Under International Law, all Members of the United Nations recognize the Continuity of the Hawaiian Kingdom’s existence as a Independent State and the Council of Regency as its Government

The Royal Commission of Inquiry has just published its latest memorandum on why all 193 Member States of the United Nations recognizes the continuity of the Hawaiian Kingdom and the Council of Regency as its government.

It has been 24 years since the arbitral proceedings at the Permanent Court of Arbitration (“PCA”) were initiated on 8 November 1999 in Larsen v. Hawaiian Kingdom. Before the arbitral tribunal was established on 9 June 2000, the PCA Secretary General recognized the continued existence of the Hawaiian Kingdom as a non-Contracting State to the 1907 Hague Convention, I, for the Pacific Settlement of International Disputes (“PCA Convention”). The PCA Secretary General also recognized the Council of Regency as its government. The Council of Regency was not claiming to be a new State but rather it claimed the legal personality of the continued existence of the Hawaiian Kingdom since the nineteenth century.

One of the four sources of international law is customary international law, which is a general practice by an international actor and accompanied by opinio juris. Opinio juris takes place when acts or omissions by States occur following a belief that these States are obligated as a matter of law to take action or refrain from acting in a particular way. According to the International Court of Justice, for a rule of customary international law to exist, there needs to be “two conditions [that] must be fulfilled” where there is a “‘settled practice’ together with opinio juris,” where the practice is accepted as law by States. This acceptance can be achieved by the silence or omission of the concerned States regarding the practice. In the Nicaragua case, the International Court of Justice explained:

[F]or a new customary rule to be formed, not only must the acts concerned “amount to a settled practice,” but they must be accompanied by opinio juris sive neccessitatis. Either the States taking such action or other States in a position to react to it, must behave so that their conduct is evidence of a belief that the practice is rendered obligatory by the existence of a rule of law requiring it. The need for such belief […] the subjective element, is implicit in the very notion of opinio juris sive neccessitatis.

The relevant rule of customary international law, which is applicable to the Hawaiian Kingdom, is the presumption of continuity of the State despite the military overthrow of its government. Because international law provides for the presumption of the continuity of the State despite the overthrow of its government by another State, the burden of proof shifts as to what must be proven. According to Judge Crawford, there “is a presumption that the State continues to exist, with its rights and obligations […] despite a period in which there is no, or no effective, government,” and belligerent occupation “does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” Addressing the presumption of the German State’s continued existence despite the military overthrow of the Nazi government during the Second World War, Professor Brownlie explains:

Thus, after the defeat of Nazi Germany in the Second World War the four major Allied powers assumed supreme power in Germany. The legal competence of the German state [its independence and sovereignty] did not, however, disappear. What occurred is akin to legal representation or agency of necessity. The German state continued to exist, and, indeed, the legal basis of the occupation depended on its continued existence.

Therefore, “[i]f one were to speak about a presumption of continuity,” explains Professor Craven, “one would suppose that an obligation would lie upon the party opposing that continuity to establish the facts substantiating its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by reference to a valid demonstration of legal title, or sovereignty, on the part of the United States, absent of which the presumption remains.” Evidence of “a valid demonstration of legal title, or sovereignty, on the part of the United States” would be an international treaty, particularly a peace treaty, whereby the Hawaiian Kingdom would have ceded its territory and sovereignty to the United States. Examples of foreign States ceding sovereign territory to the United States by a peace treaty include the 1848 Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico and the 1898 Treaty of Peace between the United States of America and the Kingdom of Spain. There is no treaty of peace where the Hawaiian Kingdom ceded its sovereignty and territory to the United States.

This practice or action taken by the PCA Secretary General was uncontested by all 122 Contracting States to the PCA Convention. This serves as evidence of their acceptance of the continuity of Hawaiian Statehood. The acceptance by the 122 States of the PCA’s recognition of continuity, as opposed to discontinuity of the Hawaiian State, established a normative character of opinio juris supporting the existence of the rule of customary international law sanctioning the presumption of continuity of a State, despite the military overthrow of its government. As the International Court of Justice explains, the behavior of these States is such “that their conduct is evidence of a belief that the practice is rendered obligatory by the existence of a rule of law requiring it,” as regards the international legal rule of the presumption of State continuity despite the persistence of a status of military occupation. The significance of the Larsen case under international law cannot be underestimated.

