Hawai‘i Never Annexed – Limits of U.S. Congressional Legislation

Posted on July 10, 2015 by Hawaiian Kingdom

Sources of international law are, in rank of precedence: international conventions, international custom, general principles of law recognized by civilized nations, and judicial decisions and the teachings of the most highly qualified publicists of the various nations (Statute of the International Court of Justice, Article 38). The legislation of every state, to include the United States of America and its Congress, is not a source of international law, but rather a source of municipal law of the state whose legislature enacted it. In The Lotus, the International Court stated, “Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State (Lotus, PCIJ, ser. A no. 10, 18 (1927).” According to Crawford, derogation of this principle will not be presumed, which he refers to as the Lotus presumption (James Crawford, The Creation of States in International Law 34 (2d ed. 2006).

Since Congressional legislation, whether by a statute or a joint resolution, has no extraterritorial effect, it is not a source of international law, which “governs relations between independent States (Lotus, at 18).” The U.S. Supreme Court has always adhered to this principle. The U.S. Supreme Court stated,

“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 (United States v. Curtiss Wright Export Corp., 299 U.S. 304, 318 (1936).”

The Supreme Court also concluded, “The laws of no nation can justly extend beyond its own territories except so far as regards its own citizens. They can have no force to control the sovereignty or rights of any other nation within its own jurisdiction (The Apollon, 22 U.S. 362, 370 (1824).” Adhering to this principle, the U.S. Attorney General’s Office of Douglas_Kmiec Legal Counsel was befuddled by Congress’s annexation of the Hawaiian Islands by a joint resolution. In a 1988 legal opinion, the Office of Legal Counsel addressed the annexation of the Hawaiian Islands by joint resolution. Douglas Kmiec, Acting Assistant Attorney General, authored the memorandum for Abraham D. Sofaer, legal advisor to the U.S. State Department. After covering the limitation of Congressional authority and the objections made by members of the Congress, Kmiec concluded,

“Notwithstanding these constitutional objections, Congress approved the joint resolution and President McKinley signed the measure in 1898. Nevertheless, whether this action demonstrates the constitutional power of Congress to acquire territory is certainly questionable. … It is therefore 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 (Douglas W. Kmiec, Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea, 12 Opinions of the Office of Legal Counsel 238, 252 (1988).”

This 1988 opinion clearly undermines the claim of sovereignty over the Hawaiian Islands by the United States. If the Attorney General’s Office of Legal Counsel is “unclear” as to the authority of Congress to annex the Hawaiian Islands, it surely cannot be considered as a valid demonstration of legal title by the United States as the successor to the Hawaiian Kingdom under international law. If the United States is not the successor, then the presumption of the Hawaiian Kingdom’s existence as an independent state is maintained.

Report of the U.S. House Committee on Foreign Affairs – Annexation of Hawai‘i

Posted on July 8, 2015 by Hawaiian Kingdom

ANNEXATION OF THE HAWAIIAN ISLANDS

(House Committee on Foreign Affairs Report to accompany H. Res. 259, May 17, 1898 (House Report no. 1355, 55th Congress, 2d session)

May 17, 1898.—Committed to the Committee of the Whole House on the state of the Union and ordered to be printed.

Mr. Hitt, from the U.S. Congress House Committee on Foreign Affairs, submitted the following

REPORT.

[To accompany H. Res. 259.]

The joint resolution (H. Res. 259) provides for the annexation of the Hawaiian Islands to the United States. The proposition is not new either to the Government of the little Commonwealth in the Pacific, to the United States, or to other nations. It has been apparent for more than fifty years that so small and feeble a Government could not maintain its independence, and that it must ultimately be merged into a greater power. It has been repeatedly seized and Honolulu occupied, and has repeatedly made overtures to the United States to be united with us. In 1829 the French commander, Laplace, seized Honolulu and held it for awhile, after forcing upon the government a harsh treaty. In 1843 it was seized by the British commander, Lord Pawlet, but subsequently released by Great Britain upon the remonstrances of other powers. It was again seized by the French in 1849 and held for a considerable time, but was evacuated after diplomatic pressure from England and the United States.

In 1851 the King, pressed by his perplexities with France and England, delivered to our commissioner a deed of cession of the islands to the United States, to be held until a satisfactory adjustment had been reached with France, and failing that, permanently. In 1854 our Secretary of State, Mr. Marcy, authorized the negotiation of an annexation treaty. The King made a draft satisfactory to him and modifying the one proposed, but before the conclusion was reached he died. In 1893 a treaty was negotiated between our government and that of the Hawaiian Islands for the annexation of the islands to the United States. No word of protest was uttered by any other government. This treaty, while pending before the Senate, was withdrawn by the President, a change of administration having taken place. Again, June 16, 1897, a treaty of annexation, similar in provisions to the joint resolution now proposed, was agreed to by the government of Hawaii and duly ratified by their Senate.

There is, therefore, no undue pressure on the part of the United States as a greater power; no surprise of any one; no possibility of objections by other governments. It is simply the obvious result of the natural course of events through a long period of years thus completed with the cordial consent of the sovereign powers of both Governments. The only question involved is whether the proposed possession of the Hawaiian Islands would be advantageous to the United States.

THEIR STRATEGIC IMPORTANCE.

Recent events In the existing war with Spain have called public attention to what has long been discussed by military and naval authorities—the inestimable importance to the United States of possessing the Hawaiian Islands in case of war with any strong naval power. They lie facing our Pacific coast. Their strategic importance is vastly increased by the fact that they are separated by thousands of miles from any other and more distant group in the northern Pacific Ocean and are the only group facing our coast. In the possession of an enemy they would serve as a secure base for attacking any and all of our Pacific coast cities. In our possession they would deprive the enemy s fleet of all facilities for coaling, supplies, or repairs, and speedily paralyze all his naval operations. The first object of an enemy attacking us on that side of the Republic would be to secure these islands, and in their present condition their possession would fall to the stronger naval power.

The leading nations—England, France, Germany, Japan, Spain, and the United States—have each a Pacific Squadron. Every one of these squadrons is stronger than ours save that of Spain, which is the weakest. Had the war in which we are now engaged been with any of the other powers they might have worsted our fleet and seized the Hawaiian Islands, which are not now defended by any fortification or cannon, thus exactly reversing our recent good fortune at Manila. They would then have had a convenient base for supplies, coal, and repairs, from which to actively harry and devastate our coast. But were we in complete possession of the Hawaiian Islands and they properly prepared for defense (which eminent officers of the Army and Navy stated to the committee could be done at a cost of $500,000), our fleet, even if pressed by a greatly superior sea power, would have an impregnable refuge at Pearl Harbor, backed by a friendly population and militia, with all the resources of the large city of Honolulu and a small but fruitful country. Holding this all important strategic point, the enemy could not remain in that part of the Pacific, thousands of miles from any base, without running out of coal sufficient to get back to their own possessions. The islands would secure both our fleet and our coast.

GENERAL SCHOFIELD’S VIEW.

As General Schofield stated to the committee—

“The most important feature of all is that it economizes the naval force rather than increases it. It is capable of absolute defense by shore batteries, so that a naval fleet, after going there and replenishing its supplies and making what repairs are needed, can go away and leave the harbor perfectly safe to the protection of the army. * * * The Spanish fleet on the Asiatic station was the only one of all the fleets we could have overcome as we did. Of course, that cannot again happen, for we will not be able to pick up so weak a fellow next time. We are liable at any time to get into a war with a nation which has a more powerful fleet than ours, and it is of vital importance, therefore, if we can, to hold the point from which they can conduct operations against our Pacific coast. Especially is that true until the Nicaragua Canal is finished, because we can not send a fleet around from the Atlantic to the Pacific.”

The same eminent and experienced soldier, when asked whether it would be sufficient to have Pearl Harbor without the islands, said we ought to have the islands to hold the harbor; that if left free and neutral complications would arise with foreign nations, who would take advantage of a weak little republic with claims for damages enforced by warships, as is frequently seen. If annexed we would settle any dispute with a foreign nation; that we would be much stronger if we owned the islands as part of our territory, and would then also have the resources of the islands, which are so fertile, for military
supplies; that if we do not have the political control they may become Japanese, and we would be surrounded by a hostile people.

Admiral Walker, who has had long experience in the waters of the Hawaiian Islands, emphatically confirmed the views of General Schofield, especially that it would cost far less to protect the Pacific coast with the Hawaiian Islands than without them; that it would be taking a point of vantage instead of giving it to your enemy.

RISK OF DELAY.

We must face the future in dealing with this proposed annexation. It is impossible for the Republic of Hawaii to maintain a permanent existence preserving in force the influences which are now in the ascendant there and which are cordial and friendly to the United States. Of its mixed population of 109,000 a powerful element is Japanese—24,407—of whom 19,212 are males, almost all of them grown men, for they are not divided as ordinary populations are in the usual proportions of men, women, and children. They are a far stronger element of physical force than the native race, which has diminished until there are now only thirty-odd thousand, of whom, by the usual proportions of population, there are not over 8,000 grown men. The native Hawaiian race cannot in any contingency control the island. It must fall to some foreign people.

