International law is the set of rules, norms, and standards that govern relations between sovereign and independent States, and international organizations. An example of an international organization is the Permanent Court of Arbitration, which is an intergovernmental organization comprised of government representatives of independent States.

The main sources of international law are international agreements called convention or treaties, international custom, and general principles of law recognized by civilized nations. International custom is also called customary international law, which is a set of unwritten, binding legal rules derived from the consistent, general practices of independent States, rather than formal written treaties.

There are two components of customary international law—the “what,” which is the specific practice of States, and the “why,” which is the reason a State does the specific practice. The former is called State practice, and the latter is called opinio juris where the States must act out of a sense of legal obligation and not just because it wants to. Opinio juris is Latin that means “opinion of law or practice.” The action of a State can include its silence, which is an act of acquiescence.

When the Permanent Court recognized the Hawaiian Kingdom’s continued existence as an independent State and the Council of Regency as its interim government, in Larsen v. Hawaiian Kingdom, it was an act taken by an intergovernmental organization. Professor Michael Akehurst, in his article “Custom as a Source of International Law,” stated that because intergovernmental organizations are comprised of representatives of States, “their practice is best regarded as the practice of States.” So, when none of the current 127 States that comprise the Permanent Court, which includes the United States, objected to the Permanent Court’s act of recognizing the Hawaiian Kingdom, they did so because of a legal obligation.

That legal obligation is that international law clearly states that the State continues to exist despite its government being militarily overthrown. This is why the State of Iraq continued to exist despite the United States military overthrow of the Iraqi government during the Second Gulf War. This was called the American occupation of Iraq. And that the only way the United States could acquire the territory and sovereignty of the Hawaiian Kingdom is by a treaty of cession. There is no such treaty that the Hawaiian Kingdom ceded its territory and sovereignty to the United States. There only exists the unlawful imposition of American laws over the territory of the Hawaiian Kingdom since 1898. Like any of the laws of a State, American laws have no effect outside of its territorial borders.

There are two significant acts by the Permanent Court that the United States did not object to. The first significant act are the Permanent Court’s annual reports from 2001-2011 that stated the jurisdiction of the Permanent Court for the Larsen v. Hawaiian Kingdom arbitration was by virtue of Article 47 of the 1907 Hague Convention for the Pacific Settlement of International Disputes, which established the Permanent Court. Article 47 states, “The jurisdiction of the Permanent Court may, within the conditions laid down in the regulations, be extended to disputes [with] non-Contracting Powers.” Under international law “Powers” and “States” are used interchangeably.

Because the Hawaiian Kingdom did not sign the 1907 Hague Convention, it is considered a non-Contracting Power. There are currently 125 Contracting Powers to the 1907 Hague Convention who are also Contracting States to the United Nations Charter. Of the 193 Member States of the United Nations, 68 are non-Contracting Powers to the 1907 Hague Convention like the Hawaiian Kingdom. Just as the Hawaiian Kingdom could access the jurisdiction of the Permanent Court to resolve an international dispute, so could these 68 States under Article 47.

The second significant act is the Permanent Court’s case description of the Larsen case on its website, which states:

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.

Because the United States has not objected to the Permanent Court’s description of the case, it accepts the description as true and accurate. The case description states that the Hawaiian Kingdom, a non-Contracting Power, is represented by the Council of Regency as its Government. The 1849 Treaty of Friendship, Commerce and Navigation between the Hawaiian Kingdom and the United States continues to exist. And that the imposition of American municipal laws within the territorial jurisdiction of the Hawaiian Kingdom is UNLAWFUL.

In the federal lawsuit of Students for Fair Admissions v. Kamehameha Schools, there is a collision of Hawaiian Kingdom laws and American laws. The plaintiff is relying on American laws in its lawsuit, the defendant exists under Hawaiian Kingdom laws, and the federal court is under American law, which the United States, under customary international law, recognizes as UNLAWFUL.

These were the grounds for the Hawaiian Kingdom to intervene by filing a motion on January 21, 2026, in the case to ensure the protection of Kamehameha Schools under Hawaiian Kingdom law as well as customary international law that binds the United States. When Judge Micah Smith denied the Hawaiian Kingdom’s motion to intervene on January 23, 2026, claiming that it gave rise to the political question doctrine, the Hawaiian Kingdom filed a motion for reconsideration on February 3, 2026, because Judge Smith committed a “manifest error” in his judgment.

