Monthly Archives: October 2023

Separating Politics from Law and the Termination of the Pearl Harbor Convention

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Many people confuse politics with law. Both terms are different, but they do work together in the governance of an independent State. According to the 6th edition of Black’s Law Dictionary, politics is the “science of government; the art or practice of administering public affairs,” and the term political pertains to the “exercise of the functions vested in those charged with the conduct of government.” Law on the other hand, according to Black’s Law, “is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force,” and “must be obeyed and followed” because it “is a solemn expression of the will of the supreme power of the State.”

From politics stem policies, which, according to Black’s Law, are “the general principles by which a government is guided in its management of public affairs.” The South African Community Organisers Toolbox explains that a “policy outlines what a government ministry hopes to achieve and the methods and principles it will use to achieve them. It states the goals of the ministry. A policy document is not a law but it will often identify new laws needed to achieve its goals….Laws set out standards, procedures and principles that must be followed. If a law is not followed, those responsible for breaking them can be prosecuted in court.”

In other words, laws provide the framework for politics and policies to work and not the other way around. For independent States, there are two types of laws that frame governance at the international level and at the national level. There is public international law, which, according to the American Law Institute, is “the law of the international community of states,” that consists of “specific norms and standards, and largely in practice, international law functions between states, as represented by their governments.” International law is comprised of customary law, treaties, certain principles of law found in municipal laws of States that are universal, and the writings of scholars on certain topics.

The other type of law applies within the boundaries of the State called municipal laws. These laws are comprised of a written or unwritten constitution, statutes enacted by a State’s legislature, and decisions made by a State’s highest court if there is no statute covering a particular topic. The Hawaiian Kingdom is a common law country similar in function to the United Kingdom and its municipal laws stem from the 1864 Constitution, as amended, statutes enacted by the Legislative Assembly, and the decisions made by the Supreme Court. Under the law of occupation, laws can be proclaimed by the government of the occupied State while the legislature is out of session as a result of the occupation whether as a government in exile or in situ.

When the Hawaiian government was restored in 1997 by a Regency in situ under Hawaiian constitutional law and the doctrine of necessity, its policy was laid out in a strategic plan of three phases: phase 1—verification of the Hawaiian Kingdom as an independent State and subject of international law; phase 2—exposure of the Hawaiian Kingdom as an independent State; and phase 3—restoring the Hawaiian Kingdom to its former status before the American occupation began. The strategic plan lays out the policy of the Council of Regency that outlines what it “hopes to achieve and the methods and principles it will use to achieve them.” The Council of Regency’s primary function is to protect the population of the Hawaiian Kingdom and to ensure that the United States and the State of Hawai‘i comply with the law of occupation in order to eventually bring the occupation to an end.

Within each of the three phases there are laws that frame the approach of the Council. Phase 1 was achieved by treaty law at the Permanent Court of Arbitration (PCA) in Larsen v. Hawaiian Kingdom. Before the PCA could establish an arbitral tribunal to resolve the dispute between Larsen and the Hawaiian Kingdom, it first needed to have institutional jurisdiction. In the treaty that formed the PCA (1907 Convention), Article 47 states, “The jurisdiction of the Permanent Court may, within the conditions laid down in the regulations, be extended to disputes between non-Contracting Powers or between Contracting Powers and non-Contracting Powers, if the parties are agreed on recourse to this tribunal.” The term Powers refers to independent States. The PCA concluded that the Hawaiian Kingdom is a “non-Contracting Power” to the treaty. The PCA received the notice of arbitration on November 8, 1999, and after concluding it had institutional jurisdiction it established the arbitral tribunal on June 9, 2000. These proceedings came to an end when the Award was issued by the arbitral tribunal on February 5, 2001.

The action taken by the PCA was not political but rather legal. In other words, the PCA did not have any discretion or a choice as to whether to accept or not accept the dispute under its jurisdiction. It was a matter of treaty law. The continued existence of the Hawaiian Kingdom as an independent State, according to the civil law system of Europe, is a “legal fact” that led to the “legal act” of the PCA to accept the dispute under article 47 of the 1907 Convention.