The Japanese are intensely Japanese, retaining their allegiance to their Empire and responding to suggestions from the Japanese officials. Very many of them served in the recent war with China. The Japanese Government not long ago demanded of the Hawaiian Government, under their construction of a treaty made in 1871, that the Japanese in the Hawaiian Islands should have equal privileges with all other persons, which would include voting and holding office. This claim was made when a flood of Japanese subjects, under the supervision of the Government of that country, of from 1,000 to 2,000 per month, were being poured into the Hawaiian Islands, threatening a speedy change of the Government into Japanese hands, and ultimately to a Japanese possession. The demand was resisted by the little Republic and a treaty of annexation with the United States arrested it for a time.

Japan protested earnestly to our government against that treaty, but our Secretary of State refused to consider their protest; yet the Japanese government has not withdrawn its demand on the Hawaiian Government, and is waiting to renew and press it with more energy and success if annexation to the United States s rejected by this Congress. It could then in a few months throw many thousands of Japanese subjects into the Hawaiian Islands, completely overwhelming all other influences.

By a clause in our reciprocity treaty with the Hawaiian Islands we have right to establish and maintain a coaling and repair station in Pearl Harbor, which is about 8 miles from the city of Honolulu, and capable of being made one of the best harbors in the world, easily fortified to make it impregnable from the sea. It is the only harbor of such a character in the whole group. We have thus far done nothing toward taking possession, fortifying, or opening the channel into the harbor, so that it is at present utterly useless, but capable of infinite possibilities.

The grant of this harbor to our Government is a part of a reciprocity treaty. After that treaty had been ratified, but before the ratification had been exchanged, the Hawaiian minister and the Secretary of State of the United States exchanged notes which declared that our rights in Pearl Harbor would cease whenever the reciprocity treaty was terminated. That treaty may be terminated upon one year’s notice by either party. It grants advantages in our markets to Hawaiian trade, and concedes to us not only the use of Pearl Harbor, but excludes any other nation from leasing a port or landing, or having any special privilege in the Hawaiian Islands, without the consent of the United States.

With the Japanese element in the ascendant and the Government under Japanese control the treaty would be promptly terminated, and with it our special rights. This would be the first step taken by that active and powerful Government toward the complete incorporation of the islands into the Japanese Empire, and their possession as a strategic point in the northern Pacific from which her strong and increasing fleet would operate. The Japanese Government is now friendly, but that would be the manifest dictate of enlightened self-interest to a wise Japanese statesman.

Annexation, and that alone, will securely maintain American control in Hawaii. Resolutions of Congress declaring our policy, or even a protectorate, will not secure it. The question of a protectorate has been successively considered by Presidents Pierce, Harrison, and McKinley in 1854, 1893, and 1897, and each time rejected because a protectorate imposes responsibility without control. Annexation imposes responsibility, but will give full power of ownership and absolute control.

AMERICAN COMMERCIAL INTERESTS.

The commercial interests of the United States, according to the declarations of our most eminent public men, would be promoted and secured by the union of the two countries. In those islands is an American colony numbering over 3,000 persons, who own practically three-fourths of all the property in the country, and, under the fostering Influence of the reciprocity treaty, trade with the United States has so increased that we now consume almost all Hawaiian exports. The people of the islands purchase from us three-fourths of all their imports, and American ships carry three-fourths of all the foreign trade of the island. American influence is ascendant in the Government, and the character of the American statesmen there in power was forcibly described by Mr. Willis, our minister to Hawaii, who was sent there by Mr. Cleveland in a spirit of hostility to them, but who was a truthful, honorable man, in these words: “They are acknowledged on all sides to be men of the highest integrity and public spirit.”

Hawaiians of American origin are energetic, intelligent, and patriotic, and are holding that outpost of Americanism against Asiatic invasion. If annexation be rejected and foreign influence gets control of the islands, our interests and commerce will fall away. The American in Hawaii looks to the United States to make purchases and there he desires to send what he exports. The Japanese merchant very naturally buys all he can in Japan, and will turn all trade there that is in his power. Our trade with the Hawaiian Islands last year amounted to $18,385,000, and with annexation practically the whole trade with the Hawaiian Islands would come to the United States, and would rapidly increase.

We have now the larger part of the shipping business, 247 American ships being employed in carrying Hawaiian trade in 1896, which would be promoted and increased by annexation. Its past prosperity has depended upon the reciprocity treaty, and if that were abrogated by a party adverse to American interests gaining control this business, like all other American interests, would fall off.

ANNEXATION WOULD END FOREIGN COMPLICATIONS.

In the struggling interests that have recently come into play in the Pacific the separate existence of the Hawaiian Government is liable at any time to raise complications with foreign governments, as in the case mentioned above of the recent interposition of Japan. An independent feeble government is a constant temptation to powerful nations, in the stress of contending interests, to intermeddle and disturb the peace. Once incorporated into the territory of the United States, all this is done away.

CHARACTER OF THE POPULATION.

While the character of the comparatively small population of the Hawaiian Commonwealth is a minor consideration as compared with the transcendent importance of the possession of that strategic point in the Pacific, it may be briefly considered. It is a mixed population, 24,407 Japanese and 21,616 Chinese, or together nearly one-half of the entire 109,020 on the island; but after annexation the Asiatic element would be reduced. The contract system would be terminated, and United States restriction laws as to immigration would be applied. The Hawaiian penal code (paragraph 1571) would gradually send back the Chinese laborers. This annexation joint resolution forbids further Chinese immigration, and under it those now in Hawaii can not come to other parts of the United States. Our recent treaty with Japan, to go into effect next year enables the United States to regulate the immigration of Japanese laborers. The supply being cut off, the number of Asiatics remaining in Hawaii would be very rapidly reduced by natural causes, which are plainly shown by the movements of the Asiatic population in past years; for since 1893, though the flood of Japanese coming in has been strong, the departures each year have been half as many as the arrivals. Like the Chinese, when they have accumulated a moderate competence, the craving for home takes them back. The enormous excess of men coming shows on its face that they do not come to Hawaii to establish homes. The Hawaiian laws exclude them from homestead rights.

These constant and powerful causes operating, if annexation were carried out the Asiatic proportion of the population would rapidly diminish. There is a large element of what are called Portuguese—15,191—but of these, who are a quiet, laborious population, over 7,000 have been born there, educated in the public schools, and speak English as readily as the average American child. They are a useful, orderly people, and rapidly assimilate the American ideas and institutions which now prevail on the islands.

The British element, 2,250, the German, 1,432, and others of European origin, probably 1,000, are elements with which we are perfectly familiar in our own country, which readily sympathize and blend with our own people. They will naturally adhere and cooperate as against Asiatic influence. The native Hawaiian race is decreasing from year to year by some mysterious law which has been in operation for a century. It is reasonable to suppose that within ten years after annexation the inconsiderable population of these islands will not differ widely in character from that of many parts of the United States.

Some effort has been made to that our beet-sugar Industry would be retarded by the admission of Hawaii and the free admission of its sugar product. Raw Hawaiian sugar is now admitted free of duty under the reciprocity treaty. There is so little of it, altogether amounting to not one-tenth of our consumption, that it can not affect the general price of sugar one-tenth of a cent a pound. There are but 80,000 acres of natural sugar-cane lands In Hawaii, and they are all under cultivation, unless it be possibly some that might e irrigated by pumping water from 150 to 600 feet.

There would be one difference after annexation as to the restriction upon Hawaiian sugar. At present, under the reciprocity treaty, all unrefined Hawaiian sugar is admitted free of duty, but not refined sugar. After annexation both refined and unrefined would be admitted free and sugar-refining interests in this country may object to annexation.

It has been objected that the constitution does not confer upon Congress the power to admit “territory,” but only “States.” The same objection was raised to the acquisition of the Louisiana Purchase in 1803, because there was nothing in the Constitution expressly authorizing such admission by treaty, and Jefferson himself, who made the purchase, shared the doubt. But we have made eleven such acquisitions of territory, and the courts have sustained such action in all cases. Texas was annexed by a joint resolution of Congress similar to the one proposed now. The island of Navassa, in the Caribbean Sea, and many others have been made territory of the United States under the act of August 18, 1856, authorizing American citizens to take possession of unoccupied guano islands. They are United States territory, subject to our laws. So Midway island in the Pacific, 1,000 miles beyond Hawaii, was occupied, and Congress appropriated $50,000, which was expended trying to create a naval station there. The principle is that the power to acquire territory is an incident of national sovereignty.

The acquisition of these islands does not contravene our national policy or traditions. It carries out the Monroe doctrine, which excludes European powers from interfering in the American continent and outlying islands, but does not limit the United States; and this doctrine has been long applied to these very islands by our Government. As Secretary Blaine said, in 1881—

“The situation of the Hawaiian Islands, giving them strategic control of the north Pacific, brings their possession within range of questions of purely American policy.”

The annexation of these islands does not launch us upon a new policy or depart from our time-honored traditions of caring first and foremost for the safety and prosperity of the United States.

The committee recommend the adoption of the resolutions.

