Author Archives: Hawaiian Kingdom

Larsen v. Hawaiian Kingdom: Two Jurisdictions of the Permanent Court of Arbitration

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There appears to be some confusion as to what took place at the Permanent Court of Arbitration (PCA). Some contend that the PCA “did not” recognize the continued existence of the Hawaiian Kingdom as a “State” under international law because the Arbitral Tribunal did not pronounce that the Hawaiian Kingdom continues to exist. This false contention assumes that the PCA and the Arbitral Tribunal are one and the same entity. The PCA and the Arbitral Tribunal it creates are two separate entities.

In international arbitration, there are two distinct jurisdictions—“jurisdiction of the institution” and “jurisdiction of the arbitral tribunal.” In 2003, the United Nations Conference on Trade and Development published a module for a course on “Dispute Settlement” that explains how the Permanent Court of Arbitration (PCA) operates, and the two types of jurisdictions is explained on p. 15-16. The PCA is the “institution,” which is separate and distinct from the “arbitral tribunal” it creates. All arbitral tribunals created by the PCA are ad hoc because it depends on the subject of the dispute and who can serve as qualified arbitrators on the tribunal.

Article 26 of the 1899 Hague Convention for the Pacific Settlement of International Disputes, which established the PCA, states “The jurisdiction of the Permanent Court may, within the conditions laid down in the Regulations, be extended to disputes between non-Signatory Powers, or between Signatory Powers and non-Signatory Powers, if the parties are agreed on recourse to this Tribunal.” This article was superseded by Article 47 of the 1907 Hague Convention for the Pacific Settlement of International Disputes, which provides, “The jurisdiction of the Permanent Court may, within the conditions laid down in the regulations, be extended to disputes between non-Contracting Powers or between Contracting Powers and non-Contracting Powers, if the parties are agreed on recourse to this Tribunal.” Contracting Powers and non-Contracting Powers are States.

Since 1930, the PCA expanded its jurisdiction to non-States involved with international disputes. According to the rules of the PCA, when an arbitration agreement is submitted to the PCA for dispute-resolution it must be: (1) between two or more States; (2) between a State and an international organization (e.g. United Nations); (3) between a State and a private party; or (4) between an international organization and a private party.

Here are examples of the four types of arbitration cases that have been convened by the Permanent Court of Arbitration.

When the arbitration agreement between Lance Larsen and the Hawaiian Kingdom was submitted to the PCA for dispute resolution, the PCA had to first determine if it had institutional jurisdiction before it could establish an ad hoc arbitral tribunal. In other words, the PCA had to determine whether or not the parties to the arbitration agreement were two States; a State and an international organization; a State and a private entity; or an international organization and a private entity. From November 8, 1999, when the arbitration agreement was submitted to the PCA, to April 2000 when the arbitral tribunal was established, the PCA was doing its due diligence in determining whether or not the Hawaiian Kingdom existed as a State under international law.

It was only after the PCA confirmed the Hawaiian Kingdom does exists as a “State” and Larsen is a “private entity,” it initiated the process to convene the arbitral tribunal. With Mr. Keoni Agard serving as the appointing authority, he worked directly with the PCA who provided him with a list of names and their expertise for consideration by Mr. Larsen and the Hawaiian government. Since the dispute centered on unlawful imposition of American laws within the Hawaiian Kingdom during occupation and that the United States declined the offer to join in the arbitration, the list of arbitral candidates and their expertise focused on these areas.

Christopher Greenwood PCAThe Hawaiian government selected Professor Christopher Greenwood, QC, whose expertise focused on the law of occupation. Greenwood was a Professor of International Law at the London School of Economics. His often cited work was “The Administration of Occupied Territory in International Law,” International Law and the Administration of Occupied Territories (Emma Playfair ed., 1992); “International Humanitarian Law (Laws of War)—Revised Report for the Centennial Commemoration of the First Hague Peace Conference 1899,” Centennial of the First International Peace Conference (Frits Kalshoven, 2000).

Gavan Griffith PCANinia Parks PCAMs. Ninia Parks, counsel for Lance Larsen, selected Gavan Griffith, QC, whose expertise focused on indispensable third parties. Griffith was the former Solicitor General of Australia and represented Australia before the International Court of Justice in the East Timor case (Portugal v. Australia) and Nauru case(Nauru v. Australia), where the issue before the ICJ was the principle of indispensable third parties in international proceedings.

James Crawford PCAOnce Mr. Agard was able to confirm the selections with the PCA, these two arbitrators would recommend a person to be the president of the tribunal. Both Greenwood and Griffith nominated ProfessorJames Crawford, SC. Crawford was a Professor of International Law at Lauterpacht Research Centre for International Law, University of Cambridge. He was a member of the United Nations International Law Commission (UNILC) and from 1998-2001 served as Special Rapporteur who was responsible for completing the Articles on Responsibility of States for Internationally Wrongful Acts.

Hawaiian Government PCA

The Hawaiian government was very impressed with the qualifications of Professor Crawford and notified Mr. Agard that it would accept Professor Greenwood and Dr. Griffith’s recommendation for the president. Ms. Ninia Parks, counsel for Larsen, also confirmed the nomination. This is when the arbitral proceedings began and oral hearings held at the PCA in The Hague in December 2000.

In the arbitral award, the Tribunal concluded that it did not have jurisdiction over the dispute on whether the Hawaiian government was negligent for allowing the unlawful imposition of American laws within the Hawaiian Kingdom, which led to the incarceration of Larsen, because the United States was an indispensable third party. In other words, the Hawaiian government prevailed because Mr. Larsen could not come after the Hawaiian government unless the United States was a party to the case. This case was not about whether or not the Hawaiian Kingdom exists as a State, it merely centered on the allegation of negligence on the part of the Hawaiian government.