In its motion for reconsideration, the Hawaiian Kingdom showed why the Judge was in error because the political question only arises if the United States does not currently recognize the Hawaiian Kingdom and the Council of Regency as its government, BUT IT DID.

In the motion, it explained that not only did the United States recognize the Hawaiian Kingdom and the Council of Regency by opinio juris—customary international law as already explained, but also by an executive agreement, being a treaty under international law, where the United States requested permission from the Hawaiian Kingdom, WHICH IT GAVE, to have access to all records and pleadings of the Larsen case. The Deputy Secretary General of the Permanent Court, Phyllis Hamilton, brokered the agreement.

Coincident to the granting of permission was the United States recognition of the Hawaiian Kingdom and the Council of Regency as its interim government. In laymen’s terms, you can’t request permission without first recognizing that you are asking permission from a government that is a defendant in an international arbitration case at the Permanent Court.

It would appear that Judge Smith hit the “pause button.” Where he quickly issued the judgment denying the Hawaiian Kingdom’s motion to intervene just two days after the filing, we are now at seventeen days since the filing of the motion for reconsideration.

FOR IMMEDIATE RELEASE
February 16, 2026

Today, the Council of Regency, as interim government of the Hawaiian Kingdom, filed its Motion for Leave to File Supplemental Brief in Support of Motion for Reconsideration with the United States District Court for the District of Hawai‘i, seeking permission of Judge Micah Smith to file its supplemental brief in support of its motion for reconsideration.

The Hawaiian Kingdom explains that the supplemental brief provides vital case law, analysis and context necessary for Judge Smith’s consideration regarding its motion for reconsidering its decision that the Hawaiian Kingdom’s motion to intervene raises the political question doctrine, which prevents the federal court from accepting the filing. The political question doctrine only arises if the United States executive branch has not recognized the sovereignty of a country such as Palestine.

In its motion for reconsideration, the Hawaiian Kingdom provided clear and irrefutable evidence that the United States recognized the continued existence of the Hawaiian Kingdom as a State since the nineteenth century and the Council of Regency as its government by an executive agreement, which is a treaty under international law. As explained in the Hawaiian Kingdom’s motion for reconsideration, this executive agreement granted the United States access to all records and pleadings of the Larsen case at the Permanent Court of Arbitration. The Hawaiian Kingdom also provided clear evidence that the United States, along with the other 126 Contracting States to the Permanent Court of Arbitration, also recognized the Hawaiian Kingdom and the Council of Regency under customary international law—opinio juris.

The Hawaiian Kingdom’s supplemental brief covered two additional areas for Judge Smith to consider. First, the significance of the 1937 decision by the U.S. Supreme Court, in United States v. Belmont, on executive agreements, and second, the legal status of the Kamehameha Schools trust under Hawaiian Kingdom law, but the legal status of the current administration of the trust under American law, which is a war crime under international law.

United States v. Belmont (1937)

In its supplemental brief, the Hawaiian Kingdom drew attention to the circumstances of the Supreme Court’s decision in United States v. Belmont, which is similar in circumstance to the Hawaiian Kingdom’s executive agreement with the United States. In Belmont, the Supreme Court stated:

We take judicial notice of the fact that, coincident with the assignment set forth in the complaint, the President recognized the Soviet Government.

The assignment was effected by an exchange of diplomatic correspondence between the Soviet Government and the United States. The purpose was to bring about a final settlement of the claims and counterclaims between the Soviet Government and the United States, and it was agreed that the Soviet Government would take no steps to enforce claims against American nationals, but all such claims were released and assigned to the United States, with the understanding that the Soviet Government was to be duly notified of all amounts realized by the United States from such release and assignment.

And in respect of what was done here, the Executive had authority to speak as the sole organ of that government. The assignment and the agreements in connection therewith did not, as in the case of treaties, as that term is used in the treaty-making clause of the Constitution (Art. II, § 2), require the advice and consent of the Senate.

We held that, although this might not be a treaty requiring ratification by the Senate, it was a compact negotiated and proclaimed under the authority of the President, and as such was a “treaty” within the meaning of the Circuit Court of Appeals Act, the construction of which might be reviewed upon direct appeal to this court.