Hawai‘i’s Second Armed Conflict with the United States

Posted on July 8, 2015 by Hawaiian Kingdom

Rep. Newlands On May 4, 1898, Congressman Francis Newlands submitted a joint resolution for the annexing of the Hawaiian Islands to the U.S. House Committee on Foreign Affairs after Commodore Dewey defeated the Spanish fleet at Manila Bay, Philippines, on May 1. 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. The Report stated,

“The leading nations—England, France, Germany, Japan, Spain, and the United States—have each a Pacific Squadron. Every one of these squadrons is stronger than ours save that of Spain, which is the weakest. Had the war in which we are now engaged been with any of the other powers they might have worsted our fleet and seized the Hawaiian Islands, which are not now defended by any fortification or cannon, thus exactly reversing our recent good fortune at Manila. They would then have had a convenient base for supplies, coal, and repairs, from which to actively harry and devastate our coast. But were we in complete possession of the Hawaiian Islands and they properly prepared for defense (which eminent officers of the Army and Navy stated to the committee could be done at a cost of $500,000), our fleet, even if pressed by a greatly superior sea power, would have an impregnable refuge at Pearl Harbor, backed by a friendly population and militia, with all the resources of the large city of Honolulu and a small but fruitful country. Holding this all important strategic point, the enemy could not remain in that part of the Pacific, thousands of miles from any base, without running out of coal sufficient to get back to their own possessions. The islands would secure both our fleet and our coast (House Committee on Foreign Affairs Report to accompany H. Res. 259, May 17, 1898, 2 (House Report no. 1355, 55th Congress, 2d session).”

William_McKinley Despite objections by Senators and Representatives that foreign territory can only be acquired by treaty and not through a congressional statute, President McKinley signs the joint resolution into law on July 7, 1898, and the occupation of the Hawaiian Islands began on August 12. The war with Spain did not come to an end until April 11, 1899, after documents of ratifications of the Treaty of Paris were exchanged. Customary international law mandated the United States, as the occupying state, to establish a Military Government in order to provisionally administer the laws of the occupied state, being the laws of the Hawaiian Kingdom that stood prior to the regime change on January 17, 1893. Instead of establishing a Military Government, the U.S. authorities allowed the insurgents to maintain control until the Congress could reorganize the so-called Republic of Hawai‘i.

Camp McKinley 1898

By statute, the U.S. Congress changed the name of the Republic of Hawai‘i to the Territory of Hawai‘i on April 30, 1900. The Territorial Act stated,

“The constitution and statute laws of the Republic of Hawaii then in force, set forth in a compilation made by Sidney M. Ballou under the authority of the legislature, and published in two volumes entitled ‘Civil Laws’ and ‘Penal Laws,’ respectively, and in the Session Laws of the Legislature for the session of eighteen hundred and ninety-eight, are referred to in this Act as ‘Civil Laws,’ ‘Penal Laws,’ and ‘Session Laws’ (31 U.S. Stat. 141).”

On March 18, 1959, the U.S. Congress again by statute changed the name of the Territory of Hawai‘i to the State of Hawai‘i. The Statehood Act stated,

“All Territorial laws in force in the Territory of Hawaii at the time of its admission into the Union shall continue in force in the State of Hawaii, except as modified or changed by this Act or by the constitution of the State, and shall be subject to repeal or amendment by the Legislature of the State of Hawaii (73 U.S. Stat. 4).”

Statehood Photo

When the United States created the Territory of Hawai‘i in 1900 it surpassed “its limits under international law through extraterritorial prescriptions emanating from its national institutions: the legislature, government, and courts (Eyal Benvenisti, The International Law of Occupation 19 (1993). The purpose of this extraterritorial prescription was to conceal the occupation of the Hawaiian Kingdom and bypass the duty of administering the laws of the occupied state in accordance with the 1899 Hague Convention, II, which the United States had ratified. Article 43, provides:

“The authority of the legitimate power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and insure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”

The 1899 Hague Convention, II, was superseded by the 1907 Hague Convention, IV, and the text of Article 43 was slightly altered to read,

“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.”

The United States creation of the State of Hawai‘i in 1959, as the successor of the Territory of Hawai‘i, not only stood in direct violation of Article 43, but also the duty of non-intervention in the internal affairs of another state. This armed conflict has continued to date.

Hawai‘i’s First Armed Conflict with the United States

Posted on July 8, 2015 by Hawaiian Kingdom

Peace Palace In 2001, the Permanent Court of Arbitration acknowledged that, “in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties (Larsen v. Hawaiian Kingdom, 119 Int’l L. Rep. 566, 581 (2001).” As an independent state, the Hawaiian Kingdom was a subject of international law, which prohibited intervention in its domestic affairs by other states. According to Brownlie,

“The principal corollaries of the sovereignty and equality of states are: (1) a jurisdiction, prima facie exclusive, over a territory and the permanent population living there; (2) a duty of non-intervention in the area of exclusive jurisdiction of other states; and (3) the dependence of obligations arising from customary law and treaties on the consent of the obligor (Ian Brownlie, Principles of Public International Law 287 (4th ed. 1990).”

Should a state seek to merge into another state, international law only allows it through cession. “Cession of State territory is the transfer of sovereignty over State territory by the owner-State to another State (L. Oppenheim, International Law, vol. 1, 499 (7th ed. 1948),” says Oppenheim. “The only form in which a cession can be effected is an agreement embodied in a treaty between the ceding and the acquiring State. Such treaty may be the outcome of peaceable negotiations or of war (Id., at 500).” Through peaceful negotiations, the United States acquired by treaty, the former territories of the French in Louisiana in 1803 (8 U.S. Stat. 200), the Spanish in Florida in 1819 (8 U.S. Stat. 252), the British in Oregon in 1846 (9 U.S. Stat. 869), the Russian in Alaska in 1867 (15 U.S. Stat. 539), and the Danish in the Virgin Islands in 1916 (39 U.S. Stat. 1706). The United States acquired, through treaties of conquest, the former territories of the British in the Americas in 1783 (8 U.S. Stat. 80), the Mexicans in territory north of the Rio Grande in 1848, which includes Texas (9 U.S. Stat. 922), and the Spanish in the Philippines, Guam and Puerto Rico in 1898 (30 U.S. Stat. 1754). Hawai‘i is the only territory the United States claims without a treaty.

International law also distinguishes between the state and its government, where the latter is the physical manifestation that exercises the sovereignty of the former. Hoffman emphasizes that a government “is not a State any more than man’s words are the man himself,” but “is simply an expression of the State, an agent for putting into execution the will of the State (Frank Sargent Hoffman, The Sphere of the State or the People as a Body-Politic 19 (1894).” Wright also concluded, “international law distinguishes between a government and the state it governs (Quincy Wright, The Status of Germany and the Peace Proclamation, 46(2) Am. J. Int’l L. 299, 307 (Apr. 1952).” Therefore, a sovereign State would continue to exist despite its government being overthrown by military force. “There is a presumption that the State continues to exist, with its rights and obligations…despite a period in which there is no, or no effective, government,” explains Crawford. “Belligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State (James Crawford, The Creation of States in International Law 34 (2d ed. 2006).” Crawford states,

“The occupation of Iraq in 2003 illustrated the difference between ‘government’ and ‘State’; when Members of the Security Council, after adopting SC res. 1511, 16 October 2003, called for the rapid ‘restoration of Iraq’s sovereignty,’ they did not imply that Iraq had ceased to exist as a State but that normal governmental arrangements should be restored (Id.).”

The Hawaiian Kingdom Civil Code provides, “The laws are obligatory upon all persons, whether subjects of this kingdom, or citizens or subjects of any foreign State, while within the limits of this kingdom, except so far as exception is made by the laws of nations in respect to Ambassadors or others. The property of all such persons, while such property is within the territorial jurisdiction of this kingdom, is also subject to the laws (Hawaiian Kingdom Civil Code, §6 (Compiled Laws 1884).” The Hawaiian Kingdom Penal Code defines treason “to be any plotting or attempt to dethrone or destroy the King, or the adhering to the enemies thereof, giving them aid and comfort, the same being done by a person owing allegiance to this kingdom (Hawaiian Kingdom Penal Code, Chapter VI, sec. 1 (1869).” For any person committing the crime of treason “shall suffer the punishment of death; and all his property shall be confiscated to the government (Id., at sec. 9).”

On January 16, 1893, the United States intervened in the internal affairs of the kingdom when its diplomat—Minister John Stevens, ordered the landing of U.S. troops to actively participate in the treasonous take over of the Hawaiian government. The following day, U.S. troops forcibly removed the executive Monarch—Queen Lili’uokalani, and her Cabinet of four ministers, and replaced them with insurgents led by Hawai‘i Supreme Court Judge Sanford Dole. The insurgents’ proclamation of January 17, 1893 stated:

“All officers under the existing Government are hereby requested to continue to exercise their functions and perform the duties of their respective offices, with the exception of the following named person: Queen Liliuokalani, Charles B. Wilson, Marshal, Samuel Parker, Minister of Foreign Affairs, W.H. Cornwell, Minister of Finance, John F. Colburn, Minister of the Interior, Arthur P. Peterson, Attorney-General, who are hereby removed from office. All Hawaiian Laws and Constitutional principles not inconsistent herewith shall continue in force until further order of the Executive and Advisory Councils (Robert C. Lydecker, Roster Legislatures of Hawaii 188 (1918).”