During the proceedings, the Hawaiian government engaged in artful pleading where it was attempting to have the tribunal, within its rules, to pronounce the existence of the Hawaiian Kingdom in order to address Mr. Larsen’s allegation that it was allowing the unlawful imposition of American laws within Hawaiian territory. The Hawaiian government already knew that the Permanent Court of Arbitration, as an institution, explicitly recognized the Hawaiian Kingdom as a “State,” because if it didn’t, the PCA would not have never convened the Arbitral Tribunal.

https://vimeo.com/17007826

The issue being considered in this case by the “arbitral tribunal” centered on Larsen’s allegation of negligence on the part of the Hawaiian government.  It was not attempting to determine whether or not the Hawaiian Kingdom exists as a State.  The “institution” (PCA) had already made that determination, according to its rules, and determined that it had jurisdiction to proceed to form the arbitral tribunal whose job it was then to investigate the allegation of negligence.

Although, during the proceedings, the Hawaiian government did engage in artful pleading where it attempted to get the “arbitral tribunal” to pronounce, within its rules, the existence of the Hawaiian Kingdom in order to address Mr. Larsen’s allegation that it was allowing the unlawful imposition of American laws within Hawaiian territory.  This attempt was not necessary because the Hawaiian government already knew that the PCA concluded that as an institution it had jurisdiction because it confirmed that the Hawaiian Kingdom continues to exist as a “State” and that Lance Larsen was a “Private entity.”  The PCA “explicitly” states this in its case view of the Larsen case where it notes “Name(s) of claimant(s) Lance Paul Larsen (Private Entity) Name(s) of respondent(s) The Hawaiian Kingdom (State).”

The Arbitral Tribunal, however, being a separate entity from the PCA, concluded that it did not have jurisdiction over the dispute between the Hawaiian government and its national because the United States government was a necessary third party. If Hawai‘i was the so-called 50th State of the United States, the PCA would have never accepted the case at the onset.

Larsen vs. Hawaiian Kingdom – Bearing Witness to an Historical Event

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The following article was written by Allen Kale‘iolani Hoe, attorney-at-law, and was first published in the Polynesian newspaper in December 2000. Hoe was an invited “observer” to oral hearings in Larsen vs. Hawaiian Kingdom at the Permanent Court of Arbitration, The Hague, on December 7, 8 and 11, 2000.

Hoe (Flag)

The words, “In the Permanent Court of Arbitration, Case No. 99001,” spoken by the Clerk of the Court in the opening moments of the case, Lance Paul Larsen vs. The Hawaiian Kingdom, literally took my breath away. It was a moment to be cherished and remembered by every Hawaiian, whether kanaka maoli or a descendant of Hawaiian subjects.

Personally, this moment had evolved quickly after receiving the joint invitation by the Parties to attend the proceedings as an Observer. Within a couple of weeks of receiving the invitation I found myself half way around the world entering what has been appropriately described as “the grand edifice of Civilization.”

In 20 plus years as a united states educated attorney, including service as a district court judge, I have participated in numerous legal proceedings. However, being at the Peace Palace that day reawakened my belief that there is a path which Hawaiians may follow. This path is not encumbered by a century of lies and apologetic rhetoric by united states politicians who have denied us our rights to sit as equals within the international community of Nation States.

Crossing 10 time zones on a 15 hour flight provided me with an opportunity to review the voluminous legal briefs which the parties had submitted to the Court. Like most observers I had taken an interest in the development of this case from the bits and pieces of information provided through my following of Lance Larsen’s case within the Hawaii courts as well as KCCN 1420 a.m.’s informative program “Perspective.”

The depth of the historical and legal principles applicable in international law was never fully appreciated by me until I had this opportunity to carefully review and consider the issues framed by this case. I was awe struck by the manner in which the Parties had crafted this case for presentation to the Court. The memorials filed by the Hawaiian Kingdom demonstrate clearly its entitlement to participate in this process under international law.

Perhaps for too long now we have just accepted the propaganda that our american destiny is fait complie. We have been smothered by the dreams and desires of non Hawaiians to become americans that we have allowed ourselves to accept the united states government’s official policy to deny that the Hawaiian Kingdom government existed or continues to this date under the well established principles of International Law.

The fact that the Hawaiian Kingdom was transformed from an “autocracy” to a constitutional monarchical form of government by Kamehameha III, which was acknowledged by Britain and France in the Anglo-Franco Proclamation of 1843 is another of the binding historical and legal principles which has been pushed on the side in favor of the american dream; to the great disadvantage of all Hawaiians.

This case represents the first clear opportunity to expose to the International Community this dirty little secret which the united states has tried to keep hidden within in its dark closet of “judge me by my words not my deeds.” For more than a century we have been forced to acknowledge the criminal acts of Dole, Thurston and Stevens along with the unlawful conduct of american presidents and politicians against Hawaiians as american heroics.

The enormity of this case really struck me towards the end of the first day of the proceedings. All those privileged to attend clearly recognized that fact. For me, this moment should not be allowed to pass without some recognition in honor of our kupuna who as members of the Men and Women’s Hawaiian Patriotic League began this struggle a century ago in their written declarations objecting to the illegal acts of the united states of america.

Hae Hawai‘i (the national flag) is for me, and perhaps for many others the most important symbol of who we are as a Nation. Although the united states and the state of hawaii has attempted to subvert its position, it is our flag that once proudly flew over Hawaiian Kingdom Consulates through out the world. We could not leave Den Haag (“The Hague” in Dutch) without sharing this moment with our kupuna through the raising of Hae Hawai‘i over this city which represents the hopes and dreams of all true Hawaiians.

What to do, perhaps the silver lining in the cloud of being a day away from Hawai‘i was that as the day was ending at the Peace Palace it was just beginning in Honolulu. Thus, I immediately placed a call to my secretary with the task of acquiring a large Hawaiian flag and finding the fastest and safest way to get it to Den Haag. The precious package left Honolulu via Fedex on the afternoon of December 7, and after stops in Oakland, California and clearing US Customs in Memphis, Tennessee it arrived in Paris, France at Midnight, December 10th and was delivered to me on the morning of the 11th, which ironically was to be the last day of the proceedings which had originally scheduled to conclude on December 12.