Like the assignment being effected by the executive agreement with the Soviet Government, the permission for the United States to access all records and pleadings in the Larsen case was effected by the executive agreement with the Hawaiian Kingdom Government. Coincident to both executive agreements was the United States recognition of the Soviet Government and the Hawaiian Kingdom Government.

Kamehameha Schools established under Hawaiian Kingdom law

By her last Will and Testament dated October 31, 1883, with two codicils dated October 4, 1884, and October 9, 1884, Bernice Pauahi Bishop established a mandate “to erect and maintain in the Hawaiian Islands two schools, each for boarding and day scholars, one for boys and one for girls, to be known as, and called the Kamehameha Schools,” and “to devote a portion of each years income to the support and education of orphans, and others in indigent circumstances, giving the preference to Hawaiians of pure or part aboriginal blood.” She also told her husband, Charles Reed Bishop who became Chair of the Trustees, that aboriginal Hawaiians should have preference in admission. He stated this in his speech at the first Founder’s Day celebration in 1888.

The Will with two codicils were admitted to probate by the Supreme Court of the Hawaiian Kingdom on December 2, 1884. According to article fourteen of the will, she designated Charles R. Bishop, Samuel M. Damon, Charles M. Hyde, Charles M. Cooke, and William O. Smith to be her trustees. On March 4, 1885, these individuals accepted their duties as trustees. The Will provides “that vacancies shall be filled by the choice of a majority of the Justices of the Supreme Court,” and that annual reports “of all receipts and expenditures, and of the condition of said schools,”  shall be made “to the Chief Justice of the Supreme Court, or the highest judicial officer in the country.” 

After President Grover Cleveland completed a presidential investigation into the overthrow of the Government of the Hawaiian Kingdom by United States troops on January 17, 1893, he sent a message to the Congress that the insurgency calling itself the provisional government was “neither a government de facto [in fact] nor de jure [in law],”  and that it “owes its existence to an armed invasion by the United States.”  The President entered into an executive agreement with the Queen where he committed that the United States would reinstate the Queen in office as the Executive Monarch, and the Queen committed that after she’s reinstated she’ll grant amnesty to the insurgents. Due to political wrangling in the Congress, however, the President was unable to carry out its obligation under the executive agreement, which is a treaty under international law, and the insurgents did not receive amnesty.

On July 4, 1894, the insurgency changed its name from the provisional government to the Republic of Hawai‘i and continued to seek annexation by the United States. On March 4, 1897, President Cleveland was succeeded by President William McKinley. President McKinley’s administration favored annexing the Hawaiian Islands for military purposes. At the height of the Spanish-American War, the Congress enacted a joint resolution of annexation on July 6, 1898, and President McKinley signed it into law the following day. The underlying problem is that any law enacted by the Congress has no effect beyond the borders of the United States. Only by means of a treaty with the Hawaiian Kingdom, not with the insurgents, could the United States acquire Hawaiian sovereignty and territory. A joint resolution is not a treaty. Regarding the limits of American laws, the Supreme Court, in Belmont, stated, “our Constitution, laws and policies have no extraterritorial operation unless in respect of our own citizens.”

In 1988, the Department of Justice Office of Legal Counsel (OLC), in a legal opinion, 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.”  The OLC stated:

The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in the 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 it is enacted.

On April 30, 1900, the Congress renamed the Republic of Hawai‘i to the Territory of Hawai‘i and began to impose American laws in the Hawaiian Kingdom in violation of international law.  In 1959, the Congress renamed the Territory of Hawai‘i to the State of Hawai‘i.  The State of Hawai‘i is the direct successor of the provisional government and their laws, being American laws, have no effect within the territory of the Hawaiian Kingdom. Under international law, the imposition of American laws is a war crime called usurpation of sovereignty during military occupation.

Usurpation of sovereignty during military occupation was listed as a war crime in 1919 by the Commission on Responsibilities of the Paris Peace Conference that was established by the Allied and Associated Powers at war with Germany and its allies during the First World War. The Commission was especially concerned with acts perpetrated in occupied territories against non-combatants and civilians. Usurpation of sovereignty during military occupation is the imposition of the laws and administrative policies of the Occupying State over the territory of the Occupied State. The crime of usurpation of sovereignty during military occupation was referred to by Judge Blair of the American Military Commission in a separate opinion in the Justice Case, holding that this “rule is incident to military occupation and was clearly intended to protect the inhabitants of any occupied territory against the unnecessary exercise of sovereignty by a military occupant.”