Oath_Provisional_Gov

Once the regime change was effected, all government officers and employees were forced to sign oaths of allegiance or face termination or arrest. This being done under the oversight of U.S. troops after Minister Stevens declared Hawai‘i to be an American Protectorate on February 1, 1893. The purpose of the regime change was for the provisional government to cede, by treaty, Hawai‘i’s sovereignty and territory to the United States.

One month after the treaty of annexation was signed in Washington, D.C., on February 14, 1893, under President Benjamin Harrison and submitted to the Senate for ratification, President Grover Cleveland, Harrison’s successor, withdrew the treaty and initiated an investigation into the overthrow of the Hawaiian Government. President Cleveland concluded that the provisional government was neither de facto nor de jure, but self-declared (United States House of Representatives, 53d Cong., Executive Documents on Affairs in Hawai‘i: 1894-95, 453 (Government Printing Office 1895), and the U.S. “military demonstration upon the soil of Honolulu was itself an act of war (Id., at 451).” The President then notified the Congress that he began executive mediation with the Queen to reinstate her and her Cabinet of ministers on condition she would grant amnesty to the insurgents. The first of several meetings were held at the U.S. Legation in Honolulu on November 13, 1893 (Id., at 1241-43). An agreement was reached on December 18, 1893 (Id., at 1269-73), but President Cleveland was unable to get Congressional authorization for the use of force in order to redeploy the troops to Hawai‘i. The agreement was not carried out. This executive agreement is recognized under international law as a treaty.

On July 4, 1894, the insurgency declared the Provisional Government to be the Republic of Hawai‘i and continued to have government officers and employees sign oaths of allegiance under threat by American mercenaries who were employed by the insurgency. The proclamation of the insurgents stated,

“it is hereby declared, enacted and proclaimed by the Executive and Advisory Councils of the Provisional Government and by the elected Delegates, constituting said Constitutional Convention, that on and after the Fourth day of July, A.D. 1894, the said Constitution shall be the Constitution of the Republic of Hawaii and the Supreme Law of the Hawaiian Islands (Lydecker, at 225).”

On June 17, 1897, the day after a second treaty of annexation was signed in Washington, D.C., under President William McKinley, Cleveland’s successor; Queen Lili‘uokalani submitted a formal protest to the U.S. State Department. Her protest stated,

“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.”

President McKinley ignored the protest and submitted the treaty to the Senate for ratification. Additional protests were filed with the Senate from the people, which included a 21,269 signature-petition of members and supporters of the Hawaiian Patriotic League protesting the annexation of Hawai‘i. By March of 1898, the treaty is dead after the Senate was unable to garner enough votes for ratification.

Mauna Kea Protectors Persevere

Posted on July 1, 2015 by Hawaiian Kingdom

Over 700 protectors are victorious in preventing the TMT from resuming construction on the summit of Mauna Kea

Hilo, Hawaii (PRWEB) July 01, 2015. At approximately 12:30pm on Wednesday June 24th shouts of joy could be heard two miles away as Goodfellow Bros., Inc. with their escort of Department of Land and Natural Resources and Hawaiʻi County Police gave up their attempt to reach the summit of Mauna Kea to resume construction of the TMT (30 meter telescope). After spending over five hours to move the convoy of trucks and police officers two miles through dozens of Aloha Checkpoints, or lines of people in pule, oli, and hula, the convoy gave up and turned around after large rocks and boulders were discovered blocking the road above the last line of protectors. Pule, oli, and hula mean prayer, spiritual chant, and religious dance respectively.

Mauna Kea Protectors 1

12 protectors were arrested as the Goodfellow Bros., Inc. pushed through the dozens of Aloha Checkpoints adding to the 31 protectors arrested on April 2nd. The number of arrests Wednesday was relatively low given the number of protectors because according to Kahookahi Kanuha, their strategy was to not get arrested at the Aloha Checkpoints.

Kanuha, a protector of Mauna a Wākea who was one of the 31 arrested on April 2, 2015 and one of the 12 arrested June 24th (State of Hawai‘i v. Chase Kahookahi Kanuha, criminal no. 3DCW-15-0001042, Third Circuit Court, State of Hawai‘i), stated, “We will not allow them to further desecrate our mountain. We are not fazed by TMT’s decision and we are not fazed by the presence of law enforcement. We are also not in this for just one day. We are in this for the long haul and will protect our mountain until its safety is ensured no matter how long it takes. We will forever prevent the building of the TMT upon Mauna a Wākea until the very last aloha ʻāina lives.” Aloha ʻĀina in the Hawaiian language is patriot.

Mauna Kea Protectors 2

“The push to build the TMT telescope has also educated the public of Hawai‘i true history as a neutral country that has been under an illegal and prolonged occupation by the United States since the Spanish-American War,” continues Kanuha. “The closest parallel to Hawai‘i occupation as a neutral country would not take place until 16 years later when the Germans occupied the neutral country of Luxemburg in 1914 when World War I broke out. Hawaiʻi is the longest occupation in the history of international law.”

In 2001, the Permanent Court of Arbitration in The Hague, Netherlands, acknowledged that, “in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties.” (Larsen/Hawaiian Kingdom http://www.pca-cpa.org/showpage.asp?pag_id=1159). Unable to pass a treaty of annexation because of diplomatic protests by the late Queen Lili‘uokalani and by Hawaiian subjects people who signed a signature petition against annexation that numbered 21,269, (over 95% of the voters) the United States passed a congressional law to seize Hawai‘i during the war with Spain so they could establish a naval base at Pearl Harbor and build up the islands as a military outpost (The Kue Petition and the joint resolution of annexation). The Congress justified this action as a military necessity. Today, the U.S. military controls nearly 20% of the islands.

Mauna Kea Protectors 3

“Since the occupation began, our great-grandparents and grandparents have been brainwashed into believing a false history that we are Americans and that Hawai‘i is a part of the United States, but we now know the truth. Our generation is now learning the correct history that is now being taught in preschools, middle schools, high schools, and in the colleges. We now know that Congress cannot pass a law annexing another country, no more than Congress can pass a law today annexing Canada. We now know that we’ve been under an illegal occupation that has been disguised through lies that Hawai‘i is the 50th State of the United States. And we now know that we are protected by international law and that the destruction of our sacred mountain and the arrests of the protectors are war crimes under the Hague and Geneva Conventions,” also states Kanuha.

After Kanuha reported war crimes have been committed by TMT to Canadian authorities in Ottawa on May 13, 2015, Constable Michael Johnson of the RCMP’s Sensitive and International Investigations unit assured Kanuha that they will initiate a preliminary investigation. More information can be found in this KITV report.

“We are ready for this challenge,” Kanuha said. “The more we struggle the stronger we become. TMT has chosen the wrong country, the wrong time and the wrong people. The TMT will not be built upon Mauna a Wākea because the people and international law will not allow it. We will win. We have no other option.”

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Photos generously provided with permission by Darren Miller Photography

For the latest updates and news directly from the protectors on Mauna a Wākea please visit our blog at https://maunaawakea.com.

Kuʻuipo Freitas
1-808-769-2470
kuuipomana@gmail.com

Kahoʻokahi Kanuha
1-808-936-4249
kahookahi@gmail.com

Truthout: Hawai‘i’s Legal Case Against the United States

Posted on June 20, 2015 by Hawaiian Kingdom

By Jon Letman, Truthout

“You can’t spend what you ain’t got; you can’t lose what you ain’t never had.” – Muddy Waters

“How long do we have to stay in Bosnia, how long do we have to stay in South Korea, how long are we going to stay in Japan, how long are we going to stay in Germany? All of those: 50, 60 year period. No one complains.” – Sen. John McCain

Imagine if you grew up being told that you had been adopted, only to learn that you were, in fact, kidnapped. That might spur you to start searching for the adoption papers. Now imagine that you could find no papers and no one could produce any.

That’s how Dr. David Keanu Sai, a retired Army Captain with a PhD in political science and instructor at Kapiolani Community College in Hawaii, characterizes Hawaii’s international legal status. Since 1993, Sai has been researching the history of the Kingdom of Hawaii and its complicated relationship to the United States.

Over the last 17 years, Sai has lectured and testified publicly in Hawaii, New Zealand, Canada, across the US, at the United Nations and at the Permanent Court of Arbitration at The Hague on Hawaiian land issues on Hawaii’s international status and how Hawaii came to be regarded as a US territory and, eventually, the 50th state.

To explain why he and others insist that Hawaii is not now and never has been lawfully part of the United States, Sai presents an overview of Hawaii’s feudal land system and its history as an independent, sovereign kingdom prior to the overthrow of Queen Liliuokalani on January 16, 1893.

Sai likens his lectures to a scene in the film The Matrix in which the character Morpheus tells Neo, “Remember, all I’m offering is the truth. Nothing more.”

“You guys are going to swallow the little red pill and will find that what you thought you knew may not be what actually was,” Sai warns his audiences. Like The Matrix, which is an assumption of a false reality, Hawaii’s history needs to be reexamined through a legal framework, he says. “What I’ve done is step aside from politics and power and look at Hawaii not through an ethnic or cultural lens, but through the rule of law.”