The role of the Hawaiian Patriotic League in pursuit of justice over all these years I felt needed to be recognized and honored. The Hui Kalai‘aina (a Hawaiian Political Party) is another Hawaiian Organization which played an important role in the Hawaiian Kingdom Government. In 1996 numerous other Hawaiians along with myself revived and reconstituted the Hui Kalai‘aina as a Hawaiian political party to promote greater awareness and education on historic and contemporary Hawaiian political issues. As a Director of Hui Kalai‘aina this ho‘okupu of Hae Hawai‘i to the Hawaiian Patriotic League in honor of the Hawaiian Kingdom was a small gesture of all our aloha for their dedication and sacrifice in our behalf for Justice for all Hawaiians.

With that purpose in mind I asked all those in attendance from Hawaii to please sign their names along the border of Hae Hawai‘i. With signatures secured I presented it to the Acting Council of Regency, His Excellency, Agent David Keanu Sai, Acting Minister of Interior along with the best wishes of all those privileged to attend and to sign. One request was made that the Council secure the appropriate place to raise it over the host city of Den Haag as a symbol of its right to reclaim its place within the international community of Nation States.

PCA Flag

Thus, with great pride I was a witness to the lowering of the united states flag and the raising of Hae Hawai‘i to its rightful place next to the flags of Britain, France and the Netherlands. This took place across from the Peace Palace along the Scheveningseweg in Den Haag. My dream now is to witness this again in my country in my lifetime. Pau.

Kanaka Express – Interview with Professor Schweizer

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Kale Gumapac, host of Kanaka Express, interviews Dr. Niklaus Schweizer on history of the Hawaiian Kingdom and its impact today. Dr. Schweizer is a professor at the University of Hawai‘i at Manoa and has published books and articles on the history of the Hawaiian Kingdom. Dr. Schweizer also served as the Honorary Consul for the Swiss Confederation and is currently consul emeritus of the Consular Corps of Hawai‘i.

https://vimeo.com/150326365

https://vimeo.com/150326366

National Holiday – Independence Day

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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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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 George Simpsonon 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 aHaalilio 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 RichardsMr. 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.

Recognition by the United States—Messres. Richards and Haalilio arrived in Washington early in December, and had several interviews with Daniel Webster, theDaniel Webster 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.

Success of the Embassy in Europe—The king’s envoys proceeded to London, whereAberdeen 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 CalhounThis 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.”

The Meaning of Hawaiian Independence in International Law

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As the Hawaiian Kingdom approaches the celebration of its most important national holiday Lā Ku‘oko‘a (Independence Day) on November 28—Saturday, it is important to understand just what the term “independence” really means. Common misunderstandings are statements such as “independence advocates” or “people who want Hawaiian independence.” These statements assume Hawai‘i is not independent, where independence is a political aspiration and not a legal reality. It is also evidence of denationalization through Americanization that has nearly obliterated the national consciousness of the Hawaiian Kingdom in the minds of the people.

Patriotic Exercises_TH

In international relations and law, independence reflects the status of a State whereby the international community recognizes that only the laws of that particular State apply over its territory “independent” of other laws over other States and their territories. Only independent States are subjects of international law or members or the Family of Nations. In other words you can be a State, but not be independent, such as the State of New York, which once was an independent State but is no longer today.

After the American Revolution, the State of New York became an independent State along with the other former twelve British colonies, who were all member States of a political union called the United Stated States of America, which was a confederation since 1777. A confederation is a political union of independent States, such as today’s European Union, which is a commercial union of independent States.

Article 1 of the 1783 Treaty of Paris that ended the American Revolution, specifically states, “His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and Independent States.” For the next six years, the international community recognized that only New York law applied over the territory of New York to the exclusion of any foreign States’ laws, such as the laws of Great Britain and France.

In 1789, New York would lose its independence of its laws when it chose to join an American Federation whereby all thirteen American independent States would relinquish their independence to a Federal government thereby creating the United States of America as the world knows it today. This is when the United States of America replaced the former thirteen independent States as the single independent State under international law. No longer being an independent State, New York has two separate laws that apply with equal force within its territory—United States Federal law and State of New York law.

When Great Britain and France jointly proclaimed on November 28, 1843 that both States recognized the Hawaiian Kingdom as an Independent State, it meant that only Hawaiian law would apply over Hawaiian territory, which signified Hawaiian independence. Even more surprising was that the Hawaiian Kingdom was the only non-European Power admitted into the Family of Nations with full recognition of its independence of Hawaiian law over Hawaiian territory.

1843 Declaration_p_1(color)

1843 Declaration_p_2(color)

Other non-European Powers such as Japan were not admitted as independent States into the Family of Nations until 1899, and since 1858, Japan had unequal treaties whereby independent States, such as the United States of America, applied their own laws within Japanese territory over their citizenry. Under the 1858 American-Japanese unequal treaty, American citizens could only be prosecuted in Japan under American law and tried by the American Consulate serving as the Court. The Hawaiian Kingdom also had an unequal treaty with Japan. Under the 1871 Hawaiian-Japanese Treaty, Hawaiian subjects in Japan could only be prosecuted under Hawaiian law by the Hawaiian Consulate in Tokyo.

Since the American occupation began, Hawaiian independence is at the core of the law of occupation. This means only Hawaiian law must be temporarily administered by the occupying State. No other law can be administered in an occupied State because it is independent. The laws of occupation would not apply if Hawai‘i was not an independent State.

In international arbitration between the Netherlands and the United States at the Permanent Court of Arbitration (Island of Palmas case) from 1925-1928, the arbitrator explained independence. Judge Huber stated, “Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.”

