U.S. Files Their Reply to Hawaiian Kingdom’s Opposition to the U.S. Motion to Dismiss

Today the United States filed its Reply to the Hawaiian Kingdom’s Opposition to their Motion to Dismiss. At no point in these proceedings has the United States countered the facts and evidence provided by the Hawaiian Kingdom. In other words, the facts of this case have not been contested and, as such, are considered in favor of the Hawaiian Kingdom in its effort to have the federal court transform itself into an Article II Occupation Court.

This is also the first time ever where the United States had to present their position as to its claim of sovereignty over the Hawaiian Islands. In all prior cases that came before the federal courts, the United States relied on the judges of these courts to dismiss the cases because it presents a political question. The political question doctrine prevents federal courts from recognizing the sovereignty of a country if, and only if, the political branches of the President and/or Congress had not already recognized that sovereignty.

In other words, a federal court cannot assert the political question doctrine if a country such as Switzerland filed a complaint in the U.S. District Court in Washington, D.C., against certain officials of the United States because the United States recognized Switzerland as a sovereign and independent State and entered into a treaty of friendship, commerce and extradition with the Swiss government on November 25, 1850.

This is exactly the same situation with the Hawaiian Kingdom where the United States recognized the Hawaiian Kingdom as a sovereign and independent State on July 6, 1844, and entered into a treaty of friendship, commerce and navigation with the Hawaiian Kingdom on December 20, 1849. Just as the United States has a treaty with Switzerland so does the Hawaiian Kingdom has a treaty of friendship, establishment and commerce with Switzerland dated July 10, 1864. The political question doctrine does not apply to the Hawaiian Kingdom but it has been used as an expedient remedy to temporarily protect the United States in its own courts.

In its Motion to Dismiss, the United States takes the position that it has sovereignty over the Hawaiian Islands because the Congress passed a joint resolution of annexation in 1898 and in 1959 Hawai‘i became the 50th State of the Federal Union. This is a frivolous claim because United States laws, which includes the federal constitution, have no force and effect beyond the borders of the United States. If this is true, the United States Congress can pass a joint resolution annexing Canada today. Only by a treaty can one country acquire the territory of another country. As pointed out by the United States Supreme Court, in United States v. Curtiss-Wright Corp., in 1936:

“Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law. As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign.”

This is consistent at the international level where the Permanent Court of International Justice, in The Lotus Case (France v. Turkey), stated, in 1927, “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.”

The U.S. District Court claims to be an Article III Court by virtue of Article III of the U.S. Constitution, which provides for the authority of the Judiciary. Because the Supreme Court in Curtiss-Wright stated that “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory,” the U.S. District Court in Hawai‘i cannot claim to be an Article III Court because the U.S. Constitution has no force in foreign territory. It can only exist as an Article II Court under the President’s authority as the commander-in-chief of the armed forces in foreign territory. As stated in the Amicus Brief:

“Under the concept of void ab initio, there are structures that have no legal effect from inception. The United States occupation of Hawai‘i began with unclean  hands, and this can only be remedied by a clean slate and a new beginning.”

In the Hawaiian Kingdom’s Opposition to the Motion to Dismiss, it stated that the United States cannot rely on its internal laws, which includes federal court decisions that dismissed cases under the political question doctrine, for its failure to perform its obligation under international law. Under international law, the United States is obligated to administer the laws of the Hawaiian Kingdom because it still exists as a sovereign and independent State despite that its government was illegally overthrown on January 17, 1893. The Permanent Court of Arbitration (PCA), in Larsen v. Hawaiian Kingdom, acknowledged the continued existence of the Hawaiian Kingdom as a State in 1999 and the Council of Regency as its restored government.

In its Reply, the United States continued to attempt to confuse the Court by stating what the Arbitration Tribunal stated and what the PCA did as explained by Italian scholar Professor Federico Lenzerini in his legal opinion, which is attached to the Hawaiian Kingdom’s Motion for Judicial Notice as Exhibit 1. As the Hawaiian Kingdom clearly explained in all of its pleadings to include its Opposition to the Motion to Dismiss, there is a very clear distinction between the institutional jurisdiction of PCA, which is an inter-governmental organization, and the subject matter jurisdiction of the Arbitral Tribunal that is established by the PCA.

In accordance with Article 47 of the 1907 Convention that established the PCA, it allows access to the institutional jurisdiction of the PCA by States that have not signed and ratified the 1907 Convention, which are called non-contracting States. As the Hawaiian Kingdom is not a contracting State to the 1907 Convention, it would have access to the PCA’s institutional jurisdiction under Article 47.

The Arbitral Tribunal in the Larsen case was established in accordance with Article 47 as stated in the PCA’s Annual Reports from 2000 to 2011. If the Hawaiian Kingdom was not a State under international law, there would not have been a Larsen v. Hawaiian Kingdom case. The United States stated in their Reply:

“The primary authority cited as support for Plaintiff’s theory remains Prof. Lenzerini’s interpretation of the significance of the decision by the International Bureau of the Permanent Court of Arbitration (“PCA”) to institute an arbitration involving Plaintiff. The arbitral award explicitly rejects this inference. It demonstrates that the PCA refused to reach a conclusion about Plaintiff’s sovereignty. Nonetheless, even if Plaintiff’s interpretation of the PCA’s actions were correct, it would not matter. The questions raised by Plaintiff and Prof. Lenzerini are classic political questions about the recognition of state sovereignty that the Court has no jurisdiction to answer.”

This statement is convoluted and a word salad. Foremost, the United States implies that the PCA and the Arbitral Tribunal are one in the same when it stated that the “PCA refused to reach a conclusion about Plaintiff’s sovereignty.” This is a false statement because the PCA did reach a conclusion “about Plaintiff’s sovereignty” when it formed the Tribunal on June 9, 2000. The proceedings were initiated on November 8, 1999, but the International Bureau had to be sure that the Hawaiian Kingdom existed as a State before it could form the Tribunal in the first place.

The United States relies on what the Tribunal stated in its Award that “in the absence of the United States of America [as a party], the Tribunal can neither decide that Hawaii is not part of the USA, nor proceed on the assumption that it is not.” What the United States leaves out is that it was the Hawaiian Kingdom that requested the Tribunal to declare that the Hawaiian Kingdom exists as a State. The request was made because the 2000 Annual Report acknowledging the Hawaiian Kingdom’s existence as a State in accordance with Article 47 did not come out yet.

The Hawaiian Kingdom also knew that even if the Tribunal did pronounce the Hawaiian Kingdom’s existence as a State without the participation of the United States in the proceedings it would only apply and be binding between Larsen and the Hawaiian Kingdom. As stated under Article 59 of the Statute of the International Court of Justice (ICJ), decisions of the ICJ have “no binding force except between the parties and in respect of that particular case.” And as stated by ICJ Judge Thomas Buergenthal before the membership of the American Society of International law in 2009:

“It is clear, of course, that the doctrine of stare decisis is not part of international law. For states not parties to a case, judgments of the ICJ and of some other international courts are formally not lawmaking in character in the sense in which decisions of Common Law courts are binding precedents within their respective jurisdictions.”

The existence of the Hawaiian Kingdom as a State is a question of fact and not a question of law to be decided by an international court because independent States are co-equal to each other and cannot be subjected to an international court unless it consents to its jurisdiction to preside over the dispute. To allow an international court to determine whether a State exists undermines the sovereignty of the State in the first place. Furthermore, to give consent to an international court the party to the case has to be a State in the first place. The United States is trying to argue the significance of an egg without acknowledging the chicken that laid the egg by arguing the egg and the chicken are the same thing.

When the United Nations was considering an Advisory Opinion by the ICJ on the status of Palestine in 1948, Israeli Foreign Minister Eban argued that the “existence of a State is a question of fact and not of law.” Professor Oppenheim also stated, “The formation of a new State is…a matter of fact, and not law.” The Hawaiian Kingdom is not a new State but rather an existing State since the nineteenth century and the United States has not contested the facts that show this.

Because the United States Motion to Dismiss was filed after the Hawaiian Kingdom’s Motion for Judicial Notice of Civil Law that explains the actions taken by the PCA in acknowledging the existence of Hawaiian Statehood, the judge will have to make that determination first. When the Court has transformed itself into an Article II Occupation Court it can then take up the Motions to Dismiss filed by the United States and the Swedish Consul, and also the Statement of Interest by the United States because it would have jurisdiction to address the arguments. But then again, when the Court transforms into an Article II Occupation Court, the Motions to Dismiss and the Statement of Interest are moot and fall to the ground.

Right now it doesn’t have jurisdiction because it is not within the territory of the United States but rather sits within the territory of the Hawaiian Kingdom, being an occupied State. The United States at no time in these proceedings presented any counter evidence, such as a treaty, that the Hawaiian Islands have been ceded to the United States. They solely rely on Congressional law and not international law.

The United States has backed itself into a corner that it cannot get out of and appears to be relying on the Court to try to get it out of a predicament of its own making since 1893. Based on the evidence before this Court and the involvement of 30 other countries that have Consulates in the Hawaiian Kingdom in the case, and the authors of the Amicus Brief, which are the International Association of Democratic Lawyers, the National Lawyers Guild, and the Water Protectors Legal Collective, all of whom are organizations of lawyers and jurists at both the international and national levels, the Court is bound to follow the rule of law and grant the Hawaiian Kingdom’s Motion for Judicial Notice. The United States has given no credible reason for the Court to not take judicial notice, which would lead to the transformation of the Court from an Article III Court to an Article II Occupation Court.

Hawaiian Kingdom files its Reply to the US Opposition of Judicial Notice of Civil Law and Exposes a Conspiracy at the Highest Level of the US Government

On January 14, 2022, the United States filed their Opposition to the Hawaiian Kingdom’s Motion for Judicial Notice of Civil Law regarding the action taken by the International Bureau of the Permanent Court of Arbitration acknowledging the Hawaiian Kingdom as a non-Contracting State to the 1907 Convention on the Pacific Settlement of International Disputes. The United States simultaneously filed a Cross-Motion to Dismiss the Hawaiian Kingdom’s Amended Complaint, which it combined with their Opposition.

Today the Hawaiian Kingdom filed two pleadings in the federal lawsuit. The first filing was its Reply to the United States Opposition to the Hawaiian Kingdom’s Motion for Judicial Notice of the Civil Law. The second filing was its Opposition to the United States Cross-Motion to Dismiss. The United States will need to file their Reply to the Hawaiian Kingdom’s Opposition by February 11, 2022. In its opening of both the Reply and the Opposition, the Hawaiian Kingdom states:

Federal Government Defendants’ (“FGDs”) opposition and cross-motion to dismiss is based entirely on the jurisdiction of this Court as an Article III Court. FGDs contend that Defendant UNITED STATES OF AMERICA is the legitimate sovereign over the Hawaiian Islands because “[t]he United States annexed Hawaii in 1898, and Hawaii entered the union as a state in 1959 [and that] [t]his Court, the Ninth Circuit, and the courts of the state of Hawaii have repeatedly ‘rejected arguments asserting Hawaiian sovereignty’ distinct from its identity as a part of the United States.” FGDs’ claims lack merit on several grounds and are an attempt to obscure, mislead and misinform this Honorable Court’s duty to apply the rule of law.  Furthermore, while Plaintiff views the actions taken by this Court as a matter of due diligence regarding Plaintiff’s motion for judicial notice, which is not a dispositive motion, FGDs’ motion to dismiss, being a dispositive motion, can only be entertained after the Court possesses subject matter and personal jurisdiction as an Article II Court.

Both filings are substantially the same but because of the limited word count for the Reply, the Opposition’s word count allowed more information to be added, especially adding critical information of a conspiracy at the highest level of President McKinley’s administration to illegally seize the Hawaiian Islands for military purposes. Leading this conspiracy was the former President Theodore Roosevelt, who at the time was serving as Assistant Secretary of the Navy. Under international law today, this conspiracy would be considered an internationally wrongful act in the unilateral seizure of the territory of a sovereign and independent State.

It is important for the reader to understand this part of the Hawaiian Kingdom’s history from a legal standpoint and why the United States claims of sovereignty over the Hawaiian Islands lack any credible evidence under both international laws and United States laws. These legal proceedings have cleared the “smoke and mirrors” that the United States has relied on in claiming Hawai‘i is the 50th State of the Federal Union. It has forced the United States to admit its claim over the Hawaiian Islands is “only” by virtue of a joint resolution of annexation. Not by conquest and not by prescription, which is lapse of time. But by a joint resolution, which, as a congressional action, has no force and effect beyond the borders of the United States.

In order for the readers to understand the scope and magnitude of the legal consequences of the United States’ actions in its prolonged and illegal occupation of the Hawaiian Kingdom, here follows the Hawaiian Kingdom’s Reply and Opposition in its entirety. The footnotes have been omitted but can be retrieved in the filings.

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II. UNITED STATES RECOGNITION OF THE HAWAIIAN KINGDOM AS A STATE AND ITS GOVERNMENT PREDATES 1898

The legal status of the Hawaiian Kingdom as an independent State predates, not postdates, 1898. FGDs omit in their pleading that President John Tyler on July 6, 1844, explicitly recognized the Hawaiian Kingdom as an independent State by letter from Secretary of State John C. Calhoun to the Hawaiian Commission. This was confirmed by the arbitral tribunal in Larsen v. Hawaiian Kingdom:

[I]n 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 recognition of the Hawaiian Kingdom as a State was also the recognition of its government—a constitutional monarchy, as its agent. Successors in office to King Kamehameha III, who at the time of the United States recognition was King of the Hawaiian Kingdom, did not require diplomatic recognition. These successors included King Kamehameha IV in 1854, King Kamehameha V in 1863, King Lunalilo in 1873, King Kalākaua in 1874, and Queen Lili‘uokalani in 1891.