Because the Queen was not reinstated and the insurgency did not receive amnesty, the Bishop Estate was incapable of operating after January 17, 1893, because the majority of its trustees were insurgents. Furthermore, the Will only provides for the appointment of trustees to be done by the Hawaiian Kingdom Supreme Court and no other. When Charles Hyde, one of the trustees, died October 13, 1898, the Territory of Hawai‘i Supreme Court appointed Alfred W. Carter his successor on January 6, 1900. First, the Territorial Supreme Court is not the Hawaiian Kingdom Supreme Court, and second, Walter F. Frear and William A. Whiting who appointed Carter were insurgents and members of the provisional government. All appointments of trustees after January 17, 1893, were not in accordance with the Will of Bernice Pauahi Bishop, and the operation of Bishop Estate under American law did not affect or change the Estate as it stood on January 17th. The Bishop Estate lapsed into abeyance on January 17, 1893.

The current Trustees of the Kamehameha Schools were all appointed by the State of Hawai‘i Probate Court under American law. Their appointment of Jack Wong as Chief Executive Officer in 2014 was made by Trustees appointed under American law but the Kamehameha Schools trust is under Hawaiian Kingdom law. In its supplemental brief, the Hawaiian Kingdom explained that the current standing of the administration of Kamehameha Schools can be remedied under the provisional laws of the Hawaiian Kingdom so long as the selection of trustees by a probate court are not inconsistent with Hawaiian Kingdom law.

On October 10, 2014, the Council of Regency proclaimed the provisional laws of the Hawaiian Kingdom. The Proclamation stated, “And we do hereby proclaim from the date of this proclamation all laws that have emanated from an unlawful legislature since the insurrection began on July 6, 1887 to the present, to include United States legislation, shall be the provisional laws of the Realm subject to ratification by the Legislative Assembly of the Hawaiian Kingdom once assembled, with the express proviso that these provisional laws do not run contrary to the express, reason and spirit of the laws of the Hawaiian Kingdom prior to July 6, 1887, the international laws of occupation and international humanitarian law, and if it be the case they shall be regarded as invalid and void.”

The obligatory nature of this Proclamation is expressed in section 6 of the Hawaiian Civil Code that states:

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.”

The Council of Regency would consider that the selection of Kamehameha Schools Trustees by a State of Hawai‘i Probate Court, and not the Supreme Court, “do not run contrary to the express, reason and spirit of the laws of the Hawaiian Kingdom prior to July 6, 1887, the international laws of occupation and international humanitarian law” given the circumstances for that change.

The Council of Regency is represented by Hawaiian attorney Edward Halealoha Ayau of the Law Office of Edward Halealoha Ayau.

MEDIA CONTACT:

Dr. David “Keanu” Sai, Ph.D.
Chairman of the Council of Regency
Acting Minister of the Interior
Acting Minister of Foreign Affairs ad interim
Email: interior@hawaiiankingdom.org

The federal courts of the United States represent a higher level of standard than courts within the various States of the American Union. What is at its core is the “rule of law” that provides legal predictability, continuity, and coherence; reasoned decisions made through publicly visible processes and based faithfully on the law. U.S. District Courts, unlike the Appellate Courts, have trials that apply the rule of law in filings, proceedings and evidence. You don’t have trials at the Appellate Court.

Rule 11(b) of the Federal Rules of Civil Procedure addresses representations to the Court. “By presenting to the court a pleading, written motion, or other paper…an attorney…certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.”

If an attorney files any written motion that violates these conditions, he/she can be sanctioned by the Court under Rule 11(c)(1), which states, “If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.” In other words, if a motion is frivolous, the attorney can be sanctioned.

The basis of this rule would also apply to Declarations made in support of a motion where the declarant would have committed the crime of perjury if what was stated in the Declaration are false statements. This comes under U.S. Federal law 18 U.S.C. §1621 and §1623. This is why in Declarations filed with Federal Courts it states, “I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.”

Rule 11(b)(2) applies to the content of the Hawaiian Kingdom’s Motion for Reconsideration, which is “warranted by existing law.” In the District Courts, along with constitutional provisions and statutes, existing law includes Federal Court decisions that came before the Appellate Courts or the Supreme Court.

