The bedrock of international law is the sovereignty of an independent State. Black’s Law dictionary defines sovereignty as the “supreme, absolute, and uncontrollable power by which any independent state is governed.” For the purposes of international law, Wheaton explains:
Sovereignty is the supreme power by which any State is governed. This supreme power may be exercised either internally or externally. Internal sovereignty is that which is inherent in the people or any State, or vested in its ruler, by its municipal constitution or fundamental laws. This is the object of what has been called internal public law […], but which may be more properly be termed constitutional law. External sovereignty consists in the independence of one political society, in respect to all other political societies. It is by the exercise of this branch of sovereignty that the international relations of one political society are maintained, in peace and in war, with all other political societies. The law by which it is regulated has, therefore, been called external public law […], but may more properly be termed international law.
In the Island of Palmas arbitration, which was a dispute between the United States and the Netherlands, the arbitrator explained that “Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.” And in the S.S. Lotus case, which was a dispute between France and Turkey, the Permanent Court of International Justice stated:
Now 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 its territory except by virtue of a permissive rule derived from international custom or from a convention [treaty].
The permissive rule under international law that allows one State to exercise authority over the territory of another State is Article 43 of the 1907 Hague Regulations and Article 64 of the Fourth Geneva Convention, that mandates the occupant to establish a military government to provisionally administer the laws of the occupied State until there is a treaty of peace. For the past 131 years, there has been no permissive rule of international law that allows the United States to exercise any authority in the Hawaiian Kingdom, which makes the prolonged occupation illegal under international law.
As the arbitral tribunal, in Larsen v. Hawaiian Kingdom, noted in its award, “in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties.” The scope of Hawaiian sovereignty is sweeping. According to §6 of the Hawaiian Civil Code:
The laws are obligatory upon all persons, whether subjects of this kingdom, or citizens or subjects of any foreign State, while within the limits of this kingdom, except so far as exception is made by the laws of nations in respect to Ambassadors or others. The property of all such persons, while such property is within the territorial jurisdiction of this kingdom, is also subject to the laws.
Property within the territorial jurisdiction of the Hawaiian Kingdom includes both real estate and personal property. Hawaiian sovereignty over the population, whether Hawaiian subjects or citizens or subjects of any foreign State, is expressed in the Penal Code. Under Chapter VI—Treason, the statute, which is in line with international law, states:
1. Treason is hereby defined to be any plotting or attempt to dethrone or destroy the King, or the levying of war against the King’s government, or the adhering to the enemies thereof, giving them aid and comfort, the same being done by a person owing allegiance to this kingdom.
2. Allegiance is the obedience and fidelity due to the kingdom from those under its protection.
3. An alien, whether his native country be at war or at peace with this kingdom, owes allegiance to this kingdom during his residence therein, and during such residence, is capable of committing treason against this kingdom.
4. Ambassadors and other ministers of foreign states, and their alien secretaries, servants and members of their families, do not owe allegiance to this kingdom, though resident therein, and are not capable of committing treason against this kingdom.
When the Hawaiian Kingdom Government conditionally surrendered to the United States forces on January 17, 1893, the action taken did not transfer Hawaiian sovereignty but merely relinquished control of Hawaiian sovereignty because of the American invasion and occupation. According to Benvenisti:
The foundation upon which the entire law of occupation is based is the principle of inalienability of sovereignty through unilateral action of a foreign power, whether through the actual or the threatened use of force, or in any way unauthorized by the sovereign. Effective control by foreign military force can never bring about by itself and valid transfer of sovereignty. Because occupation does not transfer sovereignty over the territory to the occupying power, international law must regulate the inter-relationships between the occupying force, the ousted government, and the local inhabitants for the duration of the occupation. […] Because occupation does not amount to sovereignty, the occupation is also limited in time and the occupant has only temporary managerial powers, for the period until a peaceful solution is reached. During that limited period, the occupant administers the territory on behalf of the sovereign. Thus the occupant’s status is conceived to be that of a trustee.
The occupant’s ‘managerial powers’ is exercised by a military government over the territory of the occupied State that the occupant is in effective control. The military government would need to be in effective control of the territory in order to effectively enforce the laws of the occupied State. Without effective control there can be no enforcement of the laws.
The Hawaiian government’s surrender that transferred effective control over the territory of the Hawaiian Kingdom to the American military did not transfer Hawaiian sovereignty. U.S. Army FM 27-10 explicitly states, “Being an incident of war, military occupation confers upon the invading force the means of exercising control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty.”
The United States never possessed sovereignty over the Hawaiian Islands. It remained undisturbed for over a century, and in 1997 when the Hawaiian Kingdom government was restored as a Regency, Hawaiian sovereignty came to the forefront as the foundation for the existence of the Regency and the application of the law of occupation.
Restoration of Hawaiian sovereignty needs to be removed from the conversations because you cannot restore what was never taken. And restoring the Hawaiian Kingdom government also needs to be removed from the conversations because the government was already restored in 1997 as a Regency, in an acting capacity, until the Legislature can be reconvened to elect by ballot a lawful Regency according to Article 33 of the 1864 Constitution, as amended. The doctrine of necessity and Hawaiian constitutional law provides the legal basis for the Regency to serve in an acting role.
What should become a part of the conversation is the duty of the State of Hawai‘i Adjutant General to comply with the law of occupation by establishing a military government to temporarily administer the laws of the Hawaiian Kingdom as they were prior to the American invasion and also the provisional laws of the Hawaiian Kingdom proclaimed by the Council of Regency on October 10, 2014. These provisional laws shall be all Federal, State, and County laws that “do not run contrary to the express, reason and spirit of the laws of the Hawaiian Kingdom prior to July 6, 1887, the international law of occupation and international humanitarian law, and if it be the case they shall be regarded as invalid and void.” The Minister of the Interior published a memorandum on the formula to be used in determining whether American laws can be considered provisional laws of the Hawaiian Kingdom.