“A lot of sovereignty groups assume they don’t have it. Sovereignty never left. We just don’t have a government.” – Dr. David Keanu Sai

Sai’s lectures review history from 1842, when the Hawaiian Kingdom under King Kamehameha III sent envoys to France, Great Britain and the United States to secure recognition of Hawaii’s sovereignty. US President John Tyler recognized Hawaiian independence on December 19, 1842, with France and Great Britain following in November of 1843. November 28 became recognized as La Kuokoa (Independence Day).

Over the next 44 years, Hawaiian independence was recognized by more than a dozen countries across Europe, Asia and the Pacific, with each establishing foreign embassies and consulates in Hawaii. By 1893, the Kingdom of Hawaii had opened 90 embassies and consulates around the world, including Washington, DC, with consul generals in San Francisco and New York. The United States opened its own embassy in Hawaii after entering into a treaty of friendship, commerce and navigation on December 20, 1849.

In 1854, in response to concerns about naval battles potentially being fought in the Pacific region during the Crimean war, King Kamehameha III declared Hawaii to be a neutral state, a “Switzerland of the Pacific.”

As recently as 2005, the 9th Circuit Court of Appeals acknowledged that in 1866, “the Hawaiian Islands were still a sovereign kingdom”; prior to that, in 2004, the Court referred to Hawaii as a “co-equal sovereign alongside the United States.” Likewise, in 2001, the Permanent Court of Arbitration at The Hague acknowledged in an arbitration award that “in the 19th 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 … .”

Hawaii’s fate changed forever on January 16, 1893 when, motivated by influential naval officer Alfred Thayer Mahan and the US Ambassador to Hawaii – with support from an expansionist US Congress wishing to extend its military presence into the Pacific – US troops landed on Oahu in violation of Hawaiian sovereignty and over the protest of both the Governor of Oahu and the Kingdom of Hawaii’s Minister of Foreign Affairs.

One day later, six ethnic European Hawaiian subjects, including Sanford Dole and seven foreign businessmen, under the name the “Citizen’s Committee of Public Safety,” with the protection of the US military, formally declared themselves to be the new provisional government of the Hawaiian Islands – effectively a bloodless coup.

This marriage of convenience between non-ethnic Hawaiian subjects who wished to operate their sugar cane businesses tariff-free in the American market and a US government and military seeking to advance its own position in the Pacific conspired to overthrow the government of a sovereign foreign nation, Sai tells his audiences.

One month later, members of a group claiming to be the new provisional government of Hawaii traveled to Washington, where they signed a “treaty of cession” which went from President Benjamin Harrison to the US Senate. Queen Liliuokalani’s protests to Harrison were ignored.

When the new US president Grover Cleveland assumed power, he was promptly presented with the Queen’s protest demanding an investigation of their diplomat and US troops, as well as of the coup. Cleveland, after withdrawing the treaty before it could be ratified by the Senate, initiated an investigation called the Blount Report. The investigation found that both the US military and the US Ambassador to Hawaii had violated international law and that the US was obliged to restore the government of the Hawaiian Kingdom to its pre-overthrow status.

In November of 1893, President Cleveland negotiated an agreement to fully restore the government of Queen Liliuokalani under the condition she grant amnesty to all involved in her overthrow. A formal declaration accepting Cleveland’s terms of restoration came from the queen in December 1893.

This executive agreement between President Grover Cleveland and Queen Liliuokalani, Sai says, is binding under both international and US federal law and precludes any other legal actions under the doctrine of estoppel. Yet the US Congress obstructed President Cleveland’s efforts to fulfill his agreement with the queen, just as a self-proclaimed provisional government named itself the “Republic of Hawaii.”

By the spring of 1897 Cleveland had left office, succeeded by President William McKinley. Soon after, representatives of the “Republic of Hawaii” attempted to fully cede all public, government and crown lands to the United States, even as Liliuokalani continued protesting to the US State Department.

In support of the queen and fighting attempts to cede Hawaii, some 38,000 Hawaiian subjects signed petitions against annexation, and by March of 1898, a second attempt to annex Hawaii failed.

Here things accelerate, Sai explains. With the outbreak of war with Spain in April 1898, the drive to expand US naval power into the Pacific to counter Spanish influence in the Philippines and Guam reached a new urgency.

Two weeks after declaring war on Spain, US Rep. Francis Newlands (D-Nevada) submitted a resolution calling for the annexation of Hawaii by the United States. Influential military figures like Rear Admiral Alfred T. Mahan and General John Schofield testified that the possession of Hawaii by the United States was of “paramount importance.” It was in this atmosphere that the Newlands Resolution moved from the House to the Senate and became a joint resolution which President McKinley signed, claiming to have successfully annexed the Hawaiian Islands.

On August 12, 1898, the Hawaiian flag was lowered, the American flag raised, and the Territory of Hawaii formally declared.

But Sai points out that a Congressional joint resolution is American legislation restricted to the boundaries of the United States. The key to Hawaii’s legal status, he says, remains with the 1893 executive agreement between two heads of state: President Grover Cleveland and Queen Liliuokalani.

Unlike other land acquisitions made by cession and voluntary treaties with the French, Spanish, British, Russia and the 1848 Guadalupe Hidalgo Treaty that ended the Mexican-American war, Sai notes there is no treaty of cession, and thus no ceded lands, by then-acting head of state Queen Liliuokalani.

Today, one hundred and seventeen years after US Marines landed on Oahu and helped coup leaders overthrow the Hawaiian Kingdom, what Sai calls “the myth of Hawaiian statehood” is perpetuated, indeed celebrated, on the third Friday of each August, as Statehood Day.

“America today can no more annex Iraq through a joint resolution than it could acquire Hawaii by joint resolution in 1898. Saddam Hussein’s government, the Baathist party … was annihilated by the United States. But by overthrowing the government, that did not also mean Iraq was overthrown as a sovereign state. Iraq still existed, but it did not have a government,” says Sai.

In his doctoral dissertation, Sai successfully argued that to date, under international laws, Hawaii is in fact not a legal territory of the Unites States, but instead a sovereign kingdom, albeit one lacking its own acting government.

The entity that overthrows a government, Sai says, bears the responsibility to administer the laws of the occupied state.

Sai says that despite what people have been led to believe, the Congressional joint resolution and US failed attempts to annex Hawaii are American laws limited to American territory. He stresses that the executive agreement of 1893 between President Cleveland and Hawaii’s Queen continues to take precedence over any other subsequent actions.

Sai says this all has the potential to completely alter any claims on public or private land ownership, all State of Hawaii government bodies and the presence and activities of the US military in Hawaii, specifically the US Pacific Command (PACOM), the preeminent military authority overseeing operations in the Pacific, Oceania and East Asia.

Among the potential impacts of Sai’s argument is the possibility that the United States’ oldest and arguably most important strategic power center (PACOM’s headquarters are at Camp Smith, near Pearl Harbor) is now facing a legal challenge and occupies territory of questionable legal status.

Sai has presented this information not only in arbitration proceedings at the Permanent Court of Arbitration at the World Court at the Hague and in a complaint filed with the UN Security Council, but in 2001, at the invitation of Lieutenant General James Dubik, before the officer’s corps of the 25th Infantry Division at Schoefield Barracks on Oahu.

After Sai’s presentation before some one hundred officers and their spouses, he says, “You could hear a pin drop. They knew what I was talking about — I didn’t have to say ‘war crimes.'” Sai cited the regulations on the occupation of neutral countries in Hague Convention No. 6.

University of Hawaii Press, which reviewed and approved Sai’s dissertation for publication, indicates Sai’s arguments have “profound legal ramifications.” Sai himself says the case calls into question the legal authority of Senator Daniel Inouye, President Obama and others. After all, both Daniel Inouye and Barack Obama were born in Hawaii which, Sai points out, is not a legal US territory.

On June 1, 2010, Sai advanced his case and filed a lawsuit with the US District Court for the District of Columbia naming Barack H. Obama, Hillary D. R. Clinton, Robert M. Gates, (now former) Governor Linda Lingle and Admiral Robert F. Willard of the US Pacific Command as defendants.

Sai cites the Liliuokalani assignment of executive power as a binding legal agreement which extends from President Cleveland to all successors, including President Obama and his administration, to administer Hawaiian Kingdom law prior to restoring the government.

In the suit, Sai seeks a judgment by the court to declare the 1898 Joint Resolution to provide for annexing the Hawaiian Islands to the United States to be in violation of Hawaiian sovereignty and unconstitutional under US law.

In November, Sai sought to add to the suit as defendants the ambassadors of 35 countries which he says unlawfully maintain consulates in Hawaii in violation of Hawaiian Kingdom law and treaties. These countries include China, India, Russia, Brazil, Australia, Japan and smaller nations like Kiribati, Palau and the tiny enclave of San Marino.

With such a bold case that challenges the very top tier of the United States government and military, it isn’t surprising that not everyone supports Sai’s approach. Some Hawaiian activists privately say Sai’s efforts have the potential to adversely impact other forms of federal recognition such as the Akaka Bill, while others express concerns that such a lawsuit could be at best ineffective and, at worst, result in bad laws.

“In the creation of a society, it’s not only historical justification upon which we need to build Hawaiian sovereignty. We need to bring about better quality of life after independence returns.” – Poka Laenui

Poka Laenui, chairman of the Native Hawaiian Convention, an international delegation of Hawaiians which examines the issues of Hawaiian sovereignty and self-governance, says he does not dispute Sai’s historical claims, nor does he disagree that the US occupies the Hawaiian Islands in violation of international law. He says Sai has made a “very positive contribution.”