Since the Larsen case, the Hawaiian Kingdom’s Council of Regency took deliberate and incremental steps, under international law, to assure that all Member States of the United Nations would recognize the Hawaiian Kingdom’s continued existence as an independent State despite the prolonged occupation by the United States. This memorandum looks at those steps that eventually got all 193 Members States of the United Nations to acknowledge, under international law, the continuity of the Hawaiian Kingdom as an independent State since the nineteenth century, and the Council of Regency as its government, being the successor to Queen Lili‘uokalani’s administration.

Polish Journal of Political Science Publishes Book Review of the Royal Commission of Inquiry’s eBook on Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom

Awareness of the American occupation of the Hawaiian Kingdom is spreading in academic circles throughout Europe. In 2022, the Polish Journal of Political Science published a book review by Dr. Anita Budziszewska of the Royal Commission on Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom.

Dr. Budziszewska is a faculty member of Political Science and International Studies at the University of Warsaw. In the years 2011-2020 she served as the coordinator for mobility, exchange and international cooperation at the IIR UW and at the WNPiSM UW. During the years 2016-2020 served as the Plenipotentiary of the Dean of the Faculty of Political Science and International Studies for international cooperation under the Erasmus+ program (European Union).

Dr. Budziszewska was member of the Polish mission to the United Nations during the 43rd session of the United Nations Human Rights Council in Geneva (43rd session of UN HRC). In 2020-2021 external expert of the project Polska360 organized/financed by the Kresy RP. Foundation and the Chancellery of the Prime Minister of Poland. She conducts classes on Elements of Diplomatic Protocol as part of the training organized by the Polish Olympic Committee and the Polish Corporation of Sports Managers. Member of the Organizing Committee of 8th Pan-European Congress of International Relations in Warsaw (2013) co-organized with the European International Studies Association.

Dr. Budziszewska completed scientific and professional internship, e.g. at the Polish Representation to the United Nations Office in Geneva. Study and training stays, among others, at the European Court of Human Rights in Strasbourg, the University of Zurich and the University of Oxford. International speeches, lectures and papers abroad, e.g. in Spain, Italy, Portugal, Greece, Finland, Croatia, Hungary and the UK. Member of the European Research Network on Philanthropy, International Studies Association and European International Studies Association.

Here follows her book review that was published in volume 8, issue 2 of the Polish Journal of Political Science.

The subject of review here is the multi-author publication Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom, edited by Dr. David Keanu Sai, Head of the Hawaiian Royal Commission of Inquiry, published in 2020. The book is divided into three parts, i.e. Part 1 Investigating war crimes and human rights violations committed in the Hawaiian Kingdom; Part 2 The prolonged occupation of the Hawaiian Kingdom; and Part 3 Hawaiian law, treaties with foreign states and international humanitarian law. This final part represents a collection of source documents in such fields as Hawaiian law, but also international-law treaties with foreign states (in fact 18 including the USA)—dating back to the 19th century. A selection of treaties from the sphere of international humanitarian law has also been made and included.

The essence of the publication nevertheless resides in its two first parts, in which the authors offer an in-depth treatment of the complicated long-time relationship between Hawaii and the United States. Nevertheless, the thesis pursued here overall is the straightforward one that Hawaii has been occupied illegally and incorporated into the United States unlawfully, with that occupation continu­ing to the present day and needing to be understood in such terms. The authors also pursue the dif­ficult thread of the story relating to war crimes.

The above main assumption of the book is emphasised from the very beginning of Part 1, which is preceded by the text of the Proclamation Establishing the Royal Commission of Inquiry, recalling that that Commission was established to “ensure a full and thorough investigation into the violations of international humanitarian law and human rights within the territorial jurisdiction of the Hawai­ian Kingdom.”

In fact, the main aim of the above institution as called into being has been to pursue any and all of­fences and violations in the spheres of humanitarian law, human rights and war crimes committed by the Americans in the course of their occupation of Hawaii—which is given to have begun on 17 January 1893.

