A zero-sum game is a “mathematical representation in game theory and economic theory of a situation that involves two sides, where the result is an advantage for one side and an equivalent loss for the other.” Examples of zero-sum games include poker and the American presidential election. In other words, the winner takes all. How does this type of game apply to the American occupation of the Hawaiian Kingdom? The answer to this question derives from State sovereignty under international law.
An independent State is the highest status that a political entity can achieve. There is no political status higher than the State. Sovereignty is the authority over the territory of the State exercised by the State’s governing body, which is geo-political. All governments of independent States are not identical because they are the outcome of their geographic location and political experiences, e.g. constitutional monarchies, and republics. But all States are the same, which have four components: a defined territory, a population, a centralized government, and the ability to enter into foreign relations with other States.
In the Larsen v. Hawaiian Kingdom arbitration, the arbitral tribunal at the Permanent Court of Arbitration stated, “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.” So there is no question that the Hawaiian Kingdom existed in the nineteenth century as a sovereign and independent State with all rights that afforded under international law.
In the Island of Palmas arbitration, which was a dispute between the United States and the Netherlands, the arbitrator explained that “Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.” And in the S.S. Lotus case, which was a dispute between France and Turkey, the Permanent Court of International Justice stated:
Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention (treaty).
Since 1898, the United States has been directly exercising it authority over Hawaiian Kingdom territory without any ‘permissive rule derived from international custom or from a convention (treaty).’ The United States claims its authority over the Hawaiian Islands derives from the joint resolution of annexation of July 7, 1898. However, the joint resolution is not customary international law nor is it a treaty. Rather, it is congressional legislation, which the United States Supreme Court, in United States v. Curtiss-Wright, 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.”
If congressional laws have no force in foreign territory, then the joint resolution could not have the force of annexing the Hawaiian Islands, which is 2,471 miles from its western border of California. The truth of the matter is that the joint resolution of annexation provided the means for erasing the history of the United States invasion of the Hawaiian Kingdom on January 16, 1893, and militarily overthrowing the Hawaiian government the following day, which, under international law, triggered the law of occupation. As an independent State under international law, the overthrow of the Hawaiian Kingdom government did not affect the Hawaiian State and its independence and sovereignty. U.S. Army Field Manual 27-10 unequivocally states that occupation does not transfer sovereignty. According to Section 358:
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.
The permissive rule under international law that allows one State to exercise authority over the territory of another State is Article 43 of the 1907 Hague Regulations, that mandates the occupant to establish a military government in order to provisionally administer the laws of the occupied State until there is a treaty of peace where the occupation comes to an end. Section 362 of the FM 27-10 explains that “Military government is the form of administration by which an occupying power exercises governmental authority over occupied territory.”
From January 17, 1893, to July 7, 1898, the United States has been unlawfully exercising its power, indirectly, over the territory of the Hawaiian State, through its puppet governments called the provisional government and the Republic of Hawai‘i that were installed after the overthrow. From July 7, 1898, to the present, the United States has been directly exercising unlawful authority over the territory of the Hawaiian State. How does international law and the law of occupation see this unlawful exercise of authority?
If the United States, to include the State of Hawai‘i, has no authority to exercise its power in Hawaiian territory, then everything that derives from its unlawful authority is invalid in the eyes of international law. This comes from the rule of international law called ex injuria jus non oritur, which is Latin for “law (or right) does not arise from injustice.” From this rule of international law, when applied to an Occupied State, is another rule of international law called postliminium, where all unlawful acts that an Occupying State may have done in occupied territory are invalid and cannot be enforced when the occupation comes to an end.
This rule also applied in the American Civil War from 1861-1865. In 1868, the U.S. Supreme Court had to mitigate the impact of this principle in the aftermath of when the war came to an end. In Texas v. White, the Supreme Court stated:
…that acts necessary to peace and good order among citizens, such for example, as acts sanctioning and protecting marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfer of property, real and personal, and providing remedies for injuries to person and estate, and other similar acts, which would be valid if emanating from a lawful government must be regarded in general as valid when proceeding from an actual, though unlawful, government, and that acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other acts of like nature, must, in general, be regarded as invalid and void.