Independence refers to “political” independence and not “physical” independence from another State. Oppenheim, International Law, Vol. 1, 177-8 (2nd ed. 1912), explains: “Sovereignty as supreme authority, which is independent of any other earthly authority, may be said to have different aspects. As excluding dependence from any other authority, and in especial from the authority of the another State, sovereignty is independence. It is external independence with regard to the liberty of action outside its borders in the intercourse with other States which a State enjoys. It is internal independence with regard to the liberty of action of a State inside its borders. As comprising the power of a State to exercise supreme authority over all persons and things within its territory, sovereignty is territorial supremacy. As comprising the power of a State to exercise supreme authority over its citizens at home and abroad, sovereignty is personal supremacy. For these reasons a State as an International Person possesses independence and territorial and personal supremacy.”

Occupation does not extinguish independence/sovereignty, but rather it is protected and maintained under international law. U.S. Army FM-27-10, The Law of Land Warfare, acknowledges this. Chapter 6 covers occupation. Section 358 states, “Being an incident of war, military occupation confers upon the invading force the means of exercising control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty. The exercise of these rights results from the established power of the occupant and from the necessity of maintaining law and order, indispensable both to the inhabitants and to the occupying force. It is therefore unlawful for a belligerent occupant to annex occupied territory or to create a new State therein while hostilities are still in progress.”

International Arbitration: Larsen vs. Hawaiian Kingdom (1999-2001)

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Many people are not familiar with dispute resolution under international law and the role the Permanent Court of Arbitration (PCA) plays in international relations.

Peace Palace

When the first International Peace Conference was convened in July 1899 in The Hague, Netherlands, the major States of the world were in attendance. Its first treaty—Convention for the Pacific Settlement of International Disputes, established a global institution for international dispute settlement called the Permanent Court of Arbitration. This international court predates the Permanent Court of International Justice established by the League of Nations from 1922-1946 and its successor the International Court of Justice (ICJ) established by the United Nations from 1946-present.

The PCA is not your conventional court that has permanent sitting judges, but rather it has a permanent secretariat called the International Bureau, which is headed by a Secretary General. After the PCA accepts disputes from parties, the Bureau facilitates the establishment of ad hoc Tribunals in order to resolve the disputes depending on the arbitration agreement between the parties and the applicable rules. The fundamental difference between a court with judges and a tribunal with arbitrators is that the arbitrators are selected by the parties based on their expertise in the area of the dispute. Judges may not be experts in areas of the dispute and therefore there is a need to rely on expert witnesses. Arbitration alleviates that requirement because the arbitrators themselves are the experts.

The PCA was initially limited to disputes between States that involved matters of public international law as well as arbitrating disputes over territorial sovereignty. By the 1930s, the PCA expanded its jurisdiction to include private parties that had a dispute with a State. One of these first cases involved a dispute between Radio Corporation of America, a private party, and China, being the State (RCA vs. China). Today, the jurisdiction of the PCA include disputes: (1) between two or more States; (2) a State and an international organization; (3) two or more international organizations; (4) a State and a private party; and (5) an international organization and a private party.

In 1999, a dispute arose between the Government of the Hawaiian Kingdom and a Hawaiian subject over the unlawful imposition of American laws in Hawaiian territory. The Hawaiian subject, Lance Larsen, was convicted under American laws and was incarcerated for 30 days, 7 of which were in solitary confinement. Mr. Larsen’s attorney, Ms. Ninia Parks, alleged that the Hawaiian Government was “negligent” by not taking affirmative steps to prevent the imposition of American laws in the Hawaiian Kingdom. She also alleged that the Hawaiian Government was a violation of its 1849 Treaty with the United States. Article 8 of the treaty states, “and each of the two contracting parties engage that the citizens or subjects of the other residing in their respective States shall enjoy their property and personal security, in as full and ample manner of their own citizens or subjects, of the subjects or citizens of the most favored nation, but subject always to the laws and statutes of the two countries respectively.”

After negotiations in Honolulu, an arbitration agreement was reached and on November 8, 1999, it was submitted to the PCA for acceptance. The arbitration agreement provided the allegations:

“(a) Lance Paul Larsen, a Hawaiian subject, alleges that the Government of the Hawaiian Kingdom is in continual violation of its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America, and in violation of the principles of international law laid [down] in the Vienna Convention on the Law of Treaties, 1969, by allowing the unlawful imposition of American municipal laws over claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom; and

(b) Lance Paul Larsen, a Hawaiian subject, alleges that the Government of the Hawaiian Kingdom is also in continual violation of the principles of international comity by allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.”

Tjaco_van_den_HoutAs part of the International Bureau’s due diligence into the status of the Hawaiian Kingdom as an independent State under international law, the PCA’s Secretary General Van Den Hout made a formal recommendation to David Keanu Sai, Agent for the Hawaiian Government, to provide a formal invitation to the United States to join in the arbitration proceedings. This would have one of three outcomes—first, the United States would dispute the existence of the Hawaiian Kingdom as a State and the PCA would terminate the proceedings, second, it could join the arbitration in order to answer Larsen’s allegations of violating his rights that led to his incarceration, or, third, it could refuse to join in the arbitration, but allow it to go forward.

John_CrookIn a conference call held in Washington, D.C., on March 3, 2000, Ninia Parksbetween Mr. John Crook, United States Assistant Legal Adviser for United Nations Affairs, Ms. Parks and Mr. Sai, the United States was formally invited to join in the arbitration. It wasn’t until a couple of weeks later that the United States Embassy in The Hague notified the PCA that the United States will not join in the arbitration, but asked permission of the Hawaiian Government and Mr. Larsen’s attorney to have access to all pleadings, transcripts and records. The United States took the third option and did not deny the existence of the Hawaiian Kingdom as a State.