He does, however, suggest that Sai’s efforts toward deoccupation could go further or be more inclusive. “I believe what should also be included is decolonization. Along with [Sai’s] analysis, there are many more approaches that are legitimate.”

“Decolonization is a very viable position as well. I’m saying occupation and colonization are on the same spectrum, but colonization goes far deeper. It affects economics, education and value systems like we have in Hawaii today.”

“Hawaii has been squarely named as a country that needs to be decolonized and the US has not followed the appropriate, very clear procedures already set out.” Laenui points out that the United States listed Hawaii as a territory to be decolonized in 1946 in the UN General Assembly Resolution 66 (1).

“We need not only to look at the historical, legal approach, but beyond that … we need to change the deep culture of Hawaii to build a better quality of life,” Laenui says.

Lynette Hiilani Cruz is president of the Ka Lei Maile Alii Hawaiian Civic Club and an assistant professor of anthropology at Hawaii Pacific University. She supports Sai’s efforts and says he provides a “dependable legal basis” for challenging the legality of US claims on Hawaii.

But she also points out there are native Hawaiians who, in spite of the history, are reluctant to associate themselves with the kind of legal challenge Sai is pursuing.

And while some would rather forget historical events, Cruz says, “It is our history, whether you like it or not.” Cruz suggests people visit Sai’s website <hawaiiankingdom.org> and study the original historical documents in order to better understand the basis for Sai’s legal claims.

Dr. Kawika Liu, an inactive attorney with a PhD in politics and a practicing physician, says, “I support many canoes going to the same destination. I’m just a little leery of potentially ending up in a Supreme Court that is extremely hostile to indigenous claims. From my perspective, having litigated a number of native Hawaiian rights cases, I am not sure Sai will make it past procedural matters.”

Liu believes Sai’s characterization of historical and political events is accurate, but says, “You can be very correct in the way you characterize history and still be shot down because of issues of jurisdiction.”

“We’re operating in the courts of the colonizer … and they have their own agenda, which is, to me, reinforcing US hegemony.”

Liu sees the greatest benefit of Sai’s work as raising awareness of the issue. “I think the more awareness that’s raised – eventually the change is going to come.”

One academic who thinks Sai is on the right track is Dr. Jon Kamakawiwoole Osorio, professor of Hawaiian studies at the University of Hawaii. Osorio specializes in the politics of identity in the Hawaiian Kingdom and the colonization of the Pacific and served on Sai’s dissertation committee.

He says Sai knows international law and the laws of occupation as they pertain to Hawaii as well as any academic in Hawaii today.

Yet he recognizes Sai has detractors – those who feel that any kind of interpretation which exalts Western law does a disservice to native people and institutions which thrived without those laws for millennia. Osorio also says that while arguing that Hawaii has a solid international case sounds really good, it doesn’t go very far if the US government simply refuses to acknowledge that case or respond in any way.

So does Osorio think Sai’s efforts are counterproductive or a waste of time?

“I don’t think that’s the case,” Osorio says. “I think most people believe Keanu Sai has really added a tremendous new perspective of the kingdom, lawmaking and the creation of constitutional law in Hawaii.”

He also believes Sai’s argument that sovereignty, once conferred, doesn’t disappear just because it is occupied by another country.

What Sai may be pursuing, Osorio suggests, is to push for a definitive stance by the US government which may take the form of a denial that Hawaiians can claim sovereignty.

“I think Sai’s attempt to push the US, to corner it and force it to acknowledge that it holds Hawaii only by raw power … is an important revelation that would have really important political ramifications.”

“Sai says our sovereignty is still intact. That has been a tremendous gift for the Hawaiian movement because it keeps many of us pursuing independence from the United States instead of simply settling for some other kind of status (such as the Akaka Bill) because we feel like we aren’t legally entitled to it,” Osorio says.

“The violence done against the Hawaiian kingdom at the end of the [19th] century was no less violent just because not a lot of people were killed,” Osorio says. “It violated our laws, it violated our trust, it violated the relationship between our people and our rulers and it continues to this day to stand between any kind of friendly relations between Hawaiians who know this history and the United States.

“Sai’s analysis helped many of us to understand more completely that we don’t have to think of ourselves as Americans — ever.”

Ho‘i I Ka Piko: Island Wide Solstice Prayer for Mauna Kea

Posted on June 17, 2015 by Hawaiian Kingdom

Hawai‘i Island: La Ho‘iho‘i Ea (Restoration Day) Celebration

Posted on June 10, 2015 by Hawaiian Kingdom

In the summer of 1842, Kamehameha III moved forward to secure the position of the Hawaiian Kingdom as a recognized independent state under international law. He sought the formal recognition of Hawaiian independence from the three naval powers of the world at the time—Great Britain, France, and the United States. To accomplish this, Kamehameha III commissioned three envoys, Timoteo Ha‘alilio, William Richards, who at the time was still an American Citizen, and Sir George Simpson, a British subject. Of all three powers, it was the British that had a legal claim over the Hawaiian Islands through cession by Kamehameha I, but for political reasons the British could not openly exert its claim over the other two naval powers. Due to the islands prime economic and strategic location in the middle of the north Pacific, the political interest of all three powers was to ensure that none would have a greater interest than the other. This caused Kamehameha III “considerable embarrassment in managing his foreign relations, and…awakened the very strong desire that his Kingdom shall be formally acknowledged by the civilized nations of the world as a sovereign and independent State.”

While the envoys were on their diplomatic mission, a British Naval ship, HBMS Carysfort, under the command of Lord Paulet, entered Honolulu harbor on February 10, 1843, making outrageous demands on the Hawaiian government. Basing his actions on complaints made to him in letters from the British Consul, Richard Charlton, who was absent from the kingdom at the time, Paulet eventually seized control of the Hawaiian government on February 25, 1843, after threatening to level Honolulu with cannon fire. Kamehameha III was forced to surrender the kingdom, but did so under written protest and pending the outcome of the mission of his diplomats in Europe. News of Paulet’s action reached Admiral Richard Thomas of the British Admiralty, and he sailed from the Chilean port of Valparaiso and arrived in the islands on July 25, 1843. After a meeting with Kamehameha III, Admiral Thomas determined that Charlton’s complaints did not warrant a British takeover and ordered the restoration of the Hawaiian government, which took place in a grand ceremony on July 31, 1843. At a thanksgiving service after the ceremony, Kamehameha III proclaimed before a large crowd, ua mau ke ea o ka ‘aina i ka pono (the life of the land is perpetuated in righteousness). The King’s statement became the national motto.

The envoys eventually succeeded in getting formal international recognition of the Hawaiian Islands “as a sovereign and independent State.” Great Britain and France formally recognized Hawaiian sovereignty on November 28, 1843 by joint proclamation at the Court of London, and the United States followed on July 6, 1844 by a letter of Secretary of State John C. Calhoun. The Hawaiian Islands became the first Polynesian nation to be recognized as an independent and sovereign State.

The ceremony that took place on July 31 occurred at a place we know today as “Thomas Square” park, which honors Admiral Thomas, and the roads that run along Thomas Square today are “Beretania,” which is Hawaiian for “Britain,” and “Victoria,” in honor of Queen Victoria who was the reigning British Monarch at the time the restoration of the government and recognition of Hawaiian independence took place.

Video: Kanaka Express Show on Hawai‘i’s Prolonged Occupation

Posted on June 7, 2015 by Hawaiian Kingdom

https://vimeo.com/129756298

Kanaka Express Host Kale Gumapac interviews Dr. Keanu Sai, Attorney Dexter Ka‘iama and Professor Kaleikoa Ka‘eo. The three being interviewed share their work regarding the prolonged occupation of the Hawaiian Kingdom and the movement to ultimately bring the American occupation to an end. The show was filmed at the Akaku studio in Kahului, Maui on May 20, 2015.

Hawaiian Kingdom Blog Named Best of Law Blogs

Posted on June 5, 2015 by Hawaiian Kingdom

On June 5, 2015, YouBlawg has twittered the Hawaiian Kingdom blog (@HKSpokesperson) to be the best of the law blogs. YouBlawg is based in the United Kingdom.

From its website: “YouBlawg is a law blog or “blawg” founded by former lawyer Gavin Ward in 2010 and is designed for law firms, lawyers, law students and other legal professionals to contribute their own legal knowledge and opinions on legal news, with the aim of helping consumers and businesses to find valuable legal information and connect them with the best lawyer for them.”

Alleviating the Confusion: Swiss Criminal Procedures In Light of Civil Law Tradition

Posted on June 5, 2015 by Hawaiian Kingdom

What people may not know is that Switzerland’s criminal procedures are very different from the United States. Switzerland operates under a “civil law tradition” while the United States operates under a “common law tradition” that came from the English common law because the original thirteen States of the United States were formerly British colonies. In contrast, the civil law has codes and the common law does not. Civil law countries provide legal codes that explain all matters that can be brought before the courts, the applicable procedure of criminal investigations, the punishment for crimes, and trial. Switzerland’s codes are the Swiss Criminal Code (SCC) and the Swiss Criminal Procedure Code (SCPC). Common law countries do not provide comprehensive codes, but rather rely on numerous statutes and precedence set by decisions of judges, which is called stare decisis.

