the State of New Mexico. Texas had no territorial boundaries until Mexico ceded its territory north of the Rio Grande in 1848 and not in 1845.
The United States tends to view things retroactively. As an example, although the United States achieved its recognition from Great Britain in 1783, its history books say it achieved independence in 1776 when it declared it. Likewise, instead of the history books stating that Texas territory was acquired in 1848, it says Texas was annexed in 1845. Texas was never annexed in 1845 but rather acquired from Mexico in 1848.
In 1988, the Department of Justice’s Office of Legal Counsel (OLC) published a legal opinion regarding the annexation of Hawai‘i. The OLC’s memorandum opinion was 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 miles. The OLC concluded 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.” As Justice Marshall stated, “[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations,” and not the Congress.
The OLC also stated, “we doubt that Congress has constitutional authority to assert either sovereignty over an extended territorial sea or jurisdiction over it under international law on behalf of the United States.” The OLC then concluded that it is “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.”
That territorial sea referred to by the OLC was to be extended from three to twelve miles under the 1982 United Nations Law of the Sea Convention. In other words, the Congress could not extend the territorial sea an additional nine miles by statute because its authority was limited up to the three-mile limit. Furthermore, the United States Supreme Court, in The Apollon, concluded that the “laws of no nation can justly extend beyond its own territories.”
Arriving at this conclusion, the OLC cited constitutional scholar Professor Willoughby, “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.” Professor Willoughby also stated, “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.”
Like Crimea there is no treaty of cession whereby Ukraine ceded Crimea to Russia with its boundaries, and like Hawai‘i there is no treaty of cession whereby the Hawaiian Kingdom ceded the Hawaiian Islands to the United States with its boundaries. The question is who is the independent State with its rights under international law, and not an entity that has yet to achieve independence under international law.