After the PCA verified and recognized that the Hawaiian Kingdom did exist as a State under international law with a legitimate government and that Larsen is a Hawaiian subject, steps were then taken to form the Tribunal. Mr. Keoni Agard, Esquire, was appointed by Ms. Parks, on behalf of Mr. Larsen, and the Hawaiian Government to serve as the Appointing Authority to work with the PCA in order to secure the appointment of three arbitrators. As the Appointing Authority, Mr. Agard was given a list of arbitrators provided by the PCA for each of the parties to select. The Hawaiian Government selected Professor Christopher Greenwood, QC, and Ms. Parks selected Dr. Gavan Griffith, QC. These two arbitrators then recommended the appointment of a Presiding Arbitrator, Professor James Crawford, SC, which both parties agreed to.

Larsen Tribunal

The Hawaiian arbitration fell under the PCA’s jurisdiction as a dispute between a “State and a private party.” The dispute was not about the existence of the Hawaiian Kingdom as a State under international law, but rather centered solely on whether Larsen could sue the Hawaiian Government for negligence by allowing American laws to be imposed in the Hawaiian Kingdom that caused his incarceration. The Tribunal stated to the parties that in this dispute the United States is a necessary party in order for Mr. Larsen to maintain his suit against the Hawaiian Government. The procedural questions that were given to the parties to answer in its written pleadings is whether or not these proceedings can continue without the participation of the United States. The Tribunal cited three international court cases that came before the ICJ and focused on necessary third parties as the precedence—Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom and the United States), East Timor (Portugal v. Australia), and Certain Phosphate Lands in Nauru (Nauru v. Australia).

PCA_SaiAfter written pleadings were submitted, oral hearings were held at The Hague on December 7, 8, and 11, 2000, and the Arbitration Award was filed with the PCA on February 5, 2001. The court concluded that the United States was a necessary third party and without their participation in the arbitration proceedings, Mr. Larsen’s allegations of negligence against the Hawaiian Government could not move forward.

A common misunderstanding was that the dispute between Mr. Larsen and the Hawaiian Government centered on whether the Hawaiian Kingdom continues to exist as a State. It was not. The PCA recognized the continued existence of the Hawaiian Kingdom as a State because the United States, who claimed to have sovereignty over the Hawaiian Islands, did not refute the continued existence of the Hawaiian Kingdom when it had an opportunity to do so. The only claim that the United States had over the Hawaiian Islands was through American legislation and not a treaty. The PCA is very much aware that international law only allows annexation by treaty and not through a State’s municipal legislation.

Of significance in these international arbitration proceedings is that the Tribunal in its Arbitration Award 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,” and the PCA recognized the continued existence of the Hawaiian Kingdom as a State in the twenty-first century.

To see the PCA’s explicit recognition of the Hawaiian Kingdom as a State go to the PCA Case Repository of Lance Larsen vs. The Hawaiian Kingdom, and scroll down to name of respondent, “The Hawaiian Kingdom (State),” who is represented by “Mr. David Keanu Sai, Agent, Mr. Peter Umialiloa Sai, First deputy agent, Mr. Gary Victor Dubin, Second deputy agent and counsel.”

International Court Recognizes The Hawaiian Kingdom as a State

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PCA CrawfordThe Permanent Court of Arbitration (PCA) has recently uploaded a Case Repository of current cases and past cases that came before the international court. Listed as one of the past cases that came before the PCA was Lance Larsen v. The Hawaiian Kingdom. The international arbitration began on November 8, 1999 and ended February 5, 2001.

The PCA explicitly recognized the Hawaiian Kingdom as a State and the acting Government as its representative in arbitration proceedings instituted by a Hawaiian subject, Lance Larsen. If the Hawaiian Kingdom did not exist today as a State under international law, and there was no lawful government representing the Hawaiian Kingdom, the case would have never been accepted by the PCA. This is also recognition that the Hawaiian Kingdom was never annexed by the United States, but rather occupied since the Spanish-American War in 1898.

The international court’s explicit recognition of the continued existence of the Hawaiian Kingdom as a State under international law and the acting Government is definitive and removes all doubt of Hawai‘i legal status under international law.

Larsen v. Kingdom

The tribunal concluded in its arbitral award that in order for Lance Larsen to maintain his suit against the acting Government, which he alleged was “in continual violation of its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America, and in violation of the principles of international laid down in the Vienna Convention on the Law of Treaties, 1969, by allowing the unlawful imposition of American municipal laws over claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom,” he needed the participation of the United States as an indispensable third party because it was the United States that allegedly violated his rights and not the Hawaiian Kingdom. His claim was that the Hawaiian Kingdom was negligent for allowing the imposition of American laws in the Kingdom in violation of the treaties.

https://vimeo.com/17007826

The arbitration tribunal was comprised of three highly respected experts in international law, and two the arbitrators, James Crawford and Christopher Greenwood were selected by the United Nations as judges on the ICJ. The United Nations selection is also recognition of the caliber of the arbitrators who served on the Tribunal in the Hawaiian arbitration.

Other international arbitration cases held at the PCA that was similar to the Hawaiian arbitration, being a dispute between a private entity and a State, include, Hulley Enterprises Limited vs. The Russian Federation (2005), Romak S.A. vs. The Republic of Uzbekistan (2006), and TCW, Inc. and Dominican Energy Holdings, L.P. vs. The Dominican Republic (2008).

The PCA was initially limited to arbitration between States, but has since evolved to include private parties against States. A dispute between private parties alone cannot access the PCA without the participation of a State. “Today the PCA provides services for the resolution of disputes involving various combinations of states, state entities, intergovernmental organizations, and private parties.” The United States was not only one of the signatory States to the 1899 Hague Convention, I, that established the international court, but it was also a party to arbitration cases at the PCA, The United States of America v. The United States of Mexico (1902), The United States of America vs. Venezuela (1909), Great Britain vs. The United States of America (1910), and The United States of America vs. The Netherlands (1925). The most recent arbitration at the PCA was The Republic of Ecuador vs. The United States of America (2011).