The legal doctrines of recognition of new governments only arise “with extra-legal changes in government” of an existing State. Successors to King Kamehameha III were not established through “extra-legal changes,” but rather under the constitution and laws of the Hawaiian Kingdom. According to Professor Peterson,

A government succeeding to power according to the constitution, basic law, or established domestic custom is assumed to succeed as well to its predecessor’s status as international agent of the state. Only if there is legal discontinuity at the domestic level because a new government comes to power in some other way, as by coup d’état or revolution, is its status as an international agent of the state open to question.

On January 17, 1893, by an act of war, the United States unlawfully overthrew the government of the Hawaiian Kingdom. President Grover Cleveland entered into an executive agreement with Queen Lili‘uokalani on December 18, 1893, in an attempt to restore the government but was politically prevented from doing so by members of Congress. The failure to restore the government, however, did not affect the legal status of the Hawaiian Kingdom as an independent State under international law.

In Texas v. White, the Supreme Court stated that a State “is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed.” The Supreme Court also stated that a “plain distinction is made between a State and the government of a State.” The Supreme Court’s position is consistent with international law where the “state must be distinguished from the government. The state, not the government, is the major player, the legal person, in international law.”

According to Judge Crawford, “[p]ending a final settlement of the conflict, belligerent occupation does not affect the continuity of the State. The governmental authorities may be driven into exile or silenced, and the exercise of the powers of the State thereby affected. But it is settled that the powers themselves continue to exist. This is strictly not an application of the ‘actual independence’ rule but an exception to it…pending a settlement of the conflict by a peace treaty or its equivalent.” There is no peace treaty or its equivalent between the Hawaiian Kingdom and the United States.

In 1996, remedial steps were taken to restore the Hawaiian government. An acting Council of Regency was established in accordance with the Hawaiian Constitution and the doctrine of necessity to serve in the absence of the Executive Monarch. The Council was established in similar fashion to the Belgian Council of Regency after King Leopold was captured by the Germans during the Second World War. As the Belgian Council of Regency was established under Article 82 of its 1821 Constitution, as amended, in exile, the Hawaiian Council was established under Article 33 of its 1864 Constitution, as amended, in situ. According to Professor Oppenheimer, the inability for the Belgian Council to convene the Legislature under Article 82 to provide a Regent due to Germany’s belligerent occupation it “did not create any serious constitutional problems. … While this emergency obtains, the powers of the King are vested in the Belgian Prime Minister and the other members of the cabinet.”

Like Belgium, Article 33 provides that the Cabinet Council “shall be a Council of Regency, until the Legislative Assembly, which shall be called immediately shall proceed to choose by ballot, a Regent or Council of Regency, who shall administer the Government in the name of the King, and exercise all the Powers which are constitutionally vested in the King.” Like the Belgian Council, the Hawaiian Council was bound to call into session the Legislative Assembly to provide for a regency but because of the prolonged belligerent occupation it was impossible for the Legislative Assembly to function. Until the Legislative Assembly can be called into session, Article 33 provides that the Cabinet Council, comprised of the Ministers of the Interior, Foreign Affairs, Finance and the Attorney General, “shall be a Council of Regency, until the Legislative Assembly” can be called into session. The operative words are “shall” and “until.”

The Hawaiian Council was established in accordance with the domestic laws of the Hawaiian Kingdom as they existed prior to the unlawful overthrow of the previous administration of Queen Lili‘uokalani, and, therefore, did not require diplomatic recognition like the previous administrations. Hence, the FGDs are estopped, as a matter of United States practice from 1846 to 1893 and international law, from denying the existence of the Hawaiian Kingdom as a State and its government—the Council of Regency.

III. PRESUMPTION OF CONTINUITY OF THE HAWAIIAN STATE

Under international law, there “is a presumption that the State continues to exist, with its rights and obligations…despite a period in which there is…no effective, government,” and that belligerent “occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” “A presumption is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted.” “If 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 sustaining its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by a reference to a valid demonstration of legal rights, or sovereignty, on the part of the United States, absent of which the presumption remains.”

According to Craven, “[under international law,] as it existed at the critical date of 1898, it was generally held that a State might ceased to exist in one of three scenarios: a) By the destruction of its territory or by the extinction, dispersal or emigration of its population (a theoretical disposition). b) By the dissolution of the corpus of the State (cases include the dissolution of the German Empire in 1805-6; the partition of the Pays-Bas in 1831 or of the Canton of Bale in 1833). [And] c) By the State’s incorporation, union, or submission to another (cases include the incorporation of Cracow into Austria in 1846; the annexation of Nice and Savoy by France in 1860; the annexation of Hannover, Hesse, Nassau and Schleswig-Holstein and Frankfurt into Prussia in 1886). Of the three scenarios only the third would in principle apply to the Hawaiian situation, which occurs by an agreement that is evidenced by a valid treaty between the acquiring and the ceding State, whether in a state of peace or in a state of war. Since 1893, the Hawaiian Kingdom has been in a state of war with the United States.

The 1898 joint resolution of annexation is not a treaty of State “incorporation” under international law but rather an internal law of the United States that stems from a failed treaty. To give the joint resolution proper context, the legislative history is important in understanding the backstory of the joint resolution. The driving force for annexation was military interest as advocated by U.S. Naval Captain Alfred Mahan.

After the United States admitted unlawful overthrow of the Hawaiian Government, Mahan wrote a letter to the Editor of the New York Times where he advocated seizing the Hawaiian Islands. On January 31, 1893, he wrote that the Hawaiian Islands, “with their geographical and military importance, [is] unrivalled by that of any other position in the North Pacific.” Mahan used the Hawaiian situation to bolster his argument of building a large naval fleet. He warned that a maritime power could well seize the Hawaiian Islands, and that the United States should take that first step. He stated that to hold the Hawaiian Islands, “whether in the supposed case or in war with a European state, implies a great extension of our naval power. Are we ready to undertake this?” Mahan would have to wait four years to find an ally in President William McKinley’s Department of the Navy, Assistant Secretary of the Navy, Theodore Roosevelt.

Roosevelt sent a private and confidential letter, on May 3, 1897, to Mahan. He wrote, “I need not tell you that as regards Hawaii I take your views absolutely, as indeed I do on foreign policy generally. If I had my way we would annex those islands tomorrow.”  Moreover, Roosevelt told Mahan that Cleveland’s handling of the Hawaiian situation was “a colossal crime, and we should be guilty of aiding him after the fact if we do not reverse what he did.” Roosevelt also assured Mahan “that Secretary [of the Navy] Long shares [their] views. He believes we should take the islands, and I have just been preparing some memoranda for him to use at the Cabinet meeting tomorrow.”

In a follow up letter to Mahan, on June 9, 1897, Roosevelt wrote that he “urged immediate action by the President as regards Hawaii. Entirely between ourselves, I believe he will act very shortly. If we take Hawaii now, we shall avoid trouble with Japan.” Eight days later, on June 16, 1897, the McKinley administration signed a treaty of “incorporation” with its American puppet—the Republic of Hawai‘i, in Washington, D.C. On the following day, Queen Lili‘uokalani submitted a formal protest to the U.S. State Department stating, “I declare such a treaty to be an act of wrong toward the native and part-native people of Hawaii, an invasion of the rights of the ruling chiefs, in violation of international rights both toward my people and toward friendly nations with whom they have made treaties, the perpetuation of the fraud whereby the constitutional government was overthrown, and, finally, an act of gross injustice to me.”

Ignoring the protest, President McKinley submitted the treaty for Senate ratification, which required a minimum of 60 votes under United States law.  The Senate, however, was not convening until December 6, 1897. This prompted two Hawaiian political organizations to mobilize signature petitions protesting annexation. According to Professor Silva, the “strategy was to challenge the U.S. government to behave in accordance with its stated principles of justice and of government of the people, by the people, and for the people.” The Hawaiian Political Association (Hui Kalai‘āina) gathered over 17,000 signatures, and the Hawaiian Patriotic League (Hui Aloha ‘Āina) gathered 21,269 signatures. The last official census, done in 1890, tallied Hawaiian subjects at 48,107, and, therefore, the petitions, in fact, represented the majority of the Hawaiian citizenry.

The leaders representing the Hawaiian Patriotic League and the Hawaiian Political Association, arrived in Washington, D.C., on December 6, 1897, the same day the Senate opened its session, and were told there were 58 votes for annexation. The next day, they met with Queen Lili‘uokalani and chose her as chair of the Washington Committee. In that meeting, “they decided to present only the petitions of Hui Aloha ‘Āina because the substance of the two sets of petitions were different. Hui Aloha ‘Āina’s petition protested annexation, but the Hui Kālai‘āina’s petitions called for the monarchy to be restored. They agreed that they did not want to appear divided or as if they had different goals.”

Senators Richard Pettigrew and George Hoar met with the Committee and said they would lead the opposition in the Senate. Senator Hoar stated he would introduce opposition into the Senate and the Senate Foreign Relations Committee. “On December 9, with the delegates present, Senator Hoar read the text of the petitions to the Senate and had them formally accepted.” In the days that followed, the Committee would meet with many Senators urging them not to ratify the treaty. Two of the leading Senators for annexation were Senators Henry Cabot Lodge and John Morgan, who were both strong believers in Captain Mahan’s views on Hawai‘i.

Unbeknownst to the Queen and the Hawaiian delegates, Senators began to inquire into the military importance of annexing the Hawaiian Islands. On this matter, Senator James Kyle made a request, by letter, to Mahan, on February 3, 1898, where he wrote, “[r]ecent discussions in the Senate brought prominently to the front the question of the strategic features of the Hawaiian Islands, and in this connection many quotations have been made from your valuable and highly interesting contribution to literature in regard to these islands.”

This was war rhetoric to justify the preemptive seizure of a neutral State for military interests. It was precisely what Germany did in 1914 to justify its invasion and occupation of Luxembourg. Germany invaded Luxembourg before formally declaring war against France. German military commander, Herr von Jagow then stated, “to our great regret, the military measures which have been taken have become indispensable by the fact that we have received sure information that the French military were marching against Luxemburg. We were forced to take measures for the protection of our army and the security of our railway lines.” Herr von Jagow then issued a proclamation stating “all the efforts of our Emperor and King to maintain peace have failed. The enemy has forced Germany to draw the sword. France has violated the neutrality of Luxemburg and has commenced hostilities on the soil of Luxemburg against German troops, as has been established without a doubt.” The French protested against this German invasion and confirmed there were no French troops in Luxembourg. Thus, according to Garner, “The alleged intentions of France were merely a pretext, and the violation of Luxemburg was committed by Germany solely in her military interest and in no sense on the ground of military necessity.”

It appears the Senators were not swayed by Mahan’s position because by the time the Hawaiian Committee left Washington, D.C., on February 27, 1897, they had successfully chiseled the 58 Senators in support of annexation down to 46. Unable to garner the necessary 60 votes, the treaty failed by March, yet war with Spain was looming over the horizon, and the Hawaiian Kingdom would have to face the belligerency of the United States again. American military interests would be the driving forces behind the occupation of the islands, and Mahan’s philosophy, the guiding principles. On April 25, 1898, Congress declared war on Spain.

On May 1, 1898, the U.S.S. Charleston, a protect cruiser, was commissioned. Then on May 5, it was ordered to lead a convoy of 2,500 troops to reinforce Dewey in the Philippines and Guam. In a move to deliberately violate Hawaiian neutrality, the convoy set a course to re-coal and arrived in Honolulu harbor on June 1. This convoy took on 1,943 tons of coal before it left on June 4. A second convoy of troops arrived in Honolulu harbor on June 23 and took on 1,667 tons of coal. On June 8, H. Renjes, the Spanish Vice-Counsel in Honolulu, lodged a formal protest. Renjes declared, “In my capacity as Vice Consul for Spain, I have the honor today to enter a formal protest with the Hawaiian Government against the constant violations of Neutrality in this harbor, while actual war exists between Spain and the United States of America.”

The U.S. gave formal notice to the other powers of the existence of war so that these powers could proclaim neutrality, yet the United States was also violating the neutrality of the Hawaiian Kingdom at that time. From Professor Bailey’s view, the position taken by the United States “was all the more reprehensible in that she was compelling a weak nation to violate the international law that had to a large degree been formulated by her own stand on the Alabama claims. Furthermore, in line with the precedent established by the Geneva award, Hawaii would be liable for every cent of damage caused by her dereliction as a neutral, and for the United States to force her into this position was cowardly and ungrateful.” Bailey also wrote, “At the end of the war, Spain or a cooperating power would doubtless occupy Hawaii, indefinitely if not permanently, to insure payment of damages with the consequent jeopardizing of the defenses of the Pacific Coast.”

On May 4, Representative Francis Newlands submitted a joint resolution for the annexation of the Hawaiian Islands to the House Committee on Foreign Affairs. On May 17, the joint resolution was reported out of the Committee without amendment and headed to the floor of the House of Representatives. The joint resolution’s accompanying Report justified the congressional action to seize the Hawaiian Islands as a matter of military interest, which was advocated by Mahan.