Presented next is the genesis and history of the Commission’s activity described by its aforementioned Head—Dr. David Keanu Sai. He presents the Commission’s activity in detail, by reference to concrete examples; with this part going on to recreate the entire history of the Hawaiian-US relations, beginning with the first attempt at territorial annexation. This thread of the story is sup­plemented with examples and source texts relating to the recognition of the Hawaiian Kingdom by certain countries (e.g. the UK and France, and taken as evidence of international regard for the in­tegrity of statehood). Particularly noteworthy here is the author’s exceptionally scrupulous analysis of the history of Hawaii and its state sovereignty. No obvious flaws are to be found in the analysis presented.

It is then in the same tone that the author proceeds with an analysis relating to international law, so as to point to the aspects of Hawaii’s illegal occupation by the United States—including an un­precedentedly detailed analysis of the contents of documents, resolutions, mutual agreements and official political speeches, but also reference to other scientific research projects. This very interest­ing strand of the story is followed by Matthew Craven in Chapter 3 on the Continuity of the Hawaiian Kingdom as a State under International Law. Notwithstanding the standpoint on the legality of the occupation or annexation of Hawaii by the United States, the matter of the right to self-determination keeps springing up now and again.

Considerable attention is also paid to the multi-dimensional nature of the plebiscite organised in 1959 (with regard to Hawaii’s incorporation as a state into the United States of America), with the relative lack of transparency of organisation pointed out, along with various breaches and transgres­sions that may have taken place.

In turn, in Chapter 4—on War Crimes Related to the United States’ Belligerent Occupation of the Ha­waiian Kingdom—William Schabas makes attempts to verify the assertion, explaining the term war crimes and referring to the wording of the relevant definition that international law is seen to have generated. The main problem emerging from this concerns lack of up-to-date international provi­sions as regards the above definition. The reader’s attention is also drawn to the incomplete nature of the catalogue of actions or crimes that could have constituted war crimes (in line with the observa­tions of Lemkin).

While offering narration and background, this Chapter’s author actually eschews Hawaiian-US examples. Instead, he brings the discussion around to cases beyond Hawaii, and in so doing also invokes examples from case-law (e.g. of Criminal Courts and Tribunals). While this is a very interesting choice of approach, it would still have been interesting for the valuable introduction to the subject matter to be supplemented by concrete examples relating to Hawaii, and to the events occur­ring there during the period under study.

Chapter 5—on International Human Rights Law and Self-Determination of Peoples Related to the United States’ Occupation of the Hawaiian Kingdom—allows its author Federico Lenzerini to contribute hugely to the analysis of the subject matter, given his consideration of the human rights protection system and its development with a focus on the right to self-determination. The author separates those dimensions of the law in question that do not relate to the Hawaiian Kingdom, as well as those that may have application to the Hawaiian society. Indeed, the process ends with Ap­plicability of the Right to Self-Determination During the American Occupation—a chapter written with exceptional thoroughness, objectivity and synthesis. The author first tells the story on how the human rights protection system came to be formulated (by the 1948 Universal Declaration of Human Rights and the Covenants of 1996, but also by reference to other Conventions). Rightly signalled is the institutional dimension to the protection of human rights, notably the Human Rights Committee founded to protect the rights outlined in the Covenant on Civil and Political Rights. It is of course re­called that the US is not a party to the relevant Protocols, which is preventing US citizens from assert­ing the rights singled out in the 1966 Covenants. Again rightly, attention is also paid to the regional human rights mechanism provided for by the 1969 American Convention on Human Rights, which also lacks the United States as a party.

The focus here is naturally on the right to self-determination, which the author correctly terms the only officially recognised right of a collective nature (if one excludes the rights of tribal peoples). The further part of the chapter looks at the obligations of states when it comes to safeguarding their citizens’ fundamental human rights. The philosophical context underpinning the right to self-determination is considered next (with attention rightly paid first to liberty related aspects and the philosophical standpoints of Locke and Rousseau, along with the story of the formulation of this right’s ideological basis and reference to what is at times a lack of clarity regarding its shape and scope (not least in Hawaii’s case). What is therefore welcome is the wide-ranging commentary of­fered on the dimensions to the above rights that do relate to Hawaiian society as well as those that do not.