ICJ_Peace_Palace

The PCA is only open to disputes involving international law, which is the reason why a dispute between private parties cannot access the international court. The United Nations Charter created the International Court of Justice (ICJ) in 1945 and it is housed in the Peace Palace together with the PCA. Unlike the PCA, the ICJ limits its access to disputes between States and not disputes between a private entity and the State.

The PCA was established in 1899 when States from around the world met in The Hague, Netherlands, in order to codify the laws and customs of war, which was already accepted as customary international law. It’s first treaty—Hague Convention, I, established a permanent court of arbitration to be housed at The Hague. “With the object of facilitating an immediate recourse to arbitration for international differences, which it has not been possible to settle by diplomacy, the Signatory Powers undertake to organize a permanent Court of Arbitration (Article 20).”

The Knowledge Economy Blog Links to Hawaiian Kingdom

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Professor Adil Najam, Dean of The Pardee School for Global Studies at Boston University, has a blog The Knowledge Economy. In its October 30, 2015 edition, the Hawaiian Kingdom Blog is listed under “World” affairs. Dr. Sai will also be lecturing at The Pardee School of Global Studies on November 10, 2015. His lecture is titled Hawai‘i: An American State or a State under American Occupation.

Knowledge Economy Blog

Dr. Sai to Lecture at Boston University’s Pardee School of Global Studies

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Lecture Series “Beyond the Headlines” Boston University Pardee School of Global Studies presents: “Hawai’i: An American State or a State Under American Occupation?”

Dr. KEANU SAI_Pardee

Big Island Video News: Keanu Sai on Na‘i Aupuni, OHA and Cambridge

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Big Island Video News: Dr. Keanu Sai is a political scientist at the forefront of an emerging understanding of Hawaii as an existing Kingdom under U.S. occupation. In this lengthy interview, Sai talks about his recent trip to the University of Cambridge in the United Kingdom where he was invited to present a paper on Hawaii as a non-European power. He also sets the record straight on his involvement with the Office of Hawaiian Affairs and the letter that was sent to U.S. Secretary of State John Kerry, and the controversial Na’i Aupuni election of delegates to an upcoming Hawaiian nation-building ‘aha.

The paper that Dr. Sai presented at Cambridge was Hawaiian Neutrality: From the Crimean Conflict through the Spanish-American War.

Na‘i Aupuni (Native Hawaiian Convention): What it Is and What it’s Not

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An interview of Dr. Keanu Sai by Kale Gumapac, host of the show The Kanaka Express. The interview focuses on Na‘i Aupuni or the Native Hawaiian Convention from a political science, historical and academic standpoint.

https://vimeo.com/143056757

 

Academics Dispelling the Myths of the Hawaiian Kingdom through Research

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An interview of Professor Niklaus Schweizer and Ph.D. candidate Lorenz Gonschor from the University of Hawai‘i at Manoa by Kale Gumapac, host of the show The Kanaka Express. The interview is focuses on dispelling the untruths of the Hawaiian Kingdom that is a part of the research and classroom instruction at the University of Hawai‘i at Manoa.

https://vimeo.com/143006284

The Hawaiian Kingdom as a Non-European Power

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An interview of Dr. Keanu Sai and Ph.D. candidate Lorenz Gonschor by Dr. Lynette Cruz on Issues that Matter. The subject of the interview focused on the Hawaiian Kingdom as a non-European Power in the nineteenth century and its relationship with Japan.

https://vimeo.com/142326302

Fifteen Academic Scholars from around the World meet at Cambridge, UK

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cambridge-logoFrom September 10-12, 2015, fifteen academic scholars from around the world who were political scientists and historians came together to present papers on non-European powers at a conference/workshop held at the University of Cambridge, United Kingdom. Attendees of the conference were by invitation only and the papers presented at the conference are planned to be published in a volume with Oxford University Press.

The theme of the conference was Non-European Powers in the Age of Empire. These non-European countries included Hawai‘i, Iran, Turkey, China, Ethiopia, Japan, Korea, Thailand, and Madagascar. Dr. Keanu Sai was one of the invited academic scholars and his paper is titled “Hawaiian Neutrality: From the Crimean Conflict through the Spanish-American War.”

Cambridge Conference Attendees 2

Many of these scholars were unaware of the history of the Hawaiian Kingdom and its “full” membership in the family of nations as a sovereign and independent state. What stood out for them was the continued existence of the Hawaiian Kingdom because it was only the government that was illegally overthrown by the United States and not the Hawaiian state, which is the international term for country. The belief that Hawai‘i lost its independence was dispelled and that its current status is a state under a prolonged American occupation since the Spanish-American War.

What was a surprise was that the Hawaiian Kingdom was the only non-European Power to have been a co-equal sovereign to European Powers throughout the 19th century. All other non-European Powers were not recognized as full sovereign states until the latter part of the 19th century and the turn of the 20th century. During this time European Powers imposed their laws within the territory of these countries under what has been termed “unequal treaties.”

Since 1858, Japan had been forced to recognize the extraterritoriality of American, British, French, Dutch and Russian law operating within Japanese territory. According to these treaties, citizens of these countries while in Japan could only be prosecuted under their country’s laws and by their country’s Consulates in Japan called “Consular Courts.” Under Article VI of the 1858 American-Japanese Treaty, it provided that “Americans committing offenses against Japanese shall be tried in American consular courts, and when guilty shall be punished according to American law.” The Hawaiian Kingdom’s 1871 treaty with Japan also had this provision, where it states under Article II that Hawaiian subjects in Japan shall enjoy “at all times the same privileges as may have been, or may hereafter be granted to the citizens or subjects of any other nation.” This was a sore point for Japanese authorities who felt Japan’s sovereignty should be fully recognized by these states.