The Congressional record clearly showed that when the joint resolution of annexation reached the floor of the House of Representatives, members of Congress knew the limitations of congressional laws. Representative Thomas H. Ball emphatically stated, “[t]he annexation of Hawaii by joint resolution is unconstitutional, unnecessary, and unwise. …Why, sir, the very presence of this measure here is the result of a deliberate attempt to do unlawfully that which can not be done lawfully.” When the resolution reached the Senate, Senator Augustus Bacon sarcastically remarked that the “friends of annexation, seeing that it was not possible to make this treaty in the manner pointed out by the Constitution, attempted then to nullify the provision in the Constitution by putting that treaty in the form of a statute, and here we have embodied the provisions of the treaty in the joint resolution which comes to us from the House.” Senator William Allen added, “[t]he Constitution and the statutes are territorial in their operation; that is, they can not have any binding force or operation beyond the territorial limits of the government in which they are promulgated.” He later reiterated, “I utterly repudiate the power of Congress to annex the Hawaiian Islands by a joint resolution.”

Despite these objections the Congress passed the joint resolution and President McKinley signed it into law on July 7, 1898. This notwithstanding, the Department of Justice in 1988 concluded in a legal opinion, 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.”

Since the United States failed to carry out its obligation to reinstate the Executive Monarch and her Cabinet, under the executive agreement concluded with the Cleveland administration, the McKinley administration took complete advantage of its puppet called the Republic of Hawai‘i, and deliberately violated Hawaiian neutrality during the war. This served as leverage to force the hand of Congress to pass the joint resolution purporting to annex a foreign State. This was revealed while the Senate was in secret session on May 31, 1898, where Senator Lodge argued that the “[a]dministration was compelled to violate the neutrality of those islands, that protests from foreign representatives had already been received, and complications with other powers were threatened, that the annexation or some action in regard to those islands had become a military necessity.”

The transcripts of the secret session would not be made public until January 1969, after a historian noted there were gaps in the Congressional records. The transcripts were made public after the Senate passed a resolution authorizing the U.S. National Archives to open the records. The Associated Press in Washington, D.C., reported that “the secrecy was clamped on during a debate over whether to seize the Hawaiian Islands—called the Sandwich Islands then—or merely developing leased areas of Pearl Harbor to reinforce the U.S. fleet in Manila Bay.”

In violation of international law and the treaties with the Hawaiian Kingdom, the United States maintained the insurgents’ control until the Congress could reorganize its puppet. By statute, the Congress changed the name of the Republic of Hawai‘i to the Territory of Hawai‘i on April 30, 1900. Later, on March 18, 1959, the Congress, again by statute, changed the name of the Territory of Hawai‘i to the State of Hawai‘i. According to the U.S. Supreme Court, however, “[n]either the Constitution nor the laws passed in pursuance of it have any force in foreign territory,” which renders these congressional acts ultra vires. Of significance is this Court’s Article III status that derives from Section 9(a) of the 1959 Statehood Act.

Under the maxim ex injuria jus non oritur, FGDs’ argument that “[t]he United States annexed Hawaii in 1898, and Hawaii entered the union as a state in 1959” fails to constitute “a valid demonstration of legal rights, or sovereignty, on the part of the United States.” Therefore, the United States has provided no “facts sustaining its rebuttal” of the continuity of the Hawaiian State. Furthermore, under international law, the 1898 joint resolution of annexation and the 1959 Statehood Act, are considered internationally wrongful acts, and the FGDs are estopped from asserting that it is the legitimate sovereign over the Hawaiian Islands.

IV. DEFENDANTS ARE PRECLUDED FROM INVOKING ITS INTERNAL LAW AS A JUSTIFICATION FOR NOT COMPLYING WITH ITS INTERNATIONAL OBLIGATIONS

When the United States assumed control of its installed puppet under the new title of Territory of Hawai‘i in 1900, and later the State of Hawai‘i in 1959, it surpassed “its limits under international law through extraterritorial prescriptions emanating from its national institutions: the legislature, government, and courts.” The purpose of this extraterritorial prescription was to conceal the belligerent occupation of the Hawaiian Kingdom and bypass their duty to administer the laws of the occupied State in accordance with customary international law at the time, which was later codified under Article 43 of the 1907 Hague Regulations. According to Professor Benvinisti, “[t]he occupations of Hawaii, The Philippines, and Puerto Rico reflected the same unique US view on the unlimited authority of the occupant.” This extraterritorial application of American municipal laws is prohibited by the rules of jus in bello.

The occupant may not surpass its limits under international law through extra-territorial prescriptions emanating from its national institutions: the legislature, government, and courts. The reason for this rule is, of course, the functional symmetry, with respect to the occupied territory, among the various lawmaking authorities of the occupying state. Without this symmetry, Article 43 could become meaningless as a constraint upon the occupant, since the occupation administration would then choose to operate through extraterritorial prescription of its national institutions.

According to Article 27 of the 1969 Vienna Convention on the Law of Treaties, FGDs are prohibited from “invok[ing] the provisions of its internal law as justification for its failure to perform a treaty,” which is Article 43 of the 1907 Hague Regulations. Although the United States has not ratified the Vienna Convention, U.S. foreign relations law pronounced the rule that no State may invoke its internal law as justification for the nonobservance of a treaty by which it is bound. In Coplin v. United States, the Supreme Court referred to the U.S. government’s brief in Weinberger v. Rossi: “[a]though the Vienna Convention is not yet in force for the United States, it has been recognized as an authoritative source of international treaty law by the courts…and the executive branch.” The court was referring to Article 27 of the Vienna Convention. “The first sentence of article 27 gives expression to a well-established principle of international law that a State may not evade its international obligations by pleading its own law as an excuse for noncompliance.” While the Federal Rules of Civil Procedures and the Local Rules of the Court are not internal law, they are administrative rules that do not have binding force but are instructional for the purposes of these proceedings until the Court transforms itself into an Article II Court and declare these rules to be binding.

V. DISTINGUISHING THE INSTITUTIONAL JURISDICTION OF THE PERMANENT COURT OF ARBITRATION FROM THE SUBJECT MATTER JURISDICTION OF THE LARSEN ARBITRAL TRIBUNAL

FGDs erred when they stated that “[c]entral to Professor Lenzerini’s opinion is an arbitration between an individual, Lance Larsen, and the Plaintiff before the Permanent Court of Arbitration (“PCA”) at the Hague, which Plaintiff and Professor Lenzerini believe is a tacit acknowledgment of Plaintiff’s status as a sovereign entity. However, the final arbitral award from the PCA in this dispute, issued on February 5, 2001, explicitly stated that, ‘in the absence of the United States of America [as a party] the Tribunal can neither decide that Hawaii is not part of the USA, nor proceed on the assumption that it is not.’”

Plaintiff is puzzled by this statement, given Plaintiff’s previous pleadings clearly distinguishes between the institutional jurisdiction of the PCA and the subject matter jurisdiction of the arbitral tribunal. What are the undisputed facts is that a notice of arbitration was filed by Larsen’s counsel with the International Bureau of the PCA on November 8, 1999, and that six months later the International Bureau, by virtue of Article 47 of the 1907 Convention for the Pacific Settlement of International Disputes (“1907 Convention”), established the arbitral tribunal on June 9, 2000. Professor Lenzerini, in his opinion attached to Plaintiff’s motion for judicial notice, addressed the actions taken by the International Bureau of the PCA prior to the formation of the arbitral tribunal, which the civil law tradition explains from an evidentiary standpoint, and not the arguments of the arbitral tribunal, which did not have subject matter jurisdiction because of the indispensable third-party rule. Without the Hawaiian Kingdom being a juridical fact, the International Bureau could not have completed the juridical act of establishing the arbitral tribunal in the first place.

The institutional jurisdiction of the International Criminal Court (“ICC”) was also recently the central issue relating to the “Situation in the State of Palestine.” Like Article 47 of the 1907 Convention, Article 12(2)(a) of the Rome Statute grants the ICC the authority to “exercise its jurisdiction” to investigate international crimes within the territory of a State Party to the Statute. Professor Malcolm Shaw authored an amicus curiae brief filed with the ICC’s Pre-Trial Chamber I on March 16, 2020, that addressed the question of Palestinian Statehood. According to Shaw:

[W]hether or not Palestine is a state is actually critical to defining and determining the Court’s territorial jurisdiction in this matter. If Palestine is not a state, then it cannot have sovereignty over territory and cannot come within the terms of article 12 of the Statute. Thus, in the absence of clear and irrefutable evidence of Palestine’s existence as a state and taking into account the lack of an international consensus in this regard, both quantitative and qualitative, the Court cannot assert that there is such a state at this point in time.

Article 12 does not refer to the subject matter jurisdiction of an ICC trial court, but rather provides institutional jurisdiction for the Prosecutor of the ICC to investigate international crimes that may or may not go to trial. Similarly, Article 47 does not refer to the subject matter jurisdiction of the arbitral tribunal, but rather provides the institutional jurisdiction for the International Bureau to form the arbitral tribunal to resolve an international dispute.

VI.  CONCLUSION

The FGDs have provided no legal basis for the Court to grant FGDs’ cross-motion to dismiss. While this Court has yet to transform itself from an Article III Court to an Article II Court, the Plaintiff perceives this Court to be in a state of due diligence regarding Plaintiff’s motion for judicial notice. In the meantime, neither the Plaintiff nor the FGDs can get relief for their amended complaint and cross-motion to dismiss, respectively, until the Court possesses subject matter and personal jurisdiction as an Article II Court pursuant to Pennoyer v. Neff.

On September 30, 2021, Magistrate Judge Rom A. Trader issued an Order granting the Motion for Leave to File Amended Amicus Curiae Brief on Behalf of Nongovernmental Organizations with Expertise in International Law and Human Rights Law [ECF 90]. Amici filed their Amended Amicus Curiae Brief on October 6, 2021 [ECF 96]. Before the Court can address FGDs’ motion to dismiss it must first transform itself into an Article II Court for the reasons stated in the filed Amicus Brief, which is “trustworthy evidence of what [international] law really is.”

Therefore, this Court is bound by treaty law to take affirmative steps to transform itself into an Article II Court by virtue of Article 43 of the 1907 Hague Regulations, just as the International Bureau of the PCA established the arbitral tribunal by virtue of Article 47 of the 1907 Convention because of the juridical fact of the Hawaiian Kingdom’s existence as a State. This Court is bound to transform itself into an Article II Court because it is situated within the territory of the Hawaiian Kingdom and not within the territory of the United States. Furthermore, FGDs have provided no rebuttable evidence to the contrary other than invoking its internal laws as justification for not complying with its international obligations, which are barred by customary international law and treaty law.

Clerk Enters Default for State of Hawai‘i Officials in Hawaiian Kingdom v. Biden and U.S. Files Response to Judicial Notice of Civil Law

Yesterday, the Clerk of the United States District Court for the District of Hawai‘i entered default for the State of Hawai‘i, Governor David Ige, Securities Commissioner Ty Nohara, and Director of the Department of Taxation Isaac Choy, in federal lawsuit Hawaiian Kingdom v. Biden.

In talks with Hawaiian Kingdom Attorney General Dexter Ka‘iama, the State of Hawai‘i Attorney General’s office requested an extension of time to file a response to the Amended Complaint that was filed on August 11, 2021. It was mutually agreed that the filing of a response was due no later than January 10, 2022.

The entry of default against the State of Hawai‘i and its officials prevents them from participating in the proceedings, and, more importantly, an entry of default is an acceptance of the allegations made against them by the Hawaiian Kingdom to be true. The next step is for the Hawaiian Kingdom to file a motion with the Court for default judgment so that it can grant the relief as stated in the Amended Complaint.

Before the Hawaiian Kingdom can file a motion for default judgment, the Court needs to first transform itself into an Article II Occupation Court so that it has jurisdiction over the case.

The Hawaiian Kingdom’s Motion for Judicial Notice of Civil Law on Juridical Fact of the Hawaiian State and the Consequential Juridical Act by the Permanent Court of Arbitration is critical for the Court to transform itself into an Article II Occupation Court, similar to Federal Article II Courts that were established in occupied Germany from 1945-1955.

The Hawaiian Kingdom did not file a Motion for Judicial Notice but rather a Request for Judicial Notice of the Civil Law. It was the Court that transformed the Request into a Motion and gave a timeline for the United States to respond and the Hawaiian Kingdom to reply to that response. A Request for Judicial Notice is considered by the Court alone. The United States filed their response on January 14, 2022, and the Hawaiian Kingdom is preparing to file their reply on January 28.

Instead of refuting the information provided in the Motion for Judicial Notice, the United States argues that it is the legitimate sovereign over the Hawaiian Islands because the “United States annexed Hawaii in 1898, and Hawaii entered the union as a state in 1959.” From this position it then argues that this “Court, the Ninth Circuit, and the courts of the state of Hawaii have repeatedly ‘rejected arguments asserting Hawaiian sovereignty’ distinct from its identity as a part of the United States.”

The Hawaiian Kingdom views the actions taken by the Court regarding the Motion for Judicial Notice as a matter of due diligence on the part of the Court, and, therefore, will be responding to the United States arguments and show why it is without merit.

The legal status of the Hawaiian Kingdom as an independent State predates, not postdates, 1898. The United States fails to address in its filing that President John Tyler on July 6, 1844, explicitly recognized the Hawaiian Kingdom as an independent State by letter from Secretary of State John C. Calhoun to the Hawaiian Commission. This was confirmed by the arbitral tribunal in Larsen v. Hawaiian Kingdom:

“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.”

On January 17, 1893, by an act of war, the United States unlawfully overthrew the government of the Hawaiian Kingdom. President Grover Cleveland entered into an executive agreement with Queen Lili‘uokalani on December 18, 1893, in attempt to restore the government but was politically prevented from doing so by members of Congress. The failure to restore the government, however, did not affect the legal status of the Hawaiian Kingdom as a sovereign and independent State under international law.

In Texas v. White, the Supreme Court stated that a “‘state,’ in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed.” The Supreme Court further stated that a “plain distinction is made [in the U.S. Constitution] between a State and the government of a State.”