In the Hawaiian Kingdom’s Motion for Reconsideration, it provided clear evidence of two instances that the United States recognized the continued existence of the Hawaiian Kingdom and the Council of Regency as its government while administrative proceedings took place at the Permanent Court of Arbitration, The Hague, Netherlands, in Larsen v. Hawaiian Kingdom (1999-2001).

The first instance was by executive agreement between the Council of Regency and the United States, by its Embassy in the Netherlands, that provided permission to the United States to access all records and pleadings of the case. Under international law, this is called an executive agreement, by exchange of notes. Pertinent Supreme Court decisions on this subject of executive agreements that were cited in the Motion for Reconsideration are United States v. Belmont (1937), United States v. Pink (1942), and American Ins. Ass’n v. Garamendi (2003).

In Garamendi, the Supreme Court stated, “our cases have recognized that the President has authority to make ‘executive agreements’ with other countries, requiring no ratification by the Senate […] this power having been exercised since the early years of the Republic.”

In Belmont, the Supreme Court stated, “an international compact […] is not always a treaty which requires the participation of the Senate.”

And in Pink, the Supreme Court stated, “all international compacts and agreements’ are to be treated with similar dignity, for the reason that ‘complete power over international affairs is in the national government, and is not and cannot be subject to any curtailment or interference on the part of the several states.”

The significance on the executive agreement between the Hawaiian Kingdom and the United States is stated by the Supreme Court in Garamendi where, “valid executive agreements are fit to preempt state law, just as treaties are.” In other words, the executive agreement negates the legal existence of the State of Hawai‘i, and the consequences of this executive agreement where the United States recognizes the continued existence of the sovereignty of the Hawaiian Kingdom over the Hawaiian Islands is clearly stated by the Supreme Court in Jones v. United States (1890). In Jones, the Supreme Court stated:

By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. […] He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.”

In Jones, the Supreme Court also stated that recognition of the sovereignty of a State “conclusively binds the judges, as well as all other officers, citizens, and subjects of that government.” In other words, this executive agreement of recognition binds District Court Judge Micah Smith, the Plaintiffs Student for Fair Admission and the Defendant Kamehameha Schools and that it “can never be examinable by the courts” of the United States, which includes State courts.

The Court, together with the Plaintiffs and the Defendant, are not the contracting parties to the executive agreement, but are bound not to question or examine it, unless they can provide evidence that there is no such executive agreement ever made. To do so, however, is to have the United States Attorney General intervene in the case and provide evidence that there is no such thing as an executive agreement between the Hawaiian Kingdom and the United States, a claim that would be considered frivolous under Rule 11(b). Therefore, the U.S. Attorney General, after intervening in the lawsuit, will have to counter the evidential basis of the executive agreement in the Hawaiian Kingdom’s Motion for Reconsideration. As a contracting party to the executive agreement, only the United States can examine the evidence of the executive agreement.

The second instance was by opio juris—customary international law where none of the Contracting States to the treaty that formed the Permanent Court, to include the United States, did not object to the Permanent Court’s recognition of the continued existence of the Hawaiian Kingdom and the Council of Regency as its government in order for it to have established the arbitration tribunal on June 9, 2000. This was explained in a legal opinion by Federico Lenzerini, a professor of international law at the University of Siena, Italy, which was Exhibit 1 attached to his Declaration that was filed with the Motion for Reconsideration.

The Supreme Court has recognized that the writings of legal scholars are a source of customary international law. In the Paquete Habana case (1900), the Supreme Court stated, “the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.”

These scholars also include Professor Matthew Craven’s legal opinion on the continuity of the Hawaiian Kingdom as a State under international law, which is Exhibit B attached to the Hawaiian Kingdom’s Motion to Intervene; Professor Federico Lenzerini’s legal opinion on the authority of the Council of Regency of the Hawaiian Kingdom attached as Exhibit D to the Motion to Intervene; and Professor William Schabas’ legal opinion on war crimes related to the American occupation of the Hawaiian Kingdom attached as Exhibit E to the Motion to Intervene.

As they say in the game of chess, checkmate, which is where there is no possible escape for the United States.

FOR IMMEDIATE RELEASE
February 3, 2026

Today, the Council of Regency, as interim government of the Hawaiian Kingdom, filed its Motion for Reconsideration with the United States District Court for the District of Hawai‘i, seeking reconsideration of Judge Micah Smith’s January 23, 2026, Order to deny the Hawaiian Kingdom’s Motion to Intervene in the case between Students for Fair Admissions and the Kamehameha Schools filed on January 21, 2026.