Emperor MeijiWhile King Kalakaua was visiting Japan in 1881, Emperor Meiji “asked for Hawai‘i to grant full recognition to Japan and thereby create a precedent for the Western powers to follow.” Kalakaua was unable to grant the Emperor’s request, but it was done by his successor Queen Lili‘uokalani. Hawaiian recognition of Japan’s full sovereignty and repeal of the Hawaiian Kingdom’s consular jurisdiction in Japan provided in the Hawaiian-Japanese Treaty of 1871, would take place in 1893 by executive agreement through exchange of notes.

Lili‘uokalani_3By direction of Her Majesty Queen Lili‘uokalani, R.W. Irwin, Hawaiian Minister to the Court of Japan in Tokyo sent a diplomatic note to Mutsu Munemitsu, Japanese Minister of Foreign Affairs on January 18, 1893 announcing the Hawaiian Kingdom’s abandonment of consular jurisdiction. Irwin stated:

“Her Hawaiian Majesty’s Government reposing entire confidence in the laws of Japan and the administration of justice in the Empire, and desiring to testify anew their sentiments of cordial goodwill and friendship towards the Government of His Majesty the Emperor of Japan, have resolved to abandon the jurisdiction hitherto exercised by them in Japan.

It therefore becomes my agreeable duty to announce to your Excellency, in pursuance of instructions from Her Majesty’s Government, and I now have the honour formally to announce, that the Hawaiian Government do fully, completely, and finally abandon and relinquish the jurisdiction acquired by them in respect of Hawaiian subjects and property in Japan, under the Treaty of the 19th August, 1871.

There are at present from fifteen to twenty Hawaiian subjects residing in this Empire, and in addition about twenty-five subjects of Her Majesty visit Japan annually. Any information in my possession regarding these persons, or any of them, is at all times at your Excellency’s disposal.

While this action is taken spontaneously and without condition, as a measure demanded by the situation, I permit myself to express the confident hope entertained by Her Majesty’s Government that this step will remove the chief if not the only obstacle standing in the way of the free circulation of Her Majesty’s subjects throughout the Empire, for the purposes of business and pleasure in the same manner as is permitted to foreigners in other countries where Consular jurisdiction does not prevail. But in the accomplishment of this logical result of the extinction of Consular jurisdiction, whether by the conclusion of a new Treaty or otherwise, Her Majesty’s Government are most happy to consult the convenience and pleasure of His Imperial Majesty’s Government.”

On April 10, 1894, Foreign Minister Munemitsu, responded, “The sentiments of goodwill and friendship which inspired the act of abandonment are highly appreciated by the Imperial Government, but circumstances which it is now unnecessary to recapitulate have prevented an earlier acknowledgment of you Excellency’s note.”

This dispels the commonly held belief among historians that Great Britain was the first state to abandon its extraterritorial jurisdiction in Japan under the Anglo-Japanese Treaty of Commerce and Navigation, which was signed on July 16, 1894. The action taken by the Hawaiian Kingdom did serve as “precedent for the Western powers to follow.”

Dr. Sai encourages everyone to read his paper “Hawaiian Neutrality: From the Crimean Conflict through the Spanish-American War” that was presented at Cambridge, which covers Hawai‘i’s political history from the celebrated King Kamehameha I to the current state of affairs today, and the remedy to ultimately bring the prolonged occupation to an end.

Were There Two American Occupations of Hawai‘i or Just One?

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Camp McKinley 1898

There is a fundamental question regarding the American occupation of the Hawaiian Kingdom that rests on two positions. The first proposition is that the American occupation began on January 17, 1893 at the time of the illegal overthrow of the Hawaiian “government” and ended when American troops were ordered to vacate Hawaiian territory on April 1, 1893 by Presidential investigator James Blount. And that a second American occupation began on August 12, 1898 during the Spanish American War which has lasted to date. The second proposition is that the American occupation began on January 17, 1893 and has remained a belligerent occupation ever since.

What is fundamental and crucial in precisely determining this question of occupation is that occupation triggers the law of occupation, which follows an invasion. When occupation comes to an end so do the laws occupation. This is separate and distinct from the laws and customs of war triggered by an invasion, and the law of occupation that mandates the occupier to provisionally administer the laws of the occupied State under Section III (Articles 42-56) of the 1899 Hague Convention, II, which was later superseded by Section III (Articles 42-56) of the 1907 Hague Convention, IV, and the 1949 Geneva Convention, IV.

At the center of occupation is “effectiveness.” In other words, territory is only occupied when it comes under the effective control of a foreign state’s military. For without effectiveness, the occupier would not be able to carry out the duties and obligations of an occupier under international law in the administration of the laws of the occupied State.

Although an invasion of territory would trigger the laws and customs of war on land, it does not simultaneously trigger the laws of occupation, because the invasion may be transient and ongoing. But when the invader becomes fixed and establishes its authority it triggers the laws of occupation. Article 42 of the 1899 Hague Convention, II, which was considered customary international law at the time, states that, “Territory is considered occupied when it is actually place under the authority of the hostile army. The occupation applies only to the territory where such authority is established, and in a position to assert itself.” Article 42 of the 1907 Hague Convention, IV, is relatively the same except for minor changes in wording.

At first glance, Article 42 refers to the presence of a “hostile army.” So if we were to look at the U.S. troops that were present in Honolulu on January 17, 1893, we need to determine at what point were they in a position of established authority. In his message of December 18, 1893, President Cleveland apprised the Congress that when U.S. troops landed in Honolulu on Monday January 16 it was an invasion. Cleveland stated, “The men, upwards of 160 in all, were supplied with double cartridge belts filled with ammunition and with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies. This military demonstration upon the soil of Honolulu was of itself an act of war.” Cleveland further states that, “the military occupation of Honolulu by the United States on the day mentioned was wholly without justification, either as an occupation by consent or as an occupation necessitated by dangers threatening American life and property.”