Therefore, when the rebels seized control of the Texas government and joined the Confederacy in the Civil War it did not affect or change the State of Texas under the U.S. Constitution. The Supreme Court’s position is consistent with international law where the “state must be distinguished from the government. The state, not the government, is the major player, the legal person, in international law.”

According to Judge Crawford, “Pending a final settlement of the conflict, belligerent occupation does not affect the continuity of the State. The governmental authorities may be driven into exile or silenced, and the exercise of the powers of the State thereby affected. But it is settled that the powers themselves continue to exist. This is strictly not an application of the ‘actual independence’ rule but an exception to it…pending a settlement of the conflict by a peace treaty or its equivalent.” There is no peace treaty or its equivalent between the Hawaiian Kingdom and the United States.

In its reply, the Hawaiian Kingdom will expound on the legal presumption of continuity of the Hawaiian Kingdom as a State under international law, why the United States cannot invoke its internal law as a justification for not complying with international obligations, and distinguishing the institutional jurisdiction of the Permanent Court of Arbitration from the subject matter jurisdiction of the Larsen v. Hawaiian Kingdom arbitration tribunal, when it acknowledged the continued existence of the Hawaiian Kingdom as a juridical fact.

UPDATE: Federal Government Given Extension to File Opposition to Hawaiian Kingdom’s Motion for Judicial Notice of Civil Law

On December 16, 2021, United States Magistrate Judge Rom Trader issued an order allowing the United States to file their Response Memorandum to the Hawaiian Kingdom’s Motion for Judicial Notice of Civil Law regarding the action taken by the International Bureau of the Permanent Court of Arbitration acknowledging the Hawaiian Kingdom as a non-Contracting State to the 1907 Convention on the Pacific Settlement of International Disputes from December 16, 2021 to January 14, 2022. The Hawaiian Kingdom will need to file their Reply in support of their Motion for Judicial Notice by January 28, 2022.

The United States will also be filing a Motion to Dismiss the complaint on the same day their Response is due. The Hawaiian Kingdom is scheduled to file their Opposition to the Motion Dismiss on the same day they will be filing their Reply in support of their Motion for Judicial Notice. The United States will then file their Reply in support of their Motion to Dismiss by February 11, 2022.

Judge Trader’s order confirmed a Stipulation Agreement entered into between Dexter Ka‘iama, Attorney General for the Hawaiian Kingdom, and Michael J. Gerardi, Trial Attorney, U.S. Department of Justice. The Stipulation Agreement stated:

In light of the Court’s decision to convert Plaintiff’s request for judicial notice into a motion, the impending deadlines for responding to the complaint and the Rule 16 conference, and the forthcoming federal holidays of Christmas and New Year’s Day, good cause exists to modify the current deadlines. Resolution of the Plaintiff’s pending motion and of Defendants’ motion to dismiss may obviate the need for a Rule 16 conference. Defendants further state that they need additional time to consult with representatives of multiple government agencies, as well as supervisory officials within the Department of Justice, to prepare the necessary filing. Moreover, many federal officials are likely to be unavailable during the holiday season due to preplanned leave.

Gerardi disclosed to Attorney General Ka‘iama that the basis for their Motion to Dismiss would argue that federal courts have already determined that the Hawaiian Kingdom does not exist and, therefore, it presents a political question that would require presiding Judge Leslie Kobayashi to dismiss the case. The political question doctrine applies only to Article III Courts, which are federal courts within the territory of the United States. It does not apply to federal courts established outside of the United States, which are called Article II Courts.

The doctrine prevents the federal courts from determining the question of sovereignty over territory because that determination is committed to the political branches of the federal government. If there is a question of sovereignty over Native American tribal lands the political branch to determine that question in the affirmative would be the legislative branch—the Congress by virtue of federal recognition. If the question of sovereignty concerns a country outside of the United States it would be the executive branch, headed by the President, recognizing a territory as an “independent and sovereign State.”

It would appear that Gerardi is not aware that President Tyler on July 6, 1844 explicitly recognized the Hawaiian Kingdom as an independent State by letter from Secretary of State John C. Calhoun to the Hawaiian Commission comprised of Timoteo Ha‘alilio and William Richards. While in the Washington, D.C., the Hawaiian Commission sent a letter dated December 14, 1842, to Secretary of State Daniel Webster requesting that the United States recognize the Hawaiian Kingdom as a “sovereign and independent State.”

On December 19th, Secretary of State Webster responded by stating that President Tyler is “willing to declare, as the sense of the Government of the United States, that the Government of the Sandwich Islands [Hawaiian Islands] ought to be respected; that no power ought either to take possession of the islands as a conquest, or for the purpose of colonization, and that not power ought to seek for any undue control over the existing Government, or any exclusive privileges or preferences in matters of commerce.” He further stated, “the President does not see any present necessity for the negotiation of a formal treaty, or the appointment or reception of diplomatic characters.” The use of the term “ought” is not conclusive as “shall.”

His his message to the House of Representatives on December 31, 1842, President Tyler stated that the United States “is content with its independent existence,” but did not explicitly recognize the Hawaiian Kingdom as a “sovereign and independent State” as required by customary international law. President Tyler did not declare the United States’ recognition of Hawaiian independence, which prompted to the Hawaiian Commission to travel to Europe to seek explicit recognition from Great Britain and France.

On November 28, 1843, the Hawaiian Commission was able to secure formal recognition of the Hawaiian Kingdom as a “sovereign and independent State” from Great Britain and France by a formal joint proclamation. While in Washington, D.C., after returning from Europe, the Hawaiian Commission sent another letter to Secretary of State Calhoun, who succeeded Webster, on July 1, 1844, inquiring whether the United States considered its “various acts in relation to the Sandwich Islands as a full and perfect recognition of independence.”

Secretary of State Calhoun responded to the Hawaiian Commission on July 6, 1844. He wrote that the appointment of a United States Commissioner to the Hawaiian Islands was “regarded by the President as a full recognition on the part of the United States, of the Independence of the Hawaiian Government.” A Treaty of Friendship, Commerce and Navigation between the Hawaiian Kingdom and the United States was signed in Washington, D.C., on December 20, 1849.

There is no political question for the United States to raise in its Motion to Dismiss because the United States, by its President, formally recognized the Hawaiian Kingdom as a sovereign and independent State. On December 18, 1893, President Grover Cleveland acknowledged the United States’ overthrow of the government of the Hawaiian Kingdom was an act of war and unlawful. The overthrow of the Government of an independent State does not equate to the overthrow of the State itself and its existence. The State would still exist and the situation would be called “belligerent occupation.”

This is precisely what occurred when the Allied Powers occupied Germany from 1945-1955 after the Nazi government of Germany was militarily overthrown. According Professor Ian Brownlie:

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.

UPDATE: Federal Court Issues Minute Order regarding Hawaiian Kingdom’s Request for Judicial Notice of Civil Law

After reviewing the Hawaiian Kingdom’s Request for Judicial Notice regarding Civil Law on the “Juridical Fact” of the Hawaiian State and the Consequential “Juridical Act” by the Permanent Court of Arbitration, District Court Judge Leslie Kobayashi issued a Minute Order today setting dates for additional filings. Judge Kobayashi will be considering the Request for Judicial Notice as a Non Hearing Motion.

The Order stated that Defendants have until December 21, 2021 to file a Response Memorandum to the Hawaiian Kingdom’s Request for Judicial Notice of Civil Law. The Plaintiff, if it chooses, will need to file a Reply Memorandum by January 4, 2022. After the parties file their submissions, the “Court to issue Order.”

Hawaiian Kingdom Files Request for Federal Court to take Judicial Notice of Civil Law

At the center of the federal lawsuit is the court’s jurisdiction, which is its authority to preside over the case. Without proper jurisdiction or authority, the Court cannot make any decision regarding the Hawaiian Kingdom’s allegations in its Amended Complaint, or even any substantive issues raised by the defendants through motions or statements of interest. In its Amended Complaint, the Hawaiian Kingdom explained:

3. While this court is operating within the territory of the HAWAIIAN KINGDOM and not within the territory of Defendant UNITED STATES OF AMERICA, its jurisdiction is found as a de facto Article II Court. According to Professor Bederman:

What, then, is distinctive about a court established under Article II of the Constitution? First, executive tribunals are established without an act of Congress or any other form of legislative concurrence. Congressional intent concerning the status of a presidential court is irrelevant because no congressional approval is needed. The fact that the President alone can create an executive court places it outside the scope of Article III of the Constitution, which demands that Congress shall establish courts inferior to the Supreme Court. Second, the executive courts are created pursuant only to the power and authority granted to the President in Article II of the Constitution. In practice, the only presidential power that would call for the creation of a court is that arising from his responsibility as Commander in Chief of the armed services and his subsequent war-making authority.

4. The authority for this Court to assume jurisdiction as a de facto Article II Court is fully elucidated in the Amicus Curiae brief previously lodged in these proceedings by virtue of the Motion for Leave to File Amicus Curiae Brief on July 30, 2021 [ECF 45] by the International Association of Democratic Lawyers (IADL), the National Lawyers Guild (NLG), and the Water Protector Legal Collective (WPLC). The Amicus brief is instructional for the Court to transition to a de facto Article II Court.

5. An Article II Court was established in Germany after hostilities ceased in 1945 during the Second World War. After the surrender, western Germany came under belligerent occupation by the United States, France and Great Britain. The military occupation officially came to an end on May 5, 1955, with the entry into force of peace treaties called the Bonn Conventions between the Federal Republic of Germany and the three Occupying States. During the occupation, these Article II Courts had jurisdiction “over all persons in the occupied territory,” except for Allied armed forces, their dependents, and civilian officials, for “[a]ll offenses against the laws and usages of war[,] […] [a]ll offenses under any proclamation, law, ordinance, notice or order issued by or under the authority of the Military Government or of the Allied Forces, [and] [a]ll offenses under the laws of the occupied territory or any part thereof.”

6. Like the Article II Court in Germany, this Court has Jurisdiction as a de facto Article II Court because this action arises under international humanitarian law—law of armed conflict, which include the 1907 Hague Convention, IV (1907 Hague Regulations), the 1907 Hague Convention, V, the 1949 Geneva Convention, IV (1949 Fourth Geneva Convention), and Hawaiian Kingdom law. Article 43 of the 1907 Hague Regulations states:

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

7. The Court is authorized to award the requested declaratory and injunctive relief as a de facto Article II Court because it is situated within the territory of the HAWAIIAN KINGDOM that has been under a prolonged belligerent occupation by the United States of America since January 17, 1893.

On August 17, 2021, the International Association of Democratic Lawyers (IADL), the National Lawyers Guild (NLG) and the Water Protector Legal Collective (WPLC) filed a motion for permission to file an amicus curiae brief with the U.S. District Court for the District of Hawai‘i in support of the Hawaiian Kingdom’s complaint against U.S. President Biden and others for violations of international law, the commission of war crimes, and human rights violations in its prolonged occupation of the Hawaiian Kingdom. The motion was filed after the Hawaiian Kingdom filed its Amended Complaint on August 11, 2021.

An amicus curiae is “one (such as a professional person or organization) that is not a party to a particular litigation but that is permitted by the court to advise it in respect to some matter of law that directly affects the case in question.” The amicus brief was attached to the motion for the court to consider. In its request for permission, the IADL-NLG-WPLC stated:

1. The nongovernmental organizations whose views are represented in this brief have expertise in public international law, international human rights, humanitarian law, and norms regarding statehood, sovereignty, and self-determination.

2. Movants submit this brief to ensure a proper understanding and application of the international law and historical precedent relevant to this case regarding Article II occupation courts. The amici are additionally human rights organizations that have an interest in ensuring an informed interpretation of international human rights law in domestic jurisprudence.

On September 30, 2021, Federal Magistrate Rom Trader issued an Order granting permission for the IADL-NLG-WPLC to file their amicus brief that supports the Hawaiian Kingdom’s claim that the Court must transform itself into an Article II Court. By granting permission, the Court will not only utilize the amicus brief to assist in its decision regarding its transformation into an Article II Court, but it also acknowledges the merit of the IADL-NLG-WPLC’s argument. If it were a frivolous argument, the Court would not have granted permission to file the brief because granting permission is at the discretion of the Court. The Court was able to issue this Order without having resolved its jurisdiction, because the brief addresses jurisdiction for the Court to consider when it transforms itself into an Article II Occupation Court.

The IADL-NLG-WPLC filed their amicus brief on October 6, 2021 and opened with:

The purpose of this brief is to bring to the Court’s attention customary international law norms and judicial precedent regarding Article II occupation courts that bear on the long-standing belligerent occupation of the Hawaiian Kingdom by the United States at issue in this case.

In assessing the legality of the US occupation of Hawai‘i, the Court should be cognizant of customary international law and international human rights treaties that are incorporated into domestic law by virtue of Article VI, section 2 of the Constitution (the “Supremacy Clause”). International law, which includes treaties ratified by the United States as well as customary international law, is part of U.S. law and must be faithfully executed by the President and enforced by U.S. courts except when clearly inconsistent with the U.S. Constitution or subsequent acts of Congress.

The question here is not whether the Hawaiian Kingdom has standing in an Article III court. The question is whether this court can sit as an Article II occupation court and whether the claims of the Hawaiian Kingdom can be redressed. The answer to both questions is yes.

It is evident that the Court has accepted the arguments that it is not properly constituted because it is located in the territory of the Hawaiian Kingdom and not within the territory of the United States. Adding to the serious consequences of this case was the closure of three consulates of the Czech Republic, Finland, and India. This prompted the United States Department of Justice to file a Statement of Interest on November 5, 2021, that was asking the Court to dismiss the thirty consulates from the lawsuit because the United States claimed they had immunity.