A very good compare and contrast of the two legal systems can be found in Dr. Vivienne O’Connor’s publication “Common Law and Civil Law Traditions.”

Another contrast is that in common law countries, judicial proceedings are adversarial between the prosecutor and the defendant, with the judge merely serving as the referee. In civil law countries, the proceedings are not adversarial and the judges play an integral role in both the criminal investigation stage as well as the trial stage. Under Swiss law (Article 17, SCPC), as in most civil law countries, judges can conduct criminal investigations, in addition to the police and the prosecutor. In Switzerland, these judges are called investigating magistrates and have more expanded powers than the prosecutor or police. Once an investigating magistrate concludes the criminal investigation he/she can seek indictments, and then the evidence and interviews that were conducted would be turned over to another judge or set of judges who will preside over the criminal trial. Jury trial is a common law tradition and not civil law. There are no jury trials in civil law countries, which includes Switzerland.

According to Dr. O’Connor, “International treaties and conventions also are sources of law in civil law countries. Most civil law countries are ‘monist’ meaning that when the country ratifies a treaty, it automatically becomes part of domestic law. This means that a judge can automatically apply it and a party in court can rely on international law in proceedings. In some countries, the judge can declare a national law or provision to be invalid if it conflicts with an international treaty or convention that the country has ratified.”

The Swiss Criminal Code provides for the Federal Attorney General to conduct criminal investigations for war crimes, but their decisions are subject to review by the “objections authority” of the Swiss Federal Criminal Court if someone is objecting to “the procedural acts and decisions [of an investigating magistrate, prosecutor or police] not subject to appeal (Article 20, SCPC).” This was the role the objection chambers of the Swiss Federal Criminal Court held in the case of Mr. Kale Gumapac and the unnamed Swiss citizen who were alleging that war crimes were committed against them in the Hawaiian Islands.

What is the significance of the Swiss Federal Criminal Court’s reciting of Gumapac’s invoking his rights as a Hawaiian subject under the 1864 Hawaiian-Swiss treaty, “which wasn’t cancelled”? At first, it may appear that the Court was merely reciting Gumapac’s position that the treaty wasn’t cancelled, but did Gumapac state or even imply that it was he who was stating that the treaty wasn’t cancelled, or was it the three-judge panel that made that conclusion. The Court in making specific reference to Gumapac’s amended complaint dated January 22, 2015, stated, “that, in addition, by way of a letter dated January 22, 2015, [Dr. Keanu] Sai, in the name of Kale Kepekaio Gumapac…contacted the office of the Federal Attorney General and requested that criminal proceedings against Josef Ackermann…, the former CEO of Deutsche Bank National Trust Company…be opened and in this connection invoked rights deriving from Art. 1 of the friendship treaty between the Swiss Confederation and the then Hawaiian Kingdom of July 20, 1864, which has not been cancelled.”

In order to determine whether it was Gumapac who made this statement or the Court we need to look at what was stated in the amended complaint.

Gumapac, by his attorney-in-fact Dr. Sai, amended the original complaint dated December 7, 2014. The amended complaint states that Gumapac’s “initial complaint was based on universal jurisdiction, but in light of the fact that Josef Ackermann, who served as the Chief Executive Officer for Deutsche Bank when the war crimes were committed against [Gumapac], is a Swiss citizen, Mr. Gumapac is amending his complaint to include active personality jurisdiction and is invoking his rights as a Hawaiian subject under Article 1 of the 1864 Hawaiian-Swiss Treaty, which provides: “Hawaiians shall be received and treated in every canton of the Swiss Confederation, as regards their persons and their properties, on the same footing and in the same manner as now or may hereafter be treated, the citizens of other cantons.”

Active personality jurisdiction is when the accused is a Swiss citizen, and universal jurisdiction is where the alleged war crime was committed outside of Swiss territory by non-Swiss citizens against non-Swiss citizens.

The amended complaint then follows, “Therefore, according to Articles 118 and 119 of the Swiss Criminal Procedure Code (S-CPC), Mr. Gumapac is expressly declaring that he has suffered grave harm and respectfully demands that your office initiate an immediate investigation into the war crime of pillaging committed by Josef Ackermann being a Swiss citizen residing within the territory of the Swiss Confederation.” Gumapac made no statement that the treaty wasn’t cancelled, but rather was operating on the premise that the treaty remained binding on the Swiss authorities that were obligated to treat Gumapac in the same manner as Swiss citizens are treated in any of the cantons.

The question of whether or not a treaty has or has not been cancelled is a question of fact and not a question of law. The treaty itself will provide the process by which it can be terminated. For the Swiss treaty, Article VIII requires notice of intention to terminate by either of the contracting countries, and once the other country receives the notice of termination the treaty will terminate in 12 months. In the absence of any notice of termination, the “treaty will continue obligatory.”

Another way a treaty can be cancelled is if one of the countries that is a party to the treaty, ceases to exist as a country under international law. Without the existence of one of the parties there can be no treaty, because a treaty, by definition, is an agreement between two or more States. Therefore, if the Hawaiian Kingdom were annexed by the United States under international law, it would have consequently cancelled the Hawaiian-Swiss Treaty and replaced it with the U.S.-Swiss Treaty. This was specifically stated in the 1898 U.S. Congressional joint resolution of annexation, which read, “The existing treaties of the Hawaiian Islands with foreign nations shall forthwith cease and determine, being replaced by such treaties as may exist, or as may be hereafter concluded, between the United States and such foreign nations.”

A joint resolution of Congress has no force and effect beyond U.S. territory and, as such, cannot have the power to cancel the treaty between Switzerland and the Hawaiian Kingdom. In other words, the only way to annex Hawai‘i and to cancel its treaty with Switzerland was for the United States to have a treaty with Hawai‘i that would have the effect of merging Hawai‘i into the United States. Only then would it have the effect of canceling the treaty with Switzerland. However, there is no treaty, but rather only a unilateral Congressional action.

When the Swiss Federal Criminal Court stated that the Hawaiian-Swiss treaty “wasn’t cancelled,” it was not a conclusion of law, but rather a conclusion of fact that supported Gumapac’s invoking of his rights under Article 1 of the treaty. In his report dated February 3, 2015, the Prosecutor, himself, also made the same conclusion regarding the status of the treaty. The report (German) (English translation) stated, “On January 22, 2015, Kale Kepekaio GUMAPAC confirmed in writing the accusations against Joseph ACKERMANN and in addition pointed out his rights stemming from Art. 1 of the friendship treaty between the SWISS CONFEDERATION and the then HAWAIIAN KING of July 20, 1864, which was never cancelled.”

Again this statement that the treaty was never cancelled was the Prosecutor’s conclusion and not Gumapac’s. Both the Prosecutor and the three-judge panel made the statement that the Hawaiian-Swiss Treaty wasn’t cancelled. Therefore, there is no dispute between the Swiss authorities and the war crime victims as to the treaty’s continued existence.

When the Court received the objection to the decision made by the Prosecutor on April 8, 2015, the President of the Objections Chamber ordered, by letter dated April 9, 2015, that the Prosecutor turn over all records of his investigation. The order stated, “In the matter mentioned above, a complaint against your decision not to engage of February 15, 2015 has been received at the Federal Criminal Court. You are requested to furnish the Federal Criminal Court right away with the records established in the abovementioned matter (including documents of receipt) with an index of the records.” This is a clear example of the civil law tradition where judges are involved in a criminal investigation. In common law countries such as the United States, there is no judicial oversight of a prosecutor’s decision to conduct a criminal investigation.

The three-judge panel of the Federal Criminal Court’s Objection Chambers would not have restated the allegations of war crimes in its April 28, 2015 decision unless the alleged war crimes met the statutory definition of war crimes under Swiss law. If not, it would have been deemed frivolous in this preliminary stage of the investigation and the Swiss Criminal Court would have dispensed with the criminal investigation and make no mention of the allegations. Nowhere in the decision did the three-judge panel state or even imply that the Prosecutor’s decision was going to be upheld.

Even more stunning, the decision specifically named Josef Ackermann, former CEO of Deutsche Bank, and officials of the State of Hawai‘i—Governor Neil Abercrombie, Lieutenant Governor Shan Tsutsui, Director of Taxation Frederik Pablo, and Deputy Director of Taxation Joshua Wisch. Under the civil law tradition, the decision by the Objections Chamber of the Federal Criminal Court is a part of the criminal investigation stage of these proceedings.

For the purposes of Swiss law, a war crime is defined as an international armed conflict, as between two or more States, even when occupation of the other State takes place without any armed resistance. The Hawaiian Kingdom was occupied by the United States on August 12, 1898, when the United States was waging war in the Spanish colonies of the Philippines and Guam. This was very similar and analogous to the German occupation of Luxemburg from 1914-1918 as it was waging war against France during World War I. Both the American occupation of Hawai‘i and the German occupation of Luxemburg took place without armed resistance.