All acts done by the Texas government were ‘invalid and void’ during the rebellion, but certain acts were only recognized as valid after the Civil War ended. The Supreme Court’s decision had a retroactive effect to give validity to acts that were previously invalid. Just as the rule applied during the American rebellion, this rule applies while the territory of a State is under occupation by an Occupying State. Acts done by an Occupying State, if it is authorized under international law, are valid and its validity would continue to be recognized as valid when the occupation comes to an end.
This is not the case, however, because the acts of the United States since January 17, 1893, to the present, have not been in accordance with the law of occupation but rather the war crime of usurpation of sovereignty during military occupation. Usurpation of sovereignty is the unlawful imposition of American laws and administrative measures within the territory of the Hawaiian Kingdom, a co-equal sovereign State.
The Hawaiian Council of Regency understands the scope and magnitude of the United States and the State of Hawai‘i’s violation of international laws even if the population does not see it themselves. The violation of international laws has rendered the population with absolutely no rights to property that can be protected, which include land, homes, cars, copyrights, trademarks, trade secrets and patents. The Council of Regency’s Operational Plan to Transition the State of Hawai‘i into a Military Government addresses this significant issue.
The Hawaiian Kingdom exists as a sovereign and independent State, even under occupation. This existence, under international law, precludes the United States, as the Occupying State, from exercising its power unless it does so by virtue of international law as an occupant. It cannot co-exist with the Hawaiian Kingdom in its own territory, except by virtue of the law of occupation which temporarily allows for it.
The unlawful acts done by the United States has rendered all rights to property, whether tangible or intangible, void and invalid. For the people to have their rights to property intact and valid, the United States must show that the Hawaiian Kingdom no longer exists and that it is the successor State to the Hawaiian Islands. It can’t because the Permanent Court of Arbitration already recognized the Hawaiian Kingdom continues to exist as a State since the nineteenth century. This is the devastating effect of the zero-sum on the people.
In 2011, Dr. Keanu Sai wrote a book titled Ua Mau Ke Ea – Sovereignty Endures: An Overview of the Political and Legal History of the Hawaiian Islands. Pū‘ā Foundation is the publisher of this book that can be purchased online at their website. This book draws from Dr. Sai’s doctoral dissertation in political science titled The American Occupation of the Hawaiian Kingdom: Beginning the Transition from Occupied to Restored State. Ua Mau is currently being used to teach Hawaiian history in the Middle Schools, High Schools, and entry level collage classes.
In 2020, Dr. Sai is an editor and author of a free eBook titled Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom. Contributing authors include Professor Matthew Craven from the University of London, SOAS, Law Department, on the subject of the Hawaiian Kingdom’s continued existence as a State under international law; Professor William Schabas from Middlesex University London, Law Department, on the subject of war crimes being committed in the Hawaiian Kingdom; and Professor Federico Lenzerini from the University of Siena, Italy, Department of Political and International Science, on the subject of human rights violations committed in the Hawaiian Kingdom and the right of self-determination of a population under military occupation. In 2022, a book review of the Royal Commission of Inquiry’s eBook was done by Dr. Anita Budziszewska from the University of Warsaw, which was published in the Polish Journal of Political Science. This book is currently being used in undergraduate and graduate courses at universities.
To access Dr. Sai’s other publications you can visit his University of Hawai‘i website. Dr. Sai firmly believes in the power of education. He often states, “The practical value of history, is that it is a film of the past, run through the projector of today, on to the screen of tomorrow.” It is through education and awareness that the national consciousness of the Hawaiian Kingdom will be restored to its rightful place.
At a ceremony yesterday at Hulihe‘e Palace in Kona, Island of Hawai‘i, Dr. Keanu Sai received an award from the Royal Order of Kamehameha I for “unwavering commitment to reactivate the Hawaiian Kingdom Government and rectify over a century of unlawful occupation.” Presenting the award was Ali‘i ‘Aimoku Alika Desha.