In summing up the substantive and conceptual content, it is worth pointing to the somewhat inter­disciplinary nature of the research encompassed. Somewhat simplifying things, this book can first be seen as an in-depth analysis of matters historical (with much space devoted to the roots of the relations between Hawaii and the United States, to the issue of this region’s occupation and the gen­esis of Hawaii’s incorporation into the USA). These aspects have all been discussed with exceptional thoroughness and striking scrupulousness, in line with quotations from many official documents and source texts. This is all pursued deliberately, given the authors’ presumed intention to illustrate the genesis of the whole context underpinning the Hawaiian-US relations, as well as the further context through which Hawaii’s loss of state sovereignty came about. This strand to the story gains excellent illustration thanks to Dr. Keanu Sai.

The second part is obviously international law related and it also has much space devoted to it by the authors. The publication’s core theses gain support in the analysis of many and varied international documents, be these either mutual agreements between Hawaii and the United States or international Conventions, bilateral agreements of other profiles, resolutions, instruments de­veloped under the aegis of the UN or those of a regional nature (though not only concerned with the Americas, as much space is devoted to European solutions, and European law on the protection of human rights in particular). There is also much reference to international case-law and juris­prudence in a broader sense, the aim being to indicate the precedents already arrived at, and to set these against the international situation in which Hawaii finds itself.

However, notwithstanding this publication’s title, the authors here do not seek to “force-feed” readers with their theses regarding Hawaii’s legal status. Rather, by reaching out to a wide range of sources in international law as well as from history, they provide sufficient space for independ­ent reflection and drawing of conclusions. In this regard, it would be interesting if few remarks were devoted to present-day relations between Hawaii and the rest of the USA, with a view to achieving a more-profound illustration of the state of this relationship. However, it might seem from the book’s overall context that this was done deliberately so that the foundations of this unique dispute gain proper presentation. All is then augmented further by Part 3—the collection of agreements and docu­ments considered to sustain the main assumptions of the publication under review. Were I to force myself to point out any failure of the book to meet expectations, I would choose the cultural dimen­sion. There is no way of avoiding an impression—only enhanced by cover-to-cover reading—that this publication is deeply rooted in the Hawaiians’ sense of cultural and historical identity. So it would have been interesting to see the cultural dimension addressed, including through a more in-depth analysis of social awareness. At the very least, I have in mind here Article 27 UDHR, traditionally regarded as the source of the right to culture and the right to participate in cultural life. To be added to that might be Article 15 of the International Covenant on Economic, Social and Cultural Rights, as well as Article 27 of the International Covenant on Civil and Political Rights. While (as Boutros Boutros-Ghali noted in 1970) the right in question initially meant access to high culture, there has since been a long process of change that has seen an anthropological dimension conferred upon both culture and the right thereto. A component under that right is the right to a cultural identity—which would seem to be the key space in the Hawaiian context. The UN and UNESCO have in fact been paying a great deal of attention to this matter, with the key relevant documents being the 2005 Conven­tion on the Protection and Promotion of the Diversity of Cultural Expressions that in general links these issues with the human rights dimension as well as the Recommendation on Participation by the People at Large in Cultural Life and their Contribution to It (1976).

So a deeply-rooted cultural-identity dimension would have offered an interesting complement to the publication’s research material, all the more so as it would presumably reveal the attempts to annihilate that culture (thus striking not merely at statehood, but at national integrity of iden­tity). An interesting approach would then have been to show in details whether and to what extent this is resisted by the USA (e.g. in regard to the upholding of symbols of material and non-material cultural heritage).

However, given the assumption the book is based on—i.e. the focus on state sovereignty (not the right of cultural minorities, but the right of a nation to self-determination), the above “omission” actually takes nothing away from the value of the research presented. However, the aspect of national identity—of which cultural and historical identity is a key component—may represent an impulse for further, more in-depth research.

I regard this publication as an exceptionally valuable one that systematises matters of the legal sta­tus of the Hawaiian Kingdom, taking up the key issues surrounding the often ignored topic of a dif­ficult historical context occurring between Hawaii and the United States. The issue at stake here has been regenerated synthetically, on multiple levels, with a penetrating analysis of the regulations and norms in international law applying to Hawaii – starting from potential occupied-territory status, and moving through to multi-dimensional issues relating to both war crimes and human rights. This is one of the few books – if not the only one – to describe its subject matter so comprehensively and completely. I therefore see this work as being of exceptional value and considerable scientific impor­tance. It may serve not only as an academic source, but also a professional source of knowledge for both practicing lawyers and historians dealing with the matter on hand. The ambition of those who sought to take up this difficult topic can only be commended.