Phase 2 is being achieved through both international law and the municipal laws of the Hawaiian Kingdom. As Professor Federico Lenzerini pointed out in his legal opinion, “the Council of Regency possesses the constitutional authority to temporarily exercise the Royal powers of the Hawaiian Kingdom,” and that it “has the authority to represent the Hawaiian Kingdom as a State, which has been under a belligerent occupation by the United States of America since 17 January 1893, both at the domestic and international level.”

The proclamations made by the Council of Regency is its exercise of legislative authority under Hawaiian municipal laws, which is allowable under international law and the law of occupation. And its most recent proclamation of October 20, 2023, pronouncing the termination of the 1875 Commercial Reciprocity Treaty and its 1884 Supplemental Convention is its exercise of authority as a treaty partner with the United States under international law. The Hawaiian Kingdom, by its Council of Regency, being a treaty partner is an indisputable “legal fact,” and the notice of termination by virtue of Article 1 of the 1884 Supplemental Convention is a “legal act” with consequences under international law.

For the United States to disregard the notice of termination, as a matter of treaty law, requires it to publicly rebuke the existence of the Hawaiian Kingdom as a State and the Council of Regency as its government. This is an impossible task.

The reason why it is impossible is because during the arbitral proceedings at the PCA, the United States explicitly acknowledged the Hawaiian Kingdom as a non-Contracting State to the 1907 Convention and the Council of Regency as its government. In its case depository on its website, the PCA stated the Hawaiian Kingdom to be a “State,” and Lance Larsen a “Private entity.” The PCA described the case as:

Lance Paul Larsen, a resident of Hawaii, brought a claim against the Hawaiian Kingdom by its Council of Regency (“Hawaiian Kingdom”) on the grounds that the Government of the Hawaiian Kingdom is in continual violation of: (a) its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America, as well as the principles of international law laid down in the Vienna Convention on the Law of Treaties, 1969 and (b) the principles of international comity, for allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.

An important note in the above case description is that the PCA acknowledges that the Hawaiian Kingdom is a treaty partner with the United States in the 1849 Treaty of Friendship, Commerce and Navigation. This treaty has not been terminated by either the Hawaiian Kingdom or the United States. Article XVI states:

The present treaty shall be in force from the date of the exchange of the ratifications for the term of ten years, and further, until the end of twelve months after either of the contracting parties shall have given notice to the other of its intention to terminate the same, each of the said contracting parties reserving to itself the right of giving such notice at the end of the said term of ten years, or at any subsequent term.

Additional evidence is the executive agreement between the Council of Regency and the United States granting them access to the pleadings and records of the case, and the PCA Annual Reports from 2001-2011, which the PCA Administrative Council publishes. In Annex 2 of its 2001 Annual Report, it stated that the Larsen v. Hawaiian Kingdom arbitration was established “Pursuant to article 47 of the 1907 Convention (article 26 of the 1899 Convention).” All Contracting States that have diplomatic posts in the Netherlands sit as members of the Administrative Council that meet at the PCA, which includes the United States.

The termination of the Treaty and its Supplemental Convention is not subject to negotiation with the United States. Rather, the treaties themselves were the subject of negotiations and once both countries ratified the treaties it became international law. Termination that is provided by a treaty provision becomes self-executing according to the terms of the treaty. For termination of the treaty, the only requirement is for the Hawaiian Kingdom to provide notification of its intent to terminate to the United States, and once the United States receives the notice twelve months starts.