The question, however, from a strictly legal standpoint, did the U.S. troops establish its authority under the law of occupation, and, if so, to what extent did this authority extend regarding territorial control. The troops were occupying a very small defensive position between two buildings—Music Hall and Arian Hall, on Mililani Street. Cleveland explained to the Congress,

Cleveland“The United States forces being now on the scene and favorably stationed, the committee proceeded to carry out their original scheme. They met the next morning, Tuesday, the 17th, perfected the plan of temporary government, and fixed upon its principal officers, ten of whom were drawn from the thirteen members of the Committee of Safety. Between one and two o’clock, by squads and by different routes to avoid notice, and having first taken the precaution of ascertaining whether there was any one there to oppose them, they proceeded to the Government building almost entirely without auditors. It is said that before the reading was finished quite a concourse of persons, variously estimated at from 50 to 100, some armed and some unarmed, gathered about the committee to give them aid and confidence. This statement is not important, since the one controlling factor in the whole affair was unquestionably the United States marines, who, drawn up under arms and with artillery in readiness only seventy-six yards distant, dominated the situation.”

US troops 1893

Cleveland was not explaining an occupation that would invoke the law of occupation, but rather an invasion and regime change. But on February 1, 1893, the United States diplomat, John Stevens, declared the Hawaiian Islands to be an American protectorate. So from a position of international law it would be February 1 that would trigger the duty and obligations of the law of occupation because it would appear that this date is where the United States gained effective control of foreign territory and established its authority over it.

However, if you add to the mix the so-called Provisional Government it presents a very different picture. First, the President told Congress that the provisional government was neither a de jure government, which is the lawful government, nor a de facto government, which by definition under international law is a successful revolution. A de facto government has to be in effective control of all the governmental machinery of the government it is revolting against, before it can be considered de facto, because when it is not it is still in a state of revolt and the treason statute would apply. This is why the United States of America was not considered a de facto government until after King George III signed the Treaty of Paris on September 3, 1783, that ended the seven year revolt. When the British colonies declared their independence on July 4, 1776 they became insurgents who committed treason to the British government.

Cleveland addressed this requirement of international law when he stated to the Congress, “That it was not in such possession of the Government property and agencies as entitled it to recognition is conclusively proved by a note found in the files of the Legation at Honolulu, addressed by the declared head of the provisional government to Minister Stevens, dated January 17, 1893, in which he acknowledges with expressions of appreciation the Minister’s recognition of the provisional government, and states that it is not yet in the possession of the station house (the place where a large number of the Queen’s troops were quartered), though the same had been demanded of the Queen’s officers in charge. Nevertheless, this wrongful recognition by our Minister placed the Government of the Queen in a position of most perilous perplexity. On the one hand she had possession of the palace, of the barracks, and of the police station, and had at her command at least five hundred fully armed men and several pieces of artillery. Indeed, the whole military force of her kingdom was on her side and at her disposal, while the Committee of Safety, by actual search, had discovered that there were but very few arms in Honolulu that were not in the service of the Government. In this state of things if the Queen could have dealt with the insurgents alone her course would have been plain and the result unmistakable. But the United States had allied itself with her enemies, had recognized them as the true Government of Hawaii, and had put her and her adherents in the position of opposition against lawful authority.”

The insurgents seized control of the de jure Government of the Queen under the protection of U.S. troops, and thereafter compelled everyone in Government to sign oaths of allegiance. By unlawfully seizing the reigns of government in violation of international law, it does not transform itself into a de jure government. It is a state of emergency born out of a violation of international law. Therefore, if the so-called Provisional Government was not a government at all, but rather enemies of the State who committed high treason under Hawaiian law, then what would it be classified as for the purposes of international law since the United States was its creator. Yes it could be called a puppet of the United States, but this does not mean anything under international law and the law of occupation.

Under international law, the Provisional Government would be classified as an American “militia” illegally established on Hawaiian territory by the United States. Article 1 of the 1899 Hague Convention, II, states, “The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions: 1. To be commanded by a person responsible for his subordinates; 2. To have a fixed distinctive emblem recognizable at a distance; 3. To carry arms openly; and 4. To conduct their operations in accordance with the laws and customs of war.” This Article remained unchanged in the 1907 Hague Convention, IV.

There can be no doubt that the American militia called the Provisional Government began to be in effective control as a result of U.S. intervention, but this effectiveness did not reach its peak on January 17. It was a gradual escalation of effectiveness that began to grow from the city of Honolulu to the outlying government offices on the outer islands. But when the U.S. diplomat established protectorate status on February 1, this could be definitive as to when the law of occupation was triggered. Up to this point it was an invasion and not an occupation for the purposes of international law. Although U.S. troops departed Hawaiian territory on April 1, 1893, the American militia maintained itself through the hiring of mercenaries from the United States.

On July 4, 1894, the American militia changed its name to the Republic of Hawai‘i and continued to have government officers and employees sign oaths of allegiance under threat of American mercenaries who continued to be 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.”

On April 30, 1900, the U.S. Congress by statute changed the name of the American militia called the Republic of Hawai‘i to the Territory of Hawai‘i. The Territorial Act provided, that “the laws of [the Republic of Hawai‘i] not inconsistent with the Constitution or laws of the United States or the provisions of this Act shall continue in force,” and that “all persons who were citizens of the Republic of Hawaii on August twelfth, eighteen hundred and ninety-eight, are hereby declared to be citizens of the United States and citizens of the Territory of Hawai‘i.”

On March 18, 1959, the U.S. Congress again by statute changed the name of the American militia called the Territory of Hawai‘i to the State of Hawai‘i. The Statehood Act provided that 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.” The State of Hawai‘i today is an American militia and not a government.

Therefore, when we add the American militia that was formerly called the Provisional Government, the Republic of Hawai‘i, the Territory of Hawai‘i and now the State of Hawai‘i, into the equation and not just the physical presence and effective control of U.S. troops whether in 1893 or 1898, international law would recognize the beginning of the belligerent occupation to be February 1, 1893, which continues to date. The American occupation of the Hawaiian Kingdom is the longest ever in the history of international relations that emerged since the Treaty of Westphalia in 1648.