Of the summons that were served, 12 foreign consulates failed to respond within 21 days and entries of default were entered by the Clerk of the Court.  These foreign consulates include AustriaBelgiumChileGermanyJapanLuxembourgNetherlandsNorwayPhilippinesSouth KoreaSpain, and Thailand. Default is where a defendant has failed to defend against a claim that has been brought by the filing of a complaint. By default, these foreign consulates accept the allegation of the Hawaiian Kingdom that it is true they are unlawful. The next stage is to get a judgment of default by the judge so that they can be ordered to close. The Hawaiian Kingdom, however, is prevented from filing a motion for judgment of default because the Court is not an Article II Court that operates in territory belligerently occupied by the United States.

The Hawaiian Kingdom filed a Response to the United States Statement of Interest on November 7, 2021, stating the consulates cannot claim to be immune from the lawsuit because they were never lawful under international law to begin with because the Hawaiian Kingdom did not give its permission to have the consulates established within its territory. Rather, these consulates, as stated by the United States in its Statement of Interest, were established by the United States Department of State. In its Response, the Hawaiian Kingdom also maintained that the “Court is compelled by international and U.S. constitutional law to first transform itself from an Article III Court to a de facto Article II Court before it may lawfully assert subject-matter and personal jurisdiction to address any of the issues raised.” 

On November 29, 2021, the Hawaiian Kingdom filed a Supplemental Response to the United States’ Statement of Interest that explained the significance of the action taken by the Permanent Court of Arbitration (PCA) through the civil law tradition of understanding of the “juridical fact” of the Hawaiian Kingdom’s continued existence under the rules of customary international law, and the consequential “juridical act” by the International Bureau of the PCA that acknowledged the Hawaiian Kingdom’s existence, which authorized the PCA to form an arbitral tribunal on June 9, 2000 to resolve the dispute in Larsen v. Hawaiian Kingdom.

Here is a link to an explanation by the University of California, Berkeley Law School of the civil law tradition and the common law and why they are distinct. The United States and the Hawaiian Kingdom are common law systems where juries determine “facts” and the judges determine “laws.” In a civil law system, there are no juries and the judge determines both laws and facts, which is why there are certain facts, called “juridical facts,” that create legal consequences, as opposed to other facts that don’t create legal consequences.

The Supplemental Response also explained the consequences of the United States and the thirty countries that have their consulates named in the lawsuit of serving on the PCA’s Administrative Council and acknowledged the Hawaiian Kingdom as a non-Contracting State to the 1907 Hague Convention under customary international law, opinio juris.

Yesterday, the Hawaiian Kingdom filed a Request for Judicial Notice regarding Civil Law on the “Juridical Fact” of the Hawaiian State and the Consequential “Juridical Act” by the Permanent Court of Arbitration. Attached to the Request is a legal opinion by Professor Federico Lenzerini from the University of Siena, Italy, which is a civil law country. In its Request, the Hawaiian Kingdom stated:

Plaintiff HAWAIIAN KINGDOM hereby requests that, pursuant to FRCP Rule 44.1, the Court take judicial notice of the civil law regarding the juridical act of the Permanent Court of Arbitration (“PCA”) recognizing the juridical fact of the Statehood of the Hawaiian Kingdom and the Council of Regency as its government.

Attached to the accompanying declaration as Exhibit “1” is an expert opinion of Professor Federico Lenzerini, a professor of international law at the University of Siena, Italy. Italy’s legal system is civil law and Professor Lenzerini is very familiar with the civil law tradition providing the ontological legal basis of the juridical fact of the Statehood of the Hawaiian Kingdom and the Council of Regency as its government, and of the juridical act taken by the PCA within the “reasonings and analogies of the…civil law.” Furthermore, the PCA is situated in the Netherlands, which is a civil law country like Italy.

Plaintiff contends, in support of its amended complaint for declaratory and injunctive relief, that the Court’s transformation to an Article II Court has a direct nexus to the PCA’s juridical act of acknowledging the Hawaiian Kingdom, a juridical fact, as a non-Contracting State to the 1907 Hague Convention for the Pacific Settlement of International Disputes. Accordingly, in support of said allegations and such evidence, Plaintiff requests that the Court takes judicial notice of the relevant provisions of the civil law regarding juridical facts and juridical acts.

FRCP Rule 44.1 provides as follows:

A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination shall be treated as a ruling on a question of law.


The recent filing brings in an expert’s legal opinion on the role that civil law had when the International Bureau of the PCA acknowledged the Hawaiian Kingdom’s continued existence as a State to be a “juridical fact.” Civil law refers to the action taken by the International Bureau as a “juridical act.” The International Bureau is headed by a Secretary General who is Dutch by nationality, and that the Netherlands, like Italy, is a civil law system. In other words, the Secretary General would have been familiar with a “juridical fact” and the consequential “juridical act” in accepting the international dispute of Larsen v. Hawaiian Kingdom under the jurisdiction of the PCA. In his legal opinion, attached to the Hawaiian Kingdom Request for the Court to take judicial notice, Professor Lenzerini explains:

According to a civil law perspective, the juridical act of the International Bureau of the PCA instituting the arbitration in the case of Larsen v. Hawaiian Kingdom may be compared – mutatis mutandis – to a juridical act of a domestic judge recognizing a juridical fact (e.g. filiation) which is productive of certain legal effects arising from it according to law. Said legal effects may include, depending on applicable law, the power to stand before a court with the purpose of invoking certain rights. In the context of the Larsen arbitration, the juridical fact recognized by the PCA in favour of the Hawaiian Kingdom was its quality of State under international law. Among the legal effects produced by such a juridical fact, the entitlement of the Hawaiian Kingdom to be part of an international arbitration under the auspices of the PCA was included, since the existence of said juridical fact actually represented an indispensable condition for the Hawaiian Kingdom to be admitted in the Larsen arbitration, vis-à-vis a private entity (Lance Paul Larsen). Consequently, the International Bureau of the PCA carried out the juridical act consisting in establishing the arbitral tribunal as an effect of the recognition of the juridical fact in point. Likewise, e.g., the recognition of the juridical fact of filiation by a domestic judge, also the recognition of the Hawaiian Kingdom as a State had in principle retroactive effects, in the sense that the Hawaiian Kingdom did not acquire the condition of State per effect of the PCA’s juridical act. Rather, the Hawaiian Kingdom’s Statehood was a juridical fact that the PCA recognized as pre-existing to its juridical act.

It is expected that the Court will take judicial notice of the civil law as explained by Professor Lenzerini. By doing so, the Court would appear to be moving closer to transforming itself into an Article II Court in accordance with the international law of occupation.

Hawaiian Kingdom Files Supplemental Response to U.S. Statement of Interest in Hawaiian Kingdom v. Biden

The day after celebrating Hawaiian Independence Day (Lā Kūʻokoʻa), the Hawaiian Kingdom filed a Supplemental Response to the United States Statement of Interest that the Department of Justice filed on November 5, 2021.

In its Supplemental Response, the Hawaiian Kingdom opened with:

The Plaintiff would like to expand on what it stated in its conclusion that the “jurisdiction of the Court as an Article II Court is consequential to the existence of the Hawaiian Kingdom as a State,” by drawing the Court’s attention to the consequences of the United States and those States whose Consulates are Defendants in this case that did not object to the Permanent Court of Arbitration (“PCA”), by its International Bureau, of its juridical act of acknowledging the Hawaiian Kingdom’s existence as a non-Contracting State, is a reflection of customary international law and the practice of States—opinio juris, thereby precluding the United States and Defendant foreign Consulates from denying otherwise.

The Plaintiff hereafter explains the significance of the PCAʻs juridical act by tying it directly to the continuity of the Hawaiian Kingdom as a juridical fact through the application of the civil law, as opposed to the common law, in international proceedings.

Throughout the world there are different legal systems. The predominant legal system is called citizens law or civil law, which draws from Roman law and spread throughout continental Europe. It developed over time on the basis of general principles that derived from a book titled Corpus Iuris Civilis (Body of Civil Law) and a set of universities. Great Britain, however, operates under a common law system derived from centuries of judge made law. The underlying difference is civil law is made by citizens and common law is made by judges. There are nearly 150 countries that have a civil law legal system.

The Hawaiian Kingdom also stated in its Supplemental Response the impact that the civil law had and continues to have in international law and international institutions such as the PCA.

According to Professor Picker, “[t]here is a wide degree of support for the proposition that civil law has served as the most significant influence on international law.” He goes on to state that “some would even argue that international law is essentially a civil law system.” And Professor Nagle explains, “[i]t is the civil-law traditions that have most widely influenced international law [and] international organizations.” Furthermore, as stated by Professors Merryman and Clark, “[t]he civil law was the legal tradition familiar to the Western European scholar-politicians who were the fathers of international law. The basic charters and the continuing legal development and operation of the European Communities are the work of people trained in the civil law tradition.”

Of the 44 Contracting States to the 1907 Convention that established the PCA at the Hague Conference in 1907, the United States and Great Britain, as common law States, were the only States that were not from a civil law tradition. The other 42 States were represented by men who were “trained in the civil law tradition.” This includes the Netherlands where the PCA is situated in its city The Hague. The current number of Contracting States to the 1907 Convention is 122, the majority of which are based on the civil law tradition.

Therefore, it stands to reason that the action taken by the PCA in acknowledging the continuity of the Hawaiian Kingdom as a State for purposes of its institutional jurisdiction should be viewed through the reasonings of the civil law tradition as opposed to the common law.

The two legal systems deal with evidence differently mainly because there are no juries in the civil law system. Jury trials originated in England. In the common law system, the judge determines the law and its effect, but the jury determines the facts. In the civil law system, because there is no jury, certain facts can create a juridical or legal effect. Juridical is another word for legal.

In the civil law system, the opposing parties argue points of law and the judge controls the gathering of evidence or facts. While in the common law system, the parties to the conflict gathers evidence to support their side of the argument. The judge does not get involved with evidence except to ensure the introduction of evidence is according to certain rules. In its Supplemental Response, the Hawaiian Kingdom explains how facts work in a civil law system:

In the civil law tradition, a fact is juridical or legal when it produces a legal effect, by virtue of a legal rule. In Schexnider v. McDermott Int’l Inc., the federal court in Louisiana stated juridical facts are defined as “events having prescribed legal effects.” According to the German tradition of the civil law, a juridical act, which is triggered by a juridical fact, “sets the law in motion and produces legal consequences.” Under American jurisprudence, the equivalent of a juridical act in the civil law tradition is judicial notice of a fact or facts.

The Hawaiian Kingdom, as an independent and sovereign State in continuity, is a juridical fact according to the civilian law. Both rights and powers held by a subject of international law may arise from a juridical fact, which is precisely what occurred when arbitral proceedings were initiated in Larsen v. Hawaiian Kingdom at the PCA, being a subject of international law. An arbitration agreement was entered into between Larsen and the Hawaiian Kingdom on October 30, 1999, and a notice of arbitration was filed by the claimant on November 8, 1999, with the PCA’s International Bureau. Access to the institutional jurisdiction of the PCA would only be triggered by the juridical fact of the Hawaiian Kingdom being a non-Contracting “State,” and not by Larsen as a “private party.” This juridical fact set in motion and produced legal consequences, which was the convening of the ad hoc arbitral tribunal on June 9, 2000.

Prior to the formation of the tribunal under the auspices of the PCA, as an intergovernmental organization and subject of international law, it required that the international dispute conform to the provisions of the 1907 Hague Convention on the Pacific Settlement of International Disputes (1907 Convention) as a matter of international law. Access to the auspices of the PCA are for Contracting and non-Contracting States, and the Hawaiian Kingdom is a non-Contracting State to the 1907 Convention. Private parties do not have access to the PCA unless sponsored by their State. In this case, the Plaintiff did not sponsor Larsen in its suit, but rather waived its sovereign immunity by consenting to submit their dispute to the PCA for resolution of the dispute by virtue of Article 47, which is a legal rule that provides for non-Contracting States to have access to the jurisdiction of the PCA.

The juridical fact of the Hawaiian State and its continuity produced a legal effect for the International Bureau of the PCA to do a juridical act of accepting the dispute under the auspices of the PCA by virtue of Article 47, being a legal rule. The international dispute between Larsen and the Hawaiian Kingdom was not created by the juridical fact, but rather the juridical fact determined the legal conditions for the PCA’s acceptance of the dispute, which is the juridical act by which the dispute is established in order to have access to the jurisdiction of the PCA.

The significance of the juridical act taken by the International Bureau acknowledging the Hawaiian Kingdom’s continued existence, is that the United States, as a member of the PCA Administrative Council, was fully aware of the Larsen case and did not object to the juridical act by the International Bureau. In fact, the United States entered into an agreement with the Council of Regency to access all records and pleadings of the case.

State continuity of the Hawaiian Kingdom is determined by the rules of customary international law. And while State members of the Administrative Council furnishes to all Contracting States “with an annual Report” in accordance with Article 49, it does represent “State practice [that] covers an act or statement by…State[s] from which views can be inferred about international law,” and it “can also include omissions and silence on the part of States.” The fact that the United States, to include all member States of the Administrative Council and those States whose consulates are Defendants in this case, did not object to the International Bureau’s juridical act of acknowledging the Hawaiian Kingdom’s existence as a non-Contracting State, is a reflection of the practice of States—opinio juris. Furthermore, the Administrative Council is a treaty-based component of an intergovernmental organization comprised of representatives of States, and “their practice is best regarded as the practice of States.”