The United States, however, does have a provision to terminate a treaty that is first subject to negotiation and mutual agreement. This treaty provision concerns Guantanamo Bay, Cuba. In 1903, the newly independent State of Cuba leased Guantanamo Bay to the United States to build a Naval Station by entering into two international agreements. In the 1934 Treaty these agreements were acknowledged, and the terms of termination were explicitly stated in Article III, which states:

Until the two contracting parties agree to the modification or abrogation of the stipulations of the agreement in regard to the lease to the United States of America of lands in Cuba for coaling and naval stations signed by the President of the Republic of Cuba on February 16, 1903, and by the President of the United States of America on the 23d day of the same month and year, the stipulations of that agreement with regard to the naval station of Guantanamo shall continue in effect. The supplementary agreement in regard to naval or coaling stations signed between the two Governments on July 2, 1903, also shall continue in effect in the same form and on the same conditions with respect to the naval station at Guantanamo. So long as the United States of America shall not abandon the said naval station of Guantanamo or the two Governments shall not agree to a modification of its present limits, the station shall continue to have the territorial area that it now has, with the limits that it has on the date of the signature of the present Treaty.

What this treaty provision means is that there is no time limit for the United States’ lease of Guantanamo Bay, and the only way to terminate the lease agreement is that both the United States and Cuba must agree beforehand. The United States history has shown that it will not give its consent to terminate the lease of Guantanamo Bay Naval Station because it is in their self-interest to maintain the base despite any objection made by the Cuban government. This treaty provision has become known as Cuba’s “legal blackhole.” This is not the case for the United States naval station at Pearl Harbor.

U.S. Troops to Withdraw from the Hawaiian Islands by October 26, 2024

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In 1875, a Commercial Reciprocity Treaty was entered into between the Hawaiian Kingdom and the United States that was to last for seven years. In 1884, a Supplemental Convention extended the duration of the commercial treaty for another seven years with the express condition that the United States was granted exclusive access to Pearl Harbor. Article II of the Supplemental Convention states:

His Majesty the King of the Hawaiian Islands grants to the Government of the United States the exclusive right to enter the harbor of Pearl River, in the Island of Oahu, and to establish and maintain there a coaling and repair station for the use of vessels of the United States, and to that end the United States may improve the entrance to said harbor and do all other things needful to the purpose aforesaid.

The Supplemental Convention came into effect in 1887 after ratifications were exchanged and would last for seven years and further until “either of the High Contracting Parties shall give notice to the other of its wish to terminate the same,” where termination would commence twelve months after the notification is received by the other High Contracting Party. Although the Hawaiian government was unlawfully overthrown by the United States on January 17, 1893, the Hawaiian Kingdom as a State under international law continued to exist. In 1997, the Hawaiian Kingdom government was restored as a Regency serving in the absence of a Monarch.

On October 20, 2023, the Hawaiian Kingdom, by its Council of Regency, proclaimed the termination of the 1875 Commercial Reciprocity Treaty and its 1884 Supplemental Convention in accordance with Article I of the said Supplemental Convention. The following day, a notice of termination was sent, by courier United States Postal Service, to Secretary of State Antony J. Blinken. The notice of termination was received by the United States Department of State on 26 October 2023 at 5:47am ET, which consequently triggered the tolling of twelve months after which the Commercial Reciprocity Treaty and its Supplemental Convention would terminate.

The reasoning behind the notice of termination was that the United States in its unlawful and prolonged military occupation of the Hawaiian Kingdom since 17 January 1893 has exploited its use of Pearl Harbor by establishing military bases and facilities throughout the Hawaiian Islands under the Indo-Pacific Command of the U.S. Department of Defense in violation of the Article 1 of the 1907 Hague Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land. Although the Hawaiian Kingdom is not a Contracting State to the 1907 Hague Convention (V), it is mere codification of nineteenth century customary international law. On April 7, 1855, King Kamehameha IV proclaimed the foreign policy of the Kingdom:

My policy, as regards all foreign nations, being that of peace, impartiality and neutrality, in the spirit of the Proclamation by the late King, of the 16th May last, and of the Resolutions of the Privy Council of the 15th June and 17th July, I have given to the President of the United States, at his request, my solemn adhesion to the rule, and to the principles establishing the rights of neutrals during war, contained in the Convention between his Majesty the Emperor of all the Russias and the United States, concluded in Washington on the 22nd July last.