On April 15, 1927, Ali‘i ‘Aimoku John C. Lane wrote in the Honolulu Advertiser under the title “Kamehameha Order Marks 25 Years of Growth With Convention Beginning Today”:
On or about May 13, 1902, there met in the old “Foster hall” a group of prominent Hawaiians, and there discussed the establishing of a fraternal organization among the Hawaiians. Present at the meeting were George H. Huddy, James H. Boyd, Abraham Fernandez, Charles H. Rose, William H. Coney, John H. Wise, Rev. J.M. Ezera, David K. Ainoa, Johh K. Nakookoo, and others. The result was the creation and establishment of the Order of Kamehameha, and Prince Jonah Kuhio Kalanianaole was chosen Alii Aimoku, the highest position in the Order, which position he held continuously until his death on January 7, 1922.
Pictured below are members of the Order of Kamehameha at the State funeral of Queen Lili‘uokalani in 1917.
In 2010, Donovan Preza graduated with his M.A. Degree in Geography from the University of Hawai‘i at Mānoa. His Master’s thesis was titled “The Emperical Writes Back: Re-Examining Hawaiian Dispossession Resulting from the Māhele of 1848.” Preza, through analytical rigor and academic research, effectively turned on its head the false belief that has been promoted by the University of Hawai‘i since the 1990s that the Māhele of 1848 was a disaster for the Hawaiian people.
Preza, for his Master’s thesis, was also the recipient of the Norman Meller Research Award for the best MA research paper produced at the University of Hawai‘i in the social sciences or humanities and focused on the Pacific Islands. Here is his abstract for his thesis:
This research examines the transition of land tenure in Hawai‘i to a system of private property. Known as the Māhele, this transition was believed to have been the cause of dispossession of Hawaiians from land. This thesis questions presumptions identifying the Māhele as a sufficient condition of dispossession. Historical approach, interpretation, authority and evidence types are examined while questioning and contributing to such debates. The Māhele process is re-examined and a nuanced description of the process was provided. This resulted in the identification of previously un-examined set of data: the fee-simple sale of Government Land. Analysis of these sales revealed an alternate explanation for dispossession in Hawai‘i: the loss of governance. Ultimately this is a story of dispossession, how it has been understood, misunderstood, and re-understood in Hawai‘i.
UPDATE: The video has been updated to include questions of Dr. Keanu Sai from the Committee members after the presentation.
Dr. Keanu Sai’s presentation to the Maui County Council’s Disaster, Resilience, International Affairs, and Planning (DRIP) Committee on the update on the status of Hawai‘i under international law and accountability for war crimes on March 6, 2024. The video is produced by Kanaeokana.
There is much confusion on the 1848 Great Māhele that stems from the Hawaiian Indigeneity movement made up of scholars at the universities. This prompted Dr. Keanu Sai to write an article titled “Setting the Record Straight on Hawaiian Indigeneity” in 2021 that was published in volume 3 of the Hawaiian Journal of Law and Politics. Dr. Sai covers the false narrative of the Māhele that was promoted by the Hawaiian Indigeneity movement. The Māhele, as a process, is explained under the heading of Land Reform on page 67 in the eBook published by the Royal Commission of Inquiry. And the Royal Commission of Inquiry published its Preliminary Report on the Legal Status of Land Titles throughout the Real in 2020.
The Hawaiian Indigeneity movement manufactured the false belief that the Hawaiian Kingdom was controlled by Americans. In his book Dismembering Lahui: A History of the Hawaiian Nation to 1887, Professor Jon Osorio wrote that the Hawaiian Kingdom “never empowered the Natives to materially improve their lives, to protect or extend their cultural values, nor even, in the end, to protect that government,” because the system itself was foreign and not Hawaiian. Professor Sally Merry stated, in her book Colonizing Hawai‘i: The Cultural Power of Law, “the relationship between Euro-Americans and Native Hawaiians was a classical colonial relationship [that sought] to transform the society of the indigenous people and subsequently wrested political control from them.” Dr. Robert Stauffer wrote, in his book Kahana: How the Land was Lost, “the government that was overthrown in 1893 had, for much of its fifty-year history, been little more than a de facto unincorporated territory of the United States…[and] the kingdomʻs government was often American-dominated if not American-run.” And in her book Aloha Betrayed: Native Hawaiian Resistance to American Colonialism, Professor Noenoe Silva wrote that the overthrow “was the culmination of seventy years of U.S. missionary presence.” These conclusions have no basis in historical facts and relevant laws.