In other words, the member States of the Administrative Council, by their failure to protest the International Bureauʻs juridical act of acknowledging the Hawaiian Kingdom as a State, is considered the practice of States, which is a part of customary international law. By their silence they admit that according to the rules of customary international law, the Hawaiian Kingdom continues to exist. It also acknowledges that the continued existence of the Hawaiian Kingdom is a juridical fact, and not just a fact.

In the civil law system not every fact produces legal consequences. A chair in the kitchen is a fact, but it doesn’t produce legal consequences. But the existence of a State, which is a subject of international law, is a juridical fact because it does produce legal consequences. The PCA’s juridical act is an acknowledgment that the existence of the Hawaiian Kingdom as a State is a juridical fact in the civil law system. The nearly 150 countries in the world that have a civil law legal system would have to accept that the Hawaiian Kingdom is a juridical fact by virtue of the juridical act done by the PCA. Juridical facts create juridical acts. A juridical act does not operate on its own. It has to stem from a juridical fact.

In common law States, like the United States, facts can produce legal consequences but the facts need to be recognized by a judge, which is called judicial notice. According to the Legal Information Institute, when “a court takes judicial notice of an indisputable fact in a civil case, the fact is considered conclusive.” When one of the parties in a federal lawsuit does not recognize the status of a country as an independent State, the court could, on its own, reach out to the U.S. State Department to see whether that country in question is a State, and take judicial notice of the determination by the State Department that it is a State for purposes of international law. Rule 201(b)(2) of the Federal Rules of Evidence provides that the “court may judicially notice a fact that is not subject to reasonable dispute because it…can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.”

In Hawaiian Kingdom v. Biden, the Magistrate Judge or the District Court Judge can, by judicial notice, recognize the continued existence of the Hawaiian Kingdom by virtue of the actions taken by the PCA because the PCA is a source “whose accuracy cannot reasonably be questioned.” This would then allow the federal court to transform itself into an Article II Court. In its conclusion, the Hawaiian Kingdom stated:

This Court is in the same situation as the PCA regarding jurisdiction as an institution. Where the PCA’s juridical act stems from the juridical fact of the Hawaiian State’s continued existence whereby the PCA established the arbitral tribunal pursuant to Article 47 of the 1907 Convention regarding jurisdiction, this Court, as a matter of jurisdiction, is capable of an Order taking judicial notice of the fact of the Hawaiian State’s continued existence that would grant this Court subject matter and personal jurisdiction pursuant to Article 43 of the 1907 Hague Regulations, where “[t]he authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”

National Holiday – Independence Day (November 28)

November 28th is the most important national holiday in the Hawaiian Kingdom. It is the day Great Britain and France formally recognized the Hawaiian Islands as an “independent state” in 1843, and has since been celebrated as “Independence Day,” which in the Hawaiian language is “La Ku‘oko‘a.” Here follows the story of this momentous event from the Hawaiian Kingdom Board of Education history textbook titled “A Brief History of the Hawaiian People” published in 1891.

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George Simpson
Haalilio

The First Embassy to Foreign Powers—In February, 1842, Sir George Simpson and Dr. McLaughlin, governors in the service of the Hudson Bay Company, arrived at Honolulu on business, and became interested in the native people and their government. After a candid examination of the controversies existing between their own countrymen and the Hawaiian Government, they became convinced that the latter had been unjustly accused. Sir George offered to loan the government ten thousand pounds in cash, and advised the king to send commissioners to the United States and Europe with full power to negotiate new treaties, and to obtain a guarantee of the independence of the kingdom.

Accordingly Sir George Simpson, Haalilio, the king’s secretary, and Mr. Richards were appointed joint ministers-plenipotentiary to the three powers on the 8th of April, 1842.

William Richards

Mr. Richards also received full power of attorney for the king. Sir George left for Alaska, whence he traveled through Siberia, arriving in England in November. Messrs. Richards and Haalilio sailed July 8th, 1842, in a chartered schooner for Mazatlan, on their way to the United States*

*Their business was kept a profound secret at the time.

Proceedings of the British Consul—As soon as these facts became known, Mr. Charlton followed the embassy in order to defeat its object. He left suddenly on September 26th, 1842, for London via Mexico, sending back a threatening letter to the king, in which he informed him that he had appointed Mr. Alexander Simpson as acting-consul of Great Britain. As this individual, who was a relative of Sir George, was an avowed advocate of the annexation of the islands to Great Britain, and had insulted and threatened the governor of Oahu, the king declined to recognize him as British consul. Meanwhile Mr. Charlton laid his grievances before Lord George Paulet commanding the British frigate “Carysfort,” at Mazatlan, Mexico. Mr. Simpson also sent dispatches to the coast in November, representing that the property and persons of his countrymen were in danger, which introduced Rear-Admiral Thomas to order the “Carysfort” to Honolulu to inquire into the matter.

Daniel Webster

Recognition by the United States—Messres. Richards and Haalilio arrived in Washington early in December, and had several interviews with Daniel Webster, the Secretary of State, from whom they received an official letter December 19th, 1842, which recognized the independence of the Hawaiian Kingdom, and declared, “as the sense of the government of the United States, that the government of the Sandwich Islands ought to be respected; that no power ought to take possession of the islands, either as a conquest or for the purpose of the colonization; and that no power ought to seek for any undue control over the existing government, or any exclusive privileges or preferences in matters of commerce.” *

*The same sentiments were expressed in President Tyler’s message to Congress of December 30th, and in the Report of the Committee on Foreign Relations, written by John Quincy Adams.

Aberdeen

Success of the Embassy in Europe—The king’s envoys proceeded to London, where they had been preceded by the Sir George Simpson, and had an interview with the Earl of Aberdeen, Secretary of State for Foreign Affairs, on the 22d of February, 1843.

Lord Aberdeen at first declined to receive them as ministers from an independent state, or to negotiate a treaty, alleging that the king did not govern, but that he was “exclusively under the influence of Americans to the detriment of British interests,” and would not admit that the government of the United States had yet fully recognized the independence of the islands.

Sir George and Mr. Richards did not, however, lose heart, but went on to Brussels March 8th, by a previous arrangement made with Mr. Brinsmade. While there, they had an interview with Leopold I., king of the Belgians, who received them with great courtesy, and promised to use his influence to obtain the recognition of Hawaiian independence. This influence was great, both from his eminent personal qualities and from his close relationship to the royal families of England and France.

Encouraged by this pledge, the envoys proceeded to Paris, where, on the 17th, M. Guizot, the Minister of Foreign Affairs, received them in the kindest manner, and at once engaged, in behalf of France, to recognize the independence of the islands. He made the same statement to Lord Cowley, the British ambassador, on the 19th, and thus cleared the way for the embassy in England.

They immediately returned to London, where Sir George had a long interview with Lord Aberdeen on the 25th, in which he explained the actual state of affairs at the islands, and received an assurance that Mr. Charlton would be removed. On the 1st of April, 1843, the Earl of Aberdeen formally replied to the king’s commissioners, declaring that “Her Majesty’s Government are willing and have determined to recognize the independence of the Sandwich Islands under their present sovereign,” but insisting on the perfect equality of all foreigners in the islands before the law, and adding that grave complaints had been received from British subjects of undue rigor exercised toward them, and improper partiality toward others in the administration of justice. Sir George Simpson left for Canada April 3d, 1843.

Recognition of the Independence of the Islands—Lord Aberdeen, on the 13th of June, assured the Hawaiian envoys that “Her Majesty’s government had no intention to retain possession of the Sandwich Islands,” and a similar declaration was made to the governments of France and the United States.

At length, on the 28th of November, 1843, the two governments of France and England united in a joint declaration to the effect that “Her Majesty, the queen of the United Kingdom of Great Britain and Ireland, and His Majesty, the king of the French, taking into consideration the existence in the Sandwich Islands of a government capable of providing for the regularity of its relations with foreign nations have thought it right to engage reciprocally to consider the Sandwich Islands as an independent state, and never to take possession, either directly or under the title of a protectorate, or under any other form, of any part of the territory of which they are composed…”

John C Calhoun

This was the final act by which the Hawaiian Kingdom was admitted within the pale of civilized nations. Finding that nothing more could be accomplished for the present in Paris, Messrs. Richards and Haalilio returned to the United States in the spring of 1844. On the 6th of July they received a dispatch from Mr. J.C. Calhoun, the Secretary of State, informing them that the President regarded the statement of Mr. Webster and the appointment of a commissioner “as a full recognition on the part of the United States of the independence of the Hawaiian Government.”

U.S. Department of Justice Files Statement of Interest Claiming Foreign Consulates in Hawai‘i Have Immunity in Hawaiian Kingdom v. Biden

The Hawaiian Kingdom filed an Amended Complaint on August 11, 2021. According to federal court proceedings, when a complaint is filed, a court must take the alleged facts as true. In reviewing a motion to dismiss, all allegations in the complaint and all reasonable inferences that can be drawn from the complaint must be accepted as true and viewed in the light most favorable to the complainant, which in this case is the Hawaiian Kingdom.

In its amended complaint, the Hawaiian Kingdom alleged that the foreign consulates named as defendants in the case are unlawful because they did not get permission to establish themselves as consuls from the Hawaiian Kingdom government. Instead, the consulates were given permission by the United States government. The United States can only give permission for consulates to be established within its own territory and not the territory of the Hawaiian Kingdom despite being belligerently occupied by the United States since 1893. The Hawaiian Kingdom is seeking the Court to declare that these foreign consuls are unlawful under both international law and Hawaiian Kingdom law.

While no media outlet is covering this case, it is gaining the attention of foreign countries that have consulates in Hawai‘i and the U.S. State Department. Since the lawsuit was initiated by the Hawaiian Kingdom on May 20, 2021, three countries closed their consulates in Hawai‘i—the Czech Republic, Finland and India.

Of the summons that were served, 12 foreign consulates failed to respond within 21 days and entries of default were entered by the Clerk of the Court.  These foreign consulates include Austria, Belgium, Chile, Germany, Japan, Luxembourg, Netherlands, Norway, Philippines, South Korea, Spain, and Thailand. Default is where a defendant has failed to defend against a claim that has been brought by the filing of a complaint. By default, these foreign consulates accept the allegation of the Hawaiian Kingdom that it is true they are unlawful. The next stage is to get a judgment of default by the judge so that they can be ordered to close. The Hawaiian Kingdom, however, is prevented from filing a motion for judgment of default because the Court is not an Article II Court that operates in territory belligerently occupied by the United States.

Sweden was the only foreign consulate to respond by filing a Motion to Dismiss on September 21, 2021. Anders Nervell, who is also a law partner at Clay Chapman Iwamura Pulice & Nervell, is named as a defendant in his official capacity as Honorary Consul for Sweden. Nervell does not seek to dismiss the complaint in its entirety, but only over himself because he is claiming personal immunity from the jurisdiction of the federal court.

In his filing, Nervell claims that he is immune from jurisdiction of the federal court under article 71(1) of the Vienna Convention on Consular Relations. The Vienna Convention is a treaty that has been signed and ratified by 181 States, to include the United States.

The federal court ordered the Hawaiian Kingdom to file a response no later than October 20, 2021, and that if Nervell would like to file a reply to the Hawaiian Kingdom response, it must be no later than November 3, 2021.

On September 30, 2021, Federal Magistrate Rom Trader issued an Order granting permission for the International Association of Democratic Lawyers, the National Lawyers Guild and the Water Protectors Legal Collective (IADL-NLG-WPLC) to file their amicus brief that supports the Hawaiian Kingdom’s claim that the Court must transform itself into an Article II Court.

By granting permission, the Court will not only utilize the amicus brief to assist in its decision regarding its transformation into an Article II Court, but it also acknowledges the merit of the IADL-NLG-WPLC’s argument. If it were a frivolous argument, the Court would not have granted permission to file the brief because granting permission is at the discretion of the Court. The IADL-NLG-WPLC filed their amicus brief on October 6, 2021.

The Court’s Order and the filing of the amicus brief was timely for the Hawaiian Kingdom’s response to Nervell.

On October 19, 2021, the Hawaiian Kingdom filed its Response. While citing article XII of the 1852 Treaty of Friendship, Commerce and Navigation between the Hawaiian Kingdom and the Kingdoms of Sweden and Norway that requires any Swedish consul must be approved and admitted by the Hawaiian Kingdom and not by the United States, the Hawaiian Kingdom maintained that the “Court is compelled by international and U.S. constitutional law to first transform itself from an Article III Court to a de facto Article II Court before it may lawfully assert subject-matter and personal jurisdiction to address any of the issues raised” by Nervell. The Hawaiian Kingdom also maintained that Nervell was never a lawful Honorary Consul for Sweden approved by the Hawaiian Kingdom, and therefore could not claim to be protected by the Vienna Convention on Consular Relations. The Vienna Convention only applies to lawfully established consuls.

In its Response, the Hawaiian Kingdom drew attention to the jurisdiction of the court, which it stated in federal court proceedings, a judgment is void “if the court that rendered judgment lacked jurisdiction of the subject-matter, or of the parties, or acted in a manner inconsistent with due process.” In other words, before the Court can make any judgment in this lawsuit, which would include Nervell’s motion to dismiss, it needs to have lawful jurisdiction first. If it doesn’t, which is the position taken by the Hawaiian Kingdom and the IADL-NLG-WPLC in its amicus brief, all judgments made are void and of no effect. The filing of the amicus brief supported the Hawaiian Kingdom’s response.