From the decision (German) (translation to English), it appeared that the three-judge panel was prevented from reversing the Prosecutor’s decision because of a technicality, which was failure to submit the objection to the Court within the 10-day period allowed by law. In this case, Swiss law (Article 20, SCPC) allows the objections authority of the Swiss Federal Supreme Court’s Criminal Law Section to accept an objection to a decision made by “courts of the first instance,” which, in this case, is the three-judge panel of the Swiss Federal Criminal Court. Again, here is another example under the civil law tradition of having another level of judges overseeing a criminal investigation.

On May 29, 2015, the Clerk’s office of the objections authority of the Swiss Supreme Court’s Criminal Law Section accepted the objection, and assigned it case number 6B_563/2015. The Clerk’s office stated that the proceedings are against the Federal Criminal Court, Objections Chamber, as well as the Office of the Swiss Federal Attorney General. It further stated, “Possible procedural orders, as far as necessary, will follow.”

Swiss Federal Criminal Court Recognizes Switzerland’s Treaty with the Hawaiian Kingdom was Never Cancelled and Implies Hawai‘i was Never Annexed

Posted on May 30, 2015 by Hawaiian Kingdom

In a cogent and thoughtful decision the Swiss Federal Criminal Court Objections Chamber recently issued two important and profound statements as to the sovereignty of the Hawaiian Kingdom. Although the Court held that, the filing was untimely and no longer appropriate in a Swiss Federal Criminal Court. The case has now been moved to the Criminal Law section of the Swiss Federal Supreme Court in Lausanne. These procedural issues do not diminish the two critical statements the Court made about the status of Hawai‘i.

Download Federal Criminal Court Decision (German) (translation to English)

First, the Court stated that the 1864 Treaty between Switzerland and the Hawaiian Kingdom was never canceled—and is still in effect. Second, the Court identified certain officials and former officials of the State of Hawaii by name as possibly subject to a continuing investigation as to alleged war crimes. Although the Court ruled the filing was untimely, the Court did provide a means by which the plaintiffs could obtain review in the Swiss Supreme Court.

Professor Williamson B.C. Chang, a law professor at the University of Hawai‘i at Manoa, called this statement by the Swiss Court “an extraordinary assessment of the status of Hawaii with enormous ramifications. It confirms my own views that the United States never acquired the Hawaiian Islands, either in 1898 or thereafter.”

Professor Chang also stated, “Indeed, the fact that the statement was made, given that there was no need to make such a statement, renders the statement even more significant. If Hawai‘i had been annexed then all treaties of the Hawaiian Kingdom would have become void.”

The U.S. congressional joint resolution that purportedly annexed Hawai‘i in 1898 during the Spanish-American War stated, “The existing treaties of the Hawaiian Islands with foreign nations shall forthwith cease and determine, being replaced by such treaties as may exist, or as may be hereafter concluded, between the United States and such foreign nations.” Obviously the Swiss Court was not swayed by the language of the joint resolution of Congress, and therefore concluded that the Hawaiian-Swiss Treaty was not cancelled.

To Professor Chang, the statement of the Swiss Court directly contradicts the official position of the United States as currently maintained by the United States Department of State, Office of the Historian, on its official website, “The McKinley Administration also used the [Spanish-American] war as a pretext to annex the independent state of Hawaii… At McKinley’s request, a joint resolution of Congress made Hawaii a U.S. territory on August 12, 1898.”

Second, and equally significant, the Objections Chamber of the Swiss Federal Criminal Court specifically named present and former State of Hawai‘i officials as well others who are defendants and alleged war criminals. Again, the Swiss Criminal Court dismissed on the grounds of untimeliness, nevertheless, the Court held that plaintiffs had a pathway to bring their claims before the Swiss Supreme Court. Thus, the actions of the Defendants will continue to be examined before that Court.

The naming of names is significant because the Court had no need to identify these individuals. Those named are the former Chief Executive Officer of Deustch Bank, Joseph Ackerman, the former Governor of the State of Hawai‘i, Neil Abercrombie, current Lieutenant Governor Shan Tsutsui, former Director of the Department of Taxation, Frederik Pablo, and former deputy Director, Joshua Wisch.

The Swiss criminal action began when the Swiss Attorney General received a war crimes report by Dr. Keanu Sai, as the attorney-in-fact for Mr. Kale Gumapac, a Hawaiian subject, who was a victim of war crimes in December 2014. Dr. Sai also represents another war crimes victim who is a Swiss citizen residing in the Hawaiian Islands, but his name is kept confidential for safety concerns. Prosecutor Andreas Muller from the Attorney General’s Competence Centre for Terrorism and Competence Centre for International Criminal Law initiated a war crimes investigation.

Prosecutor Muller abandoned the investigation on February 3, 2015, and Dr. Sai objected to the Swiss Federal Criminal Court Objections Chamber seeking an order to direct the Prosecutor to complete the investigation and proceed with the prosecution.

The Objections Chamber concluded they were prevented from hearing the objection because of a previous court case that stated if a private courier, such as FedEx, was used to submit documents to a court it would only recognize the date it was received and not the date it was postage marked. There was a 10-day period to object after Dr. Sai received the Prosecutor’s decision and report on March 23, 2015. The deadline to object was April 2, 2015. Although, the objection was sent via FedEx on April 1, 2015, it did not arrive at the Objections Chamber until April 8.

“When I received the Prosecutor’s report I needed to get it translated into the English language in order to draft the objection,” said Dr. Sai. “Once I got the translation, I wrote the objection, which was 12 pages, and then I proceeded to get it translated into German before sending it off. After the translation was completed on April 1, I immediately went to FedEx.” At the request of Dr. Sai, the Clerk of the Federal Criminal Court forwarded the case to the Federal Supreme Court in Lausanne.

In a letter (German) (translation to English) to Dr. Sai from the Criminal Law Section of the Federal Supreme Court dated May 21, 2015, the Clerk of the Court stated the Supreme Court will accept the case if Dr. Sai would “explicitly state by June 5, 2015 that the Federal Supreme Court should accept and treat [his] submission as an objection in criminal matters.” As directed, Dr. Sai drafted a letter dated May 24, 2015 (German) (translation to English), which stated “I hereby explicitly state that the Federal Supreme Court should accept and treat my submission in the above case as an objection in criminal matters pursuant to the provisions of the Federal Supreme Court Act (BGG) of June 17, 2005.” Dr. Sai’s letter arrived in Switzerland by a personal courier and mailed to the Supreme Court through the Swiss postal service on May 28, 2015, which met the deadline of June 5.

Big Island News Video: Kanuha Talks About Delivering War Crimes Complaint To Canada

Posted on May 25, 2015 by Hawaiian Kingdom

HILO – On May 14, it was reported that a war crimes complaint was filed in Canada in connection with the planned Thirty Meter Telescope project on Mauna Kea. Since then, Kaho‘okahi Kanuha – one of the two individuals that made the international trip to deliver the complaint – returned to Hawaii. Kanuha is a spokesperson for the group that is blocking TMT from the summit of Mauna Kea. We spoke to him in Hilo on Saturday afternoon, May 16th.

The complaint was drafted by Kanuha’s attorney Dexter Kai’ama. Kanuha was accompanied by Dr. Keanu Sai, who drafted a detailed War Crimes Report at the request of Kai’ama. Shortly after the headline grabbing arrests that took place on the mountain on April 2, Big Island Video News spoke to both men.

One of the 31 arrested on Mauna Kea was Kanuha. Since then, his role in the movement has transformed as he takes on speaking engagements across the islands, although his position in regards to the TMT has not changed.

Since this interview was conducted, TMT announced Canada as a full partner in the project.

KITV 4 News: TMT Opponent Kaho‘okahi Kanuha files Formal War Crimes in Canada

Posted on May 17, 2015 by Hawaiian Kingdom

Click here to view the KITV News clip that aired on Wednesday May 13, 2015.

HONOLULU—And there are no signs of slowing down for TMT opponents. In Canada earlier today, they filed formal war crimes complaints with the Canadian Justice Department.

Activist Kaho‘okahi Kanuha says the charges are for desecration of property, unlawful confinement, and being denied the right to a fair trial. The last two relates to the arrests of 31 protestors who blocked construction of the thirty-meter telescope.

Kaho‘okahi Kanuha in Canada stated: “We’re working off of the fact that Hawai‘i was never legally annexed by the United States of America. This has gotten international attention, world-wide attention, and the ramifications of the actions taking place on the mountain, are very, very, they’re huge.”

Kanuha says that filing initiates a preliminary inquiry into their complaints. He says if the Canadian Justice Department finds “probable cause”—it will launch a criminal investigation.

Big Island Video News: Mauna Kea War Crimes Complaint Filed In Canada

Posted on May 16, 2015 by Hawaiian Kingdom

Hawaiian Kingdom Blog

Weblog of the acting government of the Hawaiian Kingdom presently operating within the occupied State of the Hawaiian Islands.

Author Archives: Hawaiian Kingdom

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Swiss Federal Criminal Court Recognizes Switzerland’s Treaty with the Hawaiian Kingdom was Never Cancelled and Implies Hawai‘i was Never Annexed

Big Island News Video: Kanuha Talks About Delivering War Crimes Complaint To Canada

KITV 4 News: TMT Opponent Kaho‘okahi Kanuha files Formal War Crimes in Canada

Big Island Video News: Mauna Kea War Crimes Complaint Filed In Canada

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