Another false narrative driven by the Hawaiian Indigeneity movement is that all Native Hawaiians are called Kanaka Maoli. In Hawaiian law, kanaka maoli refers to aboriginal Hawaiians that are pure blood, and those that are part aboriginal Hawaiian are hapa. According to Pukui and Elbert’s Hawaiian Dictionary, kanaka maoli are “Full-blooded Hawaiian persons.” This is also reflected in Bernice Pauahi’s will that established the Kamehameha Schools. Article 13 states, “I direct my trustees to devote a portion of each years income to the support and education of orphans, and others in indigent circumstances, giving the preference to Hawaiians of pure or part aboriginal blood.” Hawaiian is short for Hawaiian subject, which is the nationality, while aboriginal Hawaiian whether full or part is the race. If you are not a full-blooded aboriginal Hawaiian, you are not kanaka maoli but rather hapa.
The cornerstone of the Hawaiian Indigeneity movement is how terrible the 1848 Great Mahele was for the commoner or native tenant. In her book Native Land and Foreign Desires, Professor Lilikala Kame‘eleihiwa wrote, “The culmination of changes in traditional Land tenure in Hawai‘i in 1848 is commonly known as the ‘Great Māhele.’ I refer to it simply as the ‘1848 Māhele’ because it proved to be such a terrible disaster for the Hawaiian people, and the word ‘great’ has a connotation of superior. It was a tragic historical event, a turning point that had catastrophic negative consequences for Hawaiians.”
In his book, Dismembering Lahui, Professor Osorio agrees with Professor Kame‘eleihiwaʻs conclusion by writing, “As significant an event as the Māhele has proven to be, historians have seen it as a way of making specific indictments either of Ali‘i or of colonialism. No one disagrees that the privatization of lands proved to be disastrous for Maka‘ainana [commoners], yet the focus of every study, from John Chinen’s 1958 work to Kame‘eleihiwa in 1992, has been to try and establish the principal responsibility for its ‘failure.’”
Professor Kame‘eleihiwa wrongly claimed that the native tenants that submitted their claims with the Board of Commissioners to Quiet Land Titles, also known as the Land Commission, were the only native tenants that got land through the Māhele. She stated that the commoner class only received “a total of 28,658 acres of Land, which is less than 1 percent of the total acreage of Hawai‘i.” These native tenants were able to acquire fee-simple titles to their land under the 1850 Act Confirming Certain Resolutions of the King in Privy Council, passed on the 21st day of December, A.D. 1849, Granting to the Common People Allodial titles for their own Lands and House lots, and certain other Privileges. This law came to be known as the Kuleana Act.
The Kuleana Act addressed those native tenants that were not able to file their claim with Land Commission before the due date of February 14, 1848, by empowering them to go to the Minister of the Interior or his special agents to acquire up to fifty acres of land. The Minister of the Interior was responsible for the administration of Government lands that it received through the Mahele on June 7, 1848. In 1882, the Surveyor General reported to the Legislative Assembly that between “the years 1850 and 1860, nearly all the desirable Government land was sold, generally to natives.”
Donovan Preza, in his M.A. thesis on the Great Māhele tallied the number of acreage acquired by native tenants within this ten year period to be a remarkable 111,448.36 acres. This number of acreage is in addition to the 28,658 acres that commoners acquired from the Land Commission that Kame‘eleihiwa and Osorio hang theirs hats on as their sole evidence of oppression. By 1893, native tenants acquired from the Government a total of 167,290.45 acres. This is not evidence of dispossession and oppression of the commoners by the aristocracy and missionaries as argued by the movement of Hawaiian Indigeneity.
In a podcast interview on November 28, 2020, Professor Osorio made a startling comment. He said that the Māhele was “done to protect the hoaʻāina, the makaʻāinana, the people of the land who are not chiefs; to protect their existence on the land, and this is one of the most amazing things about the Māhele, and it was something that I didn’t really understand when I wrote my book. It was something that, really…Professor Keanu Sai makes clear to all of us.”