The Hawaiian Kingdom, in its response, cited the U.S. Supreme Court, in Pennoyer v. Neff, which stated:

No State can exercise direct jurisdiction and authority over persons or property without its territory. The several States are of equal dignity and authority, and the independence of one implies the exclusion of power from all others. And so it is laid down by jurists as an elementary principle that the laws of one State have no operation outside of its territory except so far as is allowed by comity, and that no tribunal established by it can extend its process beyond that territory so as to subject either persons or property to its decisions.

On November 3, 2021, Nervell filed his Reply where he stated that the Hawaiian Kingdom merely gave, in its response, “tendentious ramblings regarding international law,” and it “can play no role here.” The irony of this statement is that the so-called “ramblings regarding international law” were along the same lines as the amicus brief regarding Article II Courts, which the Magistrate Judge accepted as having merit. In other words, international law regarding Article II Courts is playing a “role here.”

Two days later, on November 5, the United States Department of Justice filed a Statement of Interest attempting to influence the Court to dismiss all of the 30 defendant Consuls General and Honorary Consuls, and to set aside entry of default of the 12 Consuls General and Honorary Consuls. The United States filed its Statement of Interest “to set forth its views with respect to the immunity of the consular officers named as defendants in this lawsuit.”

Like Nervell, the United States also attempts to discredit the Hawaiian Kingdom. In its introduction, the United States stated that this “lawsuit is brought by a group of individuals who call themselves the ‘Council of Regency,’ which in turn purports to the be the government of the Hawaiian Kingdom (‘Plaintiff’). Plaintiff requests that the Court declare that the Council of Regency, not the democratically-elected government, is the rightful ruler of Hawaii.”

The United States also adopts the legal arguments in Nervell’s Motion to Dismiss, which provided the opportunity for the Hawaiian Kingdom to respond to the United States’ Statement of Interest, and also to reveal the errors in Nervell’s November 3 reply.

On November 7, 2021, the Hawaiian Kingdom filed its Response to the United States’ Statement of Interest. The Hawaiian Kingdom opened with:

By filing its statement of interest, the UNITED STATES engages in unfounded and disparaging remarks directed at Plaintiff in a poor attempt to present a false narrative of Plaintiff’s status and the UNITED STATES’ factual and undisputed recognition of that status. Exposure of this false narrative, as more fully set forth herein below, opens for clear view of an argument, by the UNITED STATES, that strains credibility and subject to terminable contradiction by the facts and laws presented in these proceedings.

In its Response, the Hawaiian Kingdom views the United States’ use of the term purport as “a pejorative statement inserted in a non-answer pleading that attempts to influence the Court that its argument that the Defendant Consulates have immunity from jurisdiction via the Vienna Convention on Consular Relations has merit.” The Hawaiian Kingdom goes on to state:

As the Council of Regency are officers de facto of a government, albeit a government of an occupied State where democratic principles have no play in a belligerent occupation, the UNITED STATES, as a government itself of an independent and sovereign State, must provide rebuttable evidence that another government of a co-equal independent and sovereign State is not what it claims to be. To do otherwise, is an insult to its dignity because the Council of Regency is the Head of the Hawaiian Kingdom government. According to Oppenheim,

“Since dignity is a recognized quality of States as International Persons, all members of the Family of Nations grant reciprocally to one another by custom certain rights and ceremonial privileges. (These are chiefly the rights to demand—that their heads shall not be libelled and slandered […].) Every State must not only itself comply with the duties corresponding to these rights of other States, but must also prevent its subjects from such acts as violate the dignity of foreign States, and must punish them for acts of that kind which it could not prevent. The Municipal Laws of all States must therefore provide for the punishment of those who commit offences against the dignity of foreign States, and, if the Criminal Law of the land does not contain such provisions, it is no excuse for failure by the respective States to punish offenders.”

Though it cites NERVELL’S REPLY, the UNITED STATES, like NERVELL, fails to counter the factual allegations in the Amended Complaint that: (a) the UNITED STATES, to include Sweden and all States of the other Consular Defendants, as members of the Permanent Court of Arbitration’s Administrative Council, acknowledged the HAWAIIAN KINGDOM as a non-Contracting State under Article 47 of the 1907 Hague Convention on the Pacific Settlement of International Disputes, and the Council of Regency as its government and; (b) the UNITED STATES, by its embassy in The Hague, entering into an agreement with the Council of Regency, as the government of the Hawaiian Kingdom, to have access to all records and pleadings of the arbitral proceedings.

The Response stated that the arguments by the United States and Nervell “are blatantly unsubstantiated denials and desperate attempts by both to distract this Court from the facts of this case. Furthermore, Sweden, as a co-equal sovereign and independent State is responsible for NERVELL’s pleadings, which has a tenor of arrogance.” The Hawaiian Kingdom then went on to address the flaws of Nervell’s citing of State of Hawai‘i and federal court decisions regarding the Hawaiian Kingdom as they serve as precedent cases. Nervell fails to mention that these decisions are in personam, which only bind the litigants of that particular case, and not decisions in rem, which would apply to a thing, such as the territory of the Hawaiian Kingdom.

All NERVELL cites in his reply is both State of Hawai‘i and federal court decisions regarding the Hawaiian Kingdom. These court decisions only reflect the allegations of facts made or not made by the defendants in the cases cited. It has no application to the instant case before this Court because these decisions are in personam and not in rem. What these decisions do provide, however, are instructional for defendants that claim the Hawaiian Kingdom exists in their particular case, to provide evidence of the Hawaiian State’s existence. NERVELL’S REPLY cites United States v. Lorenzo, where the court stated, “[t]he appellants have presented no evidence that the Sovereign Kingdom of Hawaii is currently recognized by the federal government (emphasis added).” The operative words here are “presented no evidence.”

NERVELL’s REPLY further goes on to cite Keliihuluhulu v. Keanaaina, where the federal court stated, “[a]s stated by the Hawai‘i Intermediate Court of Appeals (“ICA”), a statement that is as true now as it was when the ICA stated in 1994, ‘presently there is no factual (or legal) basis for concluding that the [Hawaiian] exists as a state in accordance with recognized attributes of a state’s foreign nature.’ Hawaii v. French, 77 Haw. 222, 228, 883 P.2d 644, 650 (CT. App. 1994) (quotations omitted) (emphasis added).” The operative word here is “presently.” In other words, these federal court decisions clearly state that the defendants provided no factual or legal evidence of the Hawaiian Kingdom’s existence as a State.

On the contrary, the HAWAIIAN KINGDOM, as the Plaintiff, has provided “a factual (or legal) basis for concluding that the [Hawaiian] Kingdom exists as a state” despite the UNITED STATES admitted illegal overthrow of its government on January 17, 1893. The Amici also address the French case in their filed amicus brief [ECF 96].

“In Defendant County of Kaua‘i’s Motion to Dismiss Plaintiff’s original Complaint, the County cites Hawai‘i v. French, 77 Haw. 222, 228, 883 P.2d 644, 650 (Ct. App. 1994) in support of the statement that there is ‘no factual (or legal) basis for concluding that the [Hawaiian] Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature. [ECF No. 15-1, Page ID #158]. This assertion is factually and legal incorrect. The 1994 ruling in French stands in stark contrast to the 2001 Arbitral Award of the Permanent Court of Arbitration of the Larsen v. Hawaiian Kingdom and the PCA Annual Reports from 2000-2011, that explicitly found Hawai‘i to be a continued state to-date under international law (emphasis added).”

The Court’s Order granting permission for Amici to file their amicus brief stated that the “briefing ‘supplement[s] the efforts of counsel, and draw[s] the court’s attention to law that escaped consideration.’” As such, the amicus brief, which supplements the Amended Complaint regarding its jurisdictional statement, must also be considered true. Reinforcing the merit of the amicus is that the Court granted permission to the Amici to file their brief.

The Hawaiian Kingdom concludes its Response to the United States Statement of Interest with:

The jurisdiction of the Court as an Article II Court is consequential to the existence of the Hawaiian Kingdom as a State. In the Lotus case, the Permanent Court of International Justice 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.” There is no permission from the HAWAIIAN KINGDOM giving its consent to the UNITED STATES, whether by its Congress or otherwise, to establish an Article III Court within the territorial jurisdiction of the HAWAIIAN KINGDOM. In the absence of consent by the HAWAIIAN KINGDOM, authorization for this Court to transform into an Article II Court is by virtue of Article 43 of the Hague Regulations.

Until this Court transforms itself into an Article II Court, it is precluded from considering the relief sought by the UNITED STATES SOI and NERVELL’S MTD because, as an Article III Court, it does not possess subject matter and personal jurisdiction. In colloquial terms, the UNITED STATES, on behalf of the Consular Defendants, including NERVELL, appear to be asking for a chicken without first qualifying the egg. Furthermore, the Federal Rules of Civil Procedure, the Local Rules of the Court, and Court decisions, to include the United States Supreme Court, are instructional and not binding until the Court, as an Article II Court, declares otherwise in conformity with the laws of armed conflict—international humanitarian law.

What Role Does the Amicus Brief Serve in Hawaiian Kingdom v. Biden?

In his Order granting approval for the International Association of Democratic Lawyers, the National Lawyers Guild and the Water Protector Legal Collective (IADL-NLG-WPLC) to file their amicus brief, Federal Magistrate Judge Rom Trader explained the role of an amicus. He stated:

When determining whether to grant leave to file an amicus brief, courts consider whether the briefing “supplement[s] the efforts of counsel, and draw[s] the court’s attention to law that escaped consideration.” The amicus may be either impartial or interested individuals, whose function is to advise or make suggestions to the court. “The district court has broad discretion to appoint amici curiae.”

In other words, Judge Trader accepts that the amicus brief “supplements” the Hawaiian Kingdom’s position that the Court is presently not lawful as an Article III Court and must, therefore, assume jurisdiction as an Article II Court because it is located outside of the United States. Article II and Article III Courts reflect the authority of federal courts under the U.S. constitution to preside over civil and criminal matters. By allowing the filing of the amicus Judge Trader acknowledges that IADL-NLG-WPLC amicus‘ “function is to advise or make suggestions to the court.”

Article II refers to the authority of the President as commander and chief of the armed forces where federal courts can be established in foreign territory that is being occupied by the United States. Article III refers to the judiciary of the United States federal government where Article III Courts exist within the States of the Federal Union. Article III Courts do not exist in the territory of foreign States. According to Justice Story, in Picquet v. Swan, “no sovereignty can extend its process beyond its territorial limits, to subject either persons or property to its judicial decisions. Every exertion of authority beyond this limit is a mere nullity.”

To put it another way, Judge Trader has explicitly admitted there is merit to the position taken by the Hawaiian Kingdom and the authors of the amicus brief that presently the Court is not lawful until it assumes jurisdiction as an Article II Court because it is not located in the State of Hawai‘i but rather in the Hawaiian Kingdom as an occupied State. The amicus opened with:

The purpose of this brief is to bring to the Court’s attention customary international law norms and judicial precedent regarding Article II occupation courts that bear on the long-standing belligerent occupation of the Hawaiian Kingdom by the United States at issue in this case.

In assessing the legality of the US occupation of Hawai‘i, the Court should be cognizant of customary international law and international human rights treaties that are incorporated into domestic law by virtue of Article IV, section 2 of the Constitution (the “Supremacy Clause”). International law, which includes treaties ratified by the United States as well as customary international law, is part of U.S. law and must be faithfully executed by the President and enforced by U.S. courts except when clearly inconsistent with the U.S. Constitution or subsequent acts of Congress

The question here is not whether the Hawaiian Kingdom has standing in an Article III court. The question is whether this court can sit as an Article II occupation court and whether the claims of the Hawaiian Kingdom can be redressed. The answer to both questions is yes.

In its conclusion, the amicus stated:

Under the concept of void ab initio, there are structures that have no legal effect from inception. The United States occupation of Hawai‘i began with unclean hands, and this can only be remedied by a clean slate and a new beginning. Recognition of the prolonged occupation of the Hawaiian Kingdom by the United States through Declaratory Judgment is not only a redressable claim, it is long overdue and would only be consistent with what is already known to the international community and clear under international law. Additionally, granting the Hawaiian Kingdom injunctive relief would acknowledge the Kingdom’s continuous sovereignty, mitigate the United States’ liability for its war crimes against the Hawaiian people, and apply local law as required of an occupying power by the international law of war. Acknowledging extraterritoriality and occupation would have the practical effect of applying the laws of the Hawaiian Kingdom but as was the case with prior occupation courts, this would not nullify any prior decisions of any of the courts currently operating in Hawai‘i, so long as they are not inconsistent with local law.

For the foregoing reasons, amici request that the Court consider U.S. obligations under international law, which forms part of U.S. law, in evaluating the long-standing occupation of the Hawaiian Kingdom.

In his Order granting permission to file the amicus brief, Judge Trader also stated that he granted permission after he “carefully reviewed the Motion and attached brief, records and files in this case, and the applicable law.” This would include the Hawaiian Kingdom’s amended complaint. In its amended complaint, the Hawaiian Kingdom addressed the subject of jurisdiction of the court:

3.  While this court is operating within the territory of the HAWAIIAN KINGDOM and not within the territory of Defendant UNITED STATES OF AMERICA, its jurisdiction is found as a de facto Article II Court. According to Professor Bederman:

What, then, is distinctive about a court established under Article II of the Constitution? First, executive tribunals are established without an act of Congress or any other form of legislative concurrence. Congressional intent concerning the status of a presidential court is irrelevant because no congressional approval is needed. The fact that the President alone can create an executive court places it outside the scope of Article III of the Constitution, which demands that Congress shall establish courts inferior to the Supreme Court. Second, the executive courts are created pursuant only to the power and authority granted to the President in Article II of the Constitution. In practice, the only presidential power that would call for the creation of a court is that arising from his responsibility as Commander in Chief of the armed services and his subsequent war-making authority.