This policy of neutrality remained unchanged throughout the nineteenth century. Furthermore, the policy of neutrality by the Hawaiian Kingdom as a Neutral Power were inserted as treaty provisions in the Hawaiian-Swedish/Norwegian Treaty of 1852, the Hawaiian-Spanish Treaty of 1863, and the Hawaiian-German Treaty of 1879. In its treaty with Sweden/Norway, Article XV states, “His Majesty the King of Sweden and Norway engages to respect in time of war the neutral rights of the Hawaiian Kingdom, and to use his good offices with all other powers, having treaties with His Majesty the King of the Hawaiian Islands, to induce them to adopt the same policy towards the Hawaiian Kingdom.”

As a result of the termination of the treaty and its convention, all United States military forces in the Hawaiian Islands will be withdrawn in twelve months by 5:47am ET on October 26, 2024. On the withdrawal, the Council of Regency proclaimed:

And, We do require that when the United States has received this notice of termination, it shall, prior to the expiration of twelve months in accordance with Article I of the 1884 Supplemental Convention, remove all movable property at its military facilities throughout the Hawaiian Islands, including unexploded munitions, and fuel, with the exception of real property attached to the land or erected on it, including man-made objects, such as buildings, homes, structures, roads, sewers, and fences, to include on other properties that have been or are currently under its supervision and command.

Not all military forces in the Hawaiian Islands are affected by the notice of termination. There are two military forces present within the Hawaiian Kingdom today. That of the United States Federal government called Title 10 United States Code (“USC”) armed forces, and that of the State of Hawai‘i National Guard called Title 32 USC armed forces. Title 10 troops are purely American in origin while the Title 32 troops are Hawaiian in origin, and, therefore, remain in the Hawaiian Islands to be called by its original designation—the Royal Guard.

When the United States unilaterally annexed the Hawaiian Islands in violation of international law on 7 July 1898, it initiated the establishment of the United States Army Pacific, United States Marine Forces Pacific, United States Pacific Fleet, and the United States Pacific Air Forces. The United States Army Pacific was established in the Hawaiian Islands in 1898 during the Spanish-American War, headquartered at its first military base called Camp McKinley on the Island of O‘ahu, and later headquartered at Fort Shafter on the Island of O‘ahu in 1921. In 1908, the Congress allocated funds to establish a Naval Station at Pearl Harbor.

In April 1942, the United States military forces in the Hawaiian Islands were organized into two commands for the Army under United States Army Forces Pacific and for the Navy as Commander-in-Chief, Pacific Fleet, and Pacific Oceans Areas Commander-in-Chief. This command structure of the Army and Navy in the Hawaiian Islands during the Second World War was transformed into the United States Pacific Command on 1 January 1947, which is presently called the Indo-Pacific Command, whose headquarters is at Camp H.M. Smith on the Island of O‘ahu. In September 1947, the United States Air Force separated from the United States Army as a separate branch of the armed forces with its base headquartered at Hickam Air Force Base on the Island of O‘ahu, and later, in 2010, merged to become an element of Joint Base Pearl Harbor-Hickam with the Navy.

The Indo-Pacific Command has four component commands stationed in the territory of the Hawaiian Kingdom—United States Army Pacific, whose headquarters is at Fort Shafter on the Island of O‘ahu, United States Marine Forces Pacific, whose headquarters is at Camp H.M Smith on the Island of O‘ahu, United States Pacific Fleet, whose headquarters is at Naval Station Pearl Harbor on the Island of O‘ahu, and United States Pacific Air Forces, whose headquarters is at Hickam Air Force Base/Joint Base Pearl Harbor-Hickam on the Island of O‘ahu.

There is no legal basis for the presence of Title 10 USC military forces in the Hawaiian Islands by virtue of Congressional legislation because municipal laws have no extraterritorial effect. Since Congressional legislation is limited in operation to the territory of the United States, it cannot unilaterally establish military installations in the territory of a foreign State without the State’s consent through a treaty or convention. According to traditional international law, the concept of jurisdiction is linked to the State territory. As the Permanent Court of International Justice in the 1927 Lotus case stated:

[T]he first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exer­cise its power in any form in the territory of another State. In this sense jurisdic­tion is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention […] all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.