The Hawaiian Kingdom argues that the Court committed “manifest errors of law” including its misapplication of the political question doctrine at the intervention stage. ​ Rule 24 of the Federal Rules of Civil Procedure only requires a legally protectable interest related to the subject of the action to permit intervention, conclusively established by the Hawaiian Kingdom in its initial Motion to Intervene.  Judge Smith, in his Order, manifestly erred by stating that intervention would require adjudication of issues constitutionally committed to the political branches.

​The political question doctrine bars federal courts from adjudicating disputes that are “textually committed” by the U.S. Constitution to another branch or lack judicially manageable standards to resolve. In the case of Hawai‘i, the court invoked this doctrine because prior courts asserted that the United States executive branch has not recognized the Hawaiian Kingdom. In this case, the Hawaiian Kingdom provides conclusive evidence that this is incorrect.

The United States did recognize the Hawaiian Kingdom during arbitration proceedings at the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom from 1999-2001.

First, the United States explicitly recognized the Hawaiian Kingdom and the Council of Regency as a matter of opinio juris, under customary international law, when it did not object to the Permanent Court’s recognition of the Hawaiian Kingdom and the Council of Regency before it formed the arbitration tribunal on June 9, 2000. An example of such customary international practice occurred when Palestine became a contracting State to the treaty on October 30, 2015, that formed the Permanent Court, the United States filed a protest with the Dutch Foreign Ministry that stated “the government of the United States considers that ‘the State of Palestine’ does not answer to the definition of a sovereign State and does not recognize it as such.”

Second, the United States explicitly recognized the continued existence of the Hawaiian Kingdom as a State since the nineteenth century and the Council of Regency as its government when it entered into an executive agreement with the Council of Regency that allowed the United States, through its Embassy, in The Hague, Netherlands, to access records and pleadings of the case.

If Hawai‘i was legally the 50th State of the American Union and not the State of the Hawaiian Kingdom, customary international practice obligates the United States to have protested the Permanent Court’s recognition of the Hawaiian Kingdom’s continued existence and the Council of Regency as its government. Customarily, its failure to protest, binds the United States’ (as well as all countries of the Permanent Court) recognition of the continued existence of the Hawaiian Kingdom and the Council of Regency as its government.

Moreover, the United States would not be able to say that the State of Hawai‘i is lawful because at the center of the dispute between Larsen and the Hawaiian Kingdom was the unlawful imposition of American laws over the territory of the Hawaiian Kingdom. On its website the Permanent Court described the Larsen v. Hawaiian Kingdom 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.

The State Hawai‘i was established in 1959 by an American law, which would make its existence unlawful under international law.

In its arbitration award in Larsen v. Hawaiian Kingdom, the arbitration tribunal stated that “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 Permanent Court’s institutional recognition of the Hawaiian Kingdom prevents the United States, under international law, from denying its existence today as a sovereign State, unless the United States can show it extinguished the Hawaiian Kingdom under international law. To have extinguished the Hawaiian Kingdom under international law it would have to show that the Hawaiian Kingdom ceded or transferred its sovereignty and territory to the United States by a treaty of cession. There is no such evidence.

Significantly, NONE of the current 126 Contracting States to the treaty that formed the Permanent Court, to include the United States, objected to the Permanent Court’s conclusion that the Hawaiian Kingdom continues to exist and that it is a non-Contracting State under Article 47 of the treaty permitting the Hawaiian Kingdom access to the Permanent Court. Article 47 states, the “jurisdiction of the Permanent Court may…be extended to disputes [with] non-Contracting Powers.” In international law, “Powers” is used interchangeably with “States.”

This means the following 126 States also recognize the Hawaiian Kingdom and the Council of Regency by opinio juris—customary international law:

Albania, Argentina, Armenia, Australia, Austria, The Bahamas, Bahrain, Bangladesh, Belarus, Belgium, Belize, Benin, Brazil, Bulgaria, Burkina Faso, Cambodia, Cameroon, Canada, Chile, Colombia, the Democratic Republic of the Congo, Costa Rica, Croatia, Cuba, Cyprus, Czechia, the Democratic Republic of São Tomé and Príncipe, Denmark, Djibouti, Dominican Republic, Ecuador, Egypt, El Salvador, Eritrea, Estonia, Eswatini, Ethiopia, Fiji, Finland, France, Georgia, Germany, Greece, Guatemala, Guyana, Haiti, Honduras, Hungary, Iceland, India, Iran, Iraq, Ireland, Israel, Italy, Japan, Jordan, Kenya, Kuwait, Kyrgyzstan, Lao People’s Democratic Republic, Latvia, Lebanon, Libya, Lithuania, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malaysia, Malta, Mauritius, Mexico, Mongolia, Montenegro, Morocco, Netherlands, New Zealand, Nicaragua, Nigeria, North Macedonia, Norway, Pakistan, Palestine, Panama, Paraguay, the People’s Republic of China, Peru, Philippines, the Plurinational State of Bolivia, Poland, Portugal, Qatar, Romania, Republic of Korea, Russian Federation, Rwanda, Saudi Arabia, Senegal, Serbia, Singapore, Slovak Republic, Slovenia, South Africa, Spain, Sri Lanka, Sudan, Suriname, Sweden, Switzerland, Thailand, Timor-Leste, Togo, Türkiye, Uganda, Ukraine, United Arab Emirates, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay, Vanuatu, Venezuela, Viet Nam, Zambia, and Zimbabwe.

All Hawaiian Kingdom treaty partners, to include the United States, are also Contracting States to the treaty that formed the Permanent Court, and these treaties have not been terminated. These treaties are also binding on the successor States of the Hawaiian Kingdom treaty partners. A successor State is a former colony of a State that gained its independence. Examples of successor States are Vietnam who was a former colony of France and New Zealand who was a former colony of Great Britain. Currently, the Hawaiian Kingdom has treaties with 153 Member States of the United Nations, of which 14 treaties are with original States and 139 treaties are with successor States.

Judge Smith’s Order created further manifest error when he prematurely and improperly expanded the court’s review for intervention, under Rule 24 of the Federal Rules of Civil Procedure, in stating that the Hawaiian Kingdom’s intervention made “arguments about the proper interpretation of federal law and the Constitution of the United States, and refer to materials that might aid in interpreting both,” and that Plaintiffs (SSFA) and Defendant (Kamehameha Schools) “are ably represented by counsel fully capable of submitting and raising arguments based on any such pertinent materials.” 

In its Motion for Reconsideration, the Hawaiian Kingdom provides evidence that Kamehameha Schools explicitly decided not to represent the Hawaiian Kingdom’s interests as a sovereign and independent State under international law. ​ Conversely, it defies reason to presume that Plaintiff SSFA would either raise or assert the application of Hawaiian Kingdom law resulting in the very extinguishment of its complaint.  This decision prompted the Hawaiian Kingdom to file its motion to intervene, as it believes neither the Plaintiffs nor the Defendant will adequately represent its interests. ​

The Hawaiian Kingdom references various legal cases and opinions, including State of Hawai‘i v. Lorenzo and United States v. Goo, which establish an evidentiary standard for proving the Hawaiian Kingdom’s continued existence as a sovereign State.​ It also cites international law principles, treaties, and legal opinions conclusively establishingthe Hawaiian Kingdom’s claims. ​The Hawaiian Kingdom’s motion for reconsideration has met that evidentiary standard of the Hawaiian Kingdom’s continued existence.

The Hawaiian Kingdom requests Judge Smith to reconsider its denial of the motion to intervene, arguing that the court’s decision was based on manifest errors of law and that the Hawaiian Kingdom has a legally protectable interest in the case. ​ It emphasizes the United States’ recognition of the Hawaiian Kingdom and the failure of Kamehameha Schools to represent its interests as a basis to grant its motion to intervene. ​​

The Council of Regency is represented by Hawaiian attorney Edward Halealoha Ayau of the Law Office of Edward Halealoha Ayau.

DOWNLOAD FILED HAWAIIAN KINGDOM PLEADINGS:

Motion for Reconsideration

Memorandum of Law in Support of Motion for Reconsideration

Declaration of Dr. David Keanu Sai with Exhibits 1-4

Declaration of Professor Niklaus Schweizer with Exhibit 1

Declaration of Professor Federico Lenzerini with Exhibits 1-2

MEDIA CONTACT:

Dr. David “Keanu” Sai, Ph.D.
Chairman of the Council of Regency
Acting Minister of the Interior
Acting Minister of Foreign Affairs ad interim
Email: interior@hawaiiankingdom.org