4. The authority for this Court to assume jurisdiction as a de facto Article II Court is fully elucidated in the Amicus Curiae brief previously lodged in these proceedings by virtue of the Motion for Leave to File Amicus Curiae Brief on July 30, 2021 [ECF 45] by the International Association of Democratic Lawyers (IADL), the National Lawyers Guild (NLG), and the Water Protector Legal Collective (WPLC). The Amicus brief is instructional for the Court to transition to a de facto Article II Court.

5. An Article II Court was established in Germany after hostilities ceased in 1945 during the Second World War. After the surrender, western Germany came under belligerent occupation by the United States, France and Great Britain. The military occupation officially came to an end on May 5, 1955, with the entry into force of peace treaties called the Bonn Conventions between the Federal Republic of Germany and the three Occupying States. During the occupation, these Article II Courts had jurisdiction “over all persons in the occupied territory,” except for Allied armed forces, their dependents, and civilian officials, for “[a]ll offenses against the laws and usages of war[,] […] [a]ll offenses under any proclamation, law, ordinance, notice or order issued by or under the authority of the Military Government or of the Allied Forces, [and] [a]ll offenses under the laws of the occupied territory or any part thereof.”

6. Like the Article II Court in Germany, this Court has Jurisdiction as a de facto Article II Court because this action arises under international humanitarian law—law of armed conflict, which include the 1907 Hague Convention, IV (1907 Hague Regulations), the 1907 Hague Convention, V, the 1949 Geneva Convention, IV (1949 Fourth Geneva Convention), and Hawaiian Kingdom law. Article 43 of the 1907 Hague Regulations states:

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

7. The Court is authorized to award the requested declaratory and injunctive relief as a de facto Article II Court because it is situated within the territory of the HAWAIIAN KINGDOM that has been under a prolonged belligerent occupation by the United States of America since January 17, 1893.

8. Venue is proper because the events giving rise to this claim occurred in this District, and the Defendants are being sued in their official capacities.

By this action taken by Magistrate Judge Trader, the jurisdiction of the court is now front and center. If a court does not have jurisdiction over a case, which can be raised at any time throughout the proceedings, its decisions on any motion or even the complaint is void and without merit. This was explicitly stated by a federal court in Jalapeno Property Management, LLC v. Dukas, where a judgment is void only “if the court that rendered judgment lacked jurisdiction of the subject-matter, or of the parties, or acted in a manner inconsistent with due process.”

According to the rules, Judge Trader, as a Magistrate, is required to provide a report and recommendation to District Judge Leslie Kobayashi who serves as the trial Judge. It will be up to Judge Kobayashi to make a decision on transforming the Court from an Article III to an Article II Court. Prior to his report and recommendation, however, Judge Trader has the authority to appoint additional amicus briefs to be filed in order to address other matters not covered by the IADL-NLG-WPLC’s amicus.

This may be what Judge Trader is considering, because there are other matters that are related to Article II Courts such as procedural rules and appellate review of its decisions. Decisions by Article II Courts are not reviewable on appeal by Article III Appellate Circuit Courts as well as the U.S. Supreme Court. Article II Courts have their own procedural rules that are adopted and their own Appellate Courts that reside within the occupied territory.

In its amended complaint, the Hawaiian Kingdom brought this to the attention of the Court by referencing the establishment of Article II Courts in occupied Germany. The creation of these courts to include procedure and appeals stemmed from the Army War Department and published in the Federal Register on April 3, 1947 under Title 10. Judge Trader may very well consider asking for an amicus from the Staff Judge Advocate of the U.S. Indo-Pacific Command on how Article II Courts, similar to those established in Germany, can be established in Hawai‘i. The Commander of the U.S. Indo-Pacific Command is a named defendant in his official capacity.

Judge Trader has not provided any timeline for his report and recommendation to be completed.

Finland and India Close Their Hawai‘i Consulates

Finland and India followed suit with the Czech Republic that closed their consulates in Hawai‘i as a result of a federal lawsuit filed by the Hawaiian Kingdom against 30 foreign consulates and leadership of the Federal Government and the State of Hawai‘i for violations of international law, war crimes and human rights violations. In its Amended Complaint, the Hawaiian Kingdom alleges:

104. The PCA Administrative Council’s annual reports from 2000-2011 clearly states that the Defendant UNITED STATES OF AMERICA, as a member of the PCA Administrative Council, explicitly acknowledged the continued existence of the HAWAIIAN KINGDOM as a non-Contracting State to the 1907 PCA Convention as evidenced in the PCA Administrative Council’s annual reports. Unlike the ICA and the trial court in Lorenzo, the PCA did apply international law in their determination of the continued existence of the HAWAIIAN KINGDOM as an independent and sovereign State for jurisdictional purposes. As such, the treaties between the HAWAIIAN KINGDOM and the Defendant UNITED STATES OF AMERICA remain in full force and effect except where the law of occupation supersedes them. The other Contracting States with the HAWAIIAN KINGDOM in its treaties, which include Austria, Belgium, Denmark, France, Germany, Great Britain, Hungary, Italy, Japan, Luxembourg, Netherlands, Norway, Portugal, Russia, Spain, Sweden, and Switzerland, are also members of the PCA Administrative Council and, therefore, their acknowledgment of the continuity of the Hawaiian State is also an acknowledgment of the full force and effect of their treaties with the HAWAIIAN KINGDOM except where the law of occupation supersedes them.

105. The Consular Corps Hawai‘i is comprised of 38 countries, 32 of which are also members of the PCA Administrative Council in The Hague, Netherlands. These countries include, Australia, Austria, Bangladesh, Belgium, Brazil, Chile, Czech Republic, Denmark, Finland, France, Germany, Hungary, India, Italy, Japan, Luxembourg, Mexico, Morocco, Netherlands, New Zealand, Norway, Philippines, Poland, Portugal, Slovenia, South Korea, Spain, Sri Lanka, Sweden, Switzerland, Thailand and the United Kingdom via the Australian Consulate.

106. §458 of the Hawaiian Civil Code states, “[n]o foreign consul, or consular or commercial agent shall be authorized to act as such, or entitled to recover his fees and perquisites in the courts of this Kingdom, until he shall have received his exequatur.” These consulates have not presented their credentials to the HAWAIIAN KINGDOM in order to receive exequaturs but rather received their exequaturs from the Defendant UNITED STATES OF AMERICA under the municipal laws of the United States.

107. In diplomatic packages sent to the foreign embassies in Washington, D.C., that maintain consulates in the territory of the HAWAIIAN KINGDOM by DAVID KEANU SAI, as Minister of Foreign Affairs ad interim, on April 15th and 20th of 2021, the Ambassadors were notified that their Consulates “within the territory of the Hawaiian Kingdom is by virtue of ‘American municipal laws,’ which stand in violation of Hawaiian sovereignty and independence, and, therefore constitutes an internationally wrongful act.” The diplomatic note further stated that the “Council of Regency acknowledges that [foreign] nationals should be afforded remedial prescriptions regarding defects in their real estate holdings that have resulted from the illegal occupation in accordance with ‘laws and established customs’ of the Hawaiian Kingdom.” This subject is covered in the Royal Commission of Inquiry’s Preliminary Report re Legal Status of Land Titles throughout the Realm and its Supplemental Report re Title Insurance.”

108. The maintenance of Defendants’ foreign Consulates in the territory of the Hawaiian Kingdom also constitutes acts of belligerency. On June 30, 2021, the Czech Republic filed a letter to this Court announcing the temporary closure of its Honorary Consulate in the Hawaiian Kingdom. The Hawaiian Kingdom acknowledges this act of State to be in conformity with Article 30(a) of Responsibility of States for Internationally Wrongful Acts (2001), whereby “[t]he State responsible for the internationally wrongful act is under an obligation (a) to cease that act, if it is continuing.” Article 30(b), however, states that the responsible State shall “offer appropriate assurances and guarantees of non-repetition, if circumstances so require.” The Czech Republic has yet to assure the government of the HAWAIIAN KINGDOM guarantees of non-repetition. Furthermore, Article 31 provides that the “responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act,” and that the “[i]njury includes any damage, whether material or moral, caused by the internationally wrongful act of State.”

The closure of the Czech, Finnish and Indian Consulates are in conformity with Article 30(a) and (b) of the International Law Commission’s articles of Responsibility of States for Internationally Wrongful Acts (2001). As a result of the closure of their Consulates, the Czech Republic, Finland and India were dismissed from the lawsuit.

Hawai‘i Federal Court Seriously Considering Transformation into an Article II Occupation Court

On August 17, 2021, the International Association of Democratic Lawyers (IADL), the National Lawyers Guild (NLG) and the Water Protector Legal Collective (WPLC) filed a motion for permission to file an amicus curiae brief with the U.S. District Court for the District of Hawai‘i in support of the Hawaiian Kingdom’s complaint against U.S. President Biden and others for violations of international law, the commission of war crimes, and human rights violations in its prolonged occupation of the Hawaiian Kingdom. The motion was filed after the Hawaiian Kingdom filed its Amended Complaint on August 11, 2021.

An amicus curiae is “one (such as a professional person or organization) that is not a party to a particular litigation but that is permitted by the court to advise it in respect to some matter of law that directly affects the case in question.” The amicus brief was attached to the motion for the court to consider. In its request for permission, the IADL-NLG-WPLC stated:

1. The nongovernmental organizations whose views are represented in this brief have expertise in public international law, international human rights, humanitarian law, and norms regarding statehood, sovereignty, and self-determination.

2. Movants submit this brief to ensure a proper understanding and application of the international law and historical precedent relevant to this case regarding Article II occupation courts. The amici are additionally human rights organizations that have an interest in ensuring an informed interpretation of international human rights law in domestic jurisprudence.

In its complaint, the Hawaiian Kingdom takes the position that the Court must first transform itself into an Article II Court for it to have lawful jurisdiction because it is located in the territory of an occupied State, which is outside of the United States. According to Professor Bederman, in his law article Article II Courts,

What, then, is distinctive about a court established under Article II of the Constitution? First, executive tribunals are established without an act of Congress or any other form of legislative concurrence. Congressional intent concerning the status of a presidential court is irrelevant because no congressional approval is needed. The fact that the President alone can create an executive court places it outside the scope of Article III of the Constitution, which demands that Congress shall establish courts inferior to the Supreme Court. Second, the executive courts are created pursuant only to the power and authority granted to the President in Article II of the Constitution. In practice, the only presidential power that would call for the creation of a court is that arising from his responsibility as Commander in Chief of the armed services and his consequent war-making authority.

An Article II Court was established in Germany after hostilities ceased in 1945 during the Second World War. After the surrender, western Germany came under belligerent occupation by the United States, France, and Great Britain. The military occupation officially came to an end on May 5, 1955, with the entry into force of the Bonn Conventions between the Federal Republic of Germany and the three Occupying States. During the occupation, these Article II Courts had jurisdiction “over all persons in the occupied territory,” except for Allied armed forces, their dependents, and civilian officials, for “all offenses against the laws and usages of war, all offenses under any proclamation, law, ordinance, notice or order issued by or under the authority of the Military Government or of the Allied Forces, and all offenses under the laws of the occupied territory or any part thereof.”

Currently, the U.S. District Court is called an Article III Court. This designation refers to Article III of the U.S. Constitution, which is the judicial branch of the United States headed by a Supreme Court over Circuit Courts of Appeal, and District Courts established in the States of the Federal Union. The authority of the District Court for Hawai‘i comes from section 9(a) of the 1959 Hawai‘i Statehood Act that established the State of Hawai‘i.

In its complaint, the Hawaiian Kingdom explains that Congress cannot establish a U.S. District Court in a foreign country, the Hawaiian Kingdom, that has been under a prolonged occupation by the United States for over a century. The Congress can only enact laws that apply within the United States and not outside of it. According to a 1988 legal opinion by the U.S. Department of Justice regarding the annexation of Hawai‘i by a congressional joint resolution, “there is a serious question whether Congress has the authority either to assert jurisdiction over an expanded territorial sea for purposes of international law or to assert the United States’ sovereignty over it.”

On September 30, 2021, U.S. Magistrate Judge Rom Trader issued an Order granting permission for the IADL-NLG-WPLC to formally file their amicus curiae brief in order to aid the Court in its decision on transforming itself into an Article II Occupation Court. Judge Trader’s Order stated, “The Court, having carefully reviewed the Motion and attached brief, records and files in this case, and the applicable law, GRANTS the Motion.” The IADL-NLG-WPLC filed their amicus brief on October 6, 2021. In its brief, the IADL-NLG-WPLC stated:

The purpose of this brief is to bring to the Court’s attention customary international law norms and judicial precedent regarding Article II occupation courts that bear on the long-standing belligerent occupation of the Hawaiian Kingdom by the United States at issue in this case.

In assessing the legality of the US occupation of Hawai‘i, the Court should be cognizant of customary international law and international human rights treaties that are incorporated into domestic law by virtue of Article VI, section 2 of the Constitution (the “Supremacy Clause”). International law, which includes treaties ratified by the United States as well as customary international law, is part of U.S. law and must be faithfully executed by the President and enforced by U.S. courts except when clearly inconsistent with the U.S. Constitution or subsequent acts of Congress.

The question here is not whether the Hawaiian Kingdom has standing in an Article III court. The question is whether this court can sit as an Article II occupation court and whether the claims of the Hawaiian Kingdom can be redressed. The answer to both questions is yes.

The significance of this Order cannot be underestimated. The Court is seriously considering transforming itself into an Article II Occupation Court.