The presence of all Title 10 USC military forces throughout the Hawaiian Islands has a direct nexus to the 1884 Supplemental Convention that granted the United States exclusive access to Pearl Harbor. The 1884 Supplemental Convention was a valid treaty under international law up until the Hawaiian Kingdom’s notice of intention to terminate was received by the U.S. Department of State at 5:47am ET on 26 October 2023. As a consequence of the termination, all Title 10 USC military forces shall have to be withdrawn from the Hawaiian Islands no later than 5:47am ET on 26 October 2024. The military forces that remain is the Hawaiian Kingdom’s Royal Guard that is referred to today as the Hawai‘i Army and Air National Guard.

For a comprehensive report on the termination of the 1875 Commercial Reciprocity Treaty and its 1884 Supplemental Convention go to the Royal Commission of Inquiry’s Preliminary Report on this subject.

CLARIFICATION. The 1884 Supplemental Convention began a seven-year term as of 1887 when ratifications were exchanged in Washington, D.C. It would continue after the seven-year period until either the Hawaiian Kingdom or the United States gives notification of its intention to terminate the treaty. When notice is received by the other party a twelve-month period begins for termination. Article I specifically states:

The High Contracting Parties agree, that the time fixed for the duration of the said Convention, shall be definitely extended for a term of seven years from the date of the exchange of ratifications hereof, and further, until the expiration of twelve months after either of the High Contracting Parties shall give notice to the other of its wish to terminate the same, each of the High Contracting Parties being at liberty to give such notice to the other at the end of the said term of seven years or at any time thereafter.

In other words, the seven-year term was locked in, but it would continue in force if there was no notice of termination. A similar provision for termination of the 1849 Treaty of Friendship, Commerce and Navigation between the Hawaiian Kingdom and the United States was stated in Article XVI:

The present treaty shall be in force from the date of the exchange of the ratifications, for the term of ten years, and further, until the end of twelve months after either of the contracting parties shall have given notice to the other of its intention to terminate the same, each of the said contracting parties reserving to itself the right of giving such notice at the end of the said term of ten years, or at any subsequent term.

Only the 1875 Commercial Reciprocity Treaty and the 1884 Supplemental Convention have been terminated. All other treaties with the United States remain in full force and effect.

Repealing Hawaiian Citizenship Acquired by Birthright—Jus Soli

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Today, October 2, 2023, the Council of Regency announced by proclamation that the acquisition of Hawaiian citizenship by being native or natural born within the territory of the Hawaiian Kingdom—jus soli, also called citizenship by birthright, has been repealed. From the date of the proclamation, the only way to acquire Hawaiian citizenship is being born in the Hawaiian Islands or abroad—jus sanguinis where at least one of the parents is a Hawaiian subject, or through naturalization by application to the Minister of the Interior. Citizenship by naturalization will not be considered until the United States occupation has come to an end. International law prohibits the acquisition of citizenship of the occupied State by birthright during the occupation because the law of occupation protects the status quo ante of the occupied State.

The proclamation’s intent is to protect the status quo ante of the population as it existed prior to the United States invasion on January 16, 1893, and its subsequent occupation that occurred the following day that is now at 130 years. According to the 1890 Government census, American citizens residing in the Hawaiian Kingdom numbered a mere 1,928, which was less than 2% of the entire population at the time, but exploded to 918,639 in 2009. Other populations of foreigners were also allowed by the United States to unlawfully migrate to the Hawaiian Islands that contributed to the radical disruption of the status quo ante of the population in 1893. The law of occupation is supposed to maintain and protect the status quo ante of the Hawaiian Kingdom, its institutions, population, and its economy but the United States did not adhere to the law of occupation for 130 years, which led to the commission of war crimes.

There are currently over thirty countries that have restricted citizenship by birthright—jus soli. In the case of India, it was in response to unlawful migration from Bangladesh.