Professor Kame‘eleihiwa mistakenly thought that the Māhele was a singular event and not a process for separating the rights of the Government, Konohikis and the native tenants. The rights of these three entities were undivided. In the Hawaiian language, mahele is to divide and mahele‘ole is undivided. The 1839 Declaration of Rights established three vested rights in all the lands of the Hawaiian Kingdom. As the 1840 Constitution explains:
Kamehameha I, was the founder of the kingdom, and to him belonged all the land from one end of the Islands to the other, though it was not his own private property. I belonged to the chiefs and people in common, of whom Kamehameha I was the head, and had the management of the landed property.
The land tenure system was feudal. In 1882, the Surveyor General reported to the Legislative Assembly, “The ancient system of land titles in the Hawaiian Islands was entirely different from that of tribal ownership prevailing in New Zealand, and from the village or communal system of Samoa, but bore a remarkable resemblance to the feudal system that prevailed in Europe during the Middle Ages.”
As part of their vassalage, the chiefs had to pay the King taxes from their plantations, which was in swine, and the native tenants had to provide labor tax for both King and their chiefs on their plantation lands. The chiefs had to pay a particular weight of the swine per plantation or its equivalent in cash. The chiefs were also referred to as landlords. According to the Laws of 1842 Laws of the Hawaiian Islands that accompanied the 1840 Constitution, it stated:
The following is the rate of taxation for plantations, and, farms including plantations. There shall be no state, country, town and district tax, but only the following:
A large farm—a swine one fathom long. A smaller one—a swine three cubits long. A very small one—a swine one yard long. If not a fathom swine, then 10 dollars. If not a three cubit swine, then 7 ½ dollars. If not a yard swine, then 5 dollars.
For the native tenants, the 1842 laws stated:
Hereafter a tax in labor shall not be required on every week of the month.—On two weeks, labor shall be done for his Majesty the King and also the landlords, and two weeks the people shall have wholly to themselves. The first week in the month the people shall work two days for the king and one for the landlords; the second week in the month they shall work one day for his Majesty the King, and two days for the landlords, and the next two weeks the people shall have to themselves.
Foreigners who were granted lands by the King and the chiefs were not part of the feudal system so they did not do any labor tax. On December 10, 1845, the Legislature began land reform by enacting a law establishing the Land Commission. The mandate of the Land Commission was to investigate all claims to private property that existed outside of the feudal system. Claimants to these lands had to file their claims for investigation between February 14, 1846, and February 14, 1848. Those that were required to file their claims to land were those who acquired their lands from the King or a chief prior to December 10, 1845.
After the investigation, the Land Commission would grant a Land Commission Award with a number if the claim was found valid. If it was rejected there was no Land Commission Award. Foreigners and those chiefs or native tenants that possessed property outside of the feudal system were required to file their claims. If they did not get their claim in before February 14, 1848, the lands reverted to the King and Government.
According to the Principles of the Land Commission:
The following benefits will result from these investigations and awards:—
1st. They will separate the rights of the King and Government, hitherto blended, and leave the owner, whether in fee, or for life, or for years, to the free agency and independent proprietorship of his lands as confirmed. So long as the King or Government continue to have an undivided proprietary share in the domain the King’s and Premier’s consent is necessary, by the old law, to real sales, or tranfers from party to party, and, by parity of reasoning, to real mortgages also. This is because of the share which Government or the body politic has in the lands of the kingdom uniformly. To separate these rights, and disembarrass the owner or temporary possessor from this clog upon his free agency, is beneficial to that proprietor in the highest degree, and also to the body politic; for it not only sets apart definitely what belongs to the claimant, but untying his hands, enables him to use his property more freely, by mortgaging it for commercial objects, and by building upon it, with the definite prospect that it will descend to his heirs. This will tend more rapidly to an export, and to a permanency of commercial relations, without which, there can never be such a revenue as to enable the Government to foster its internal improvements.
At this stage, the Land Commission was not authorized by law to grant titles to property but only to investigate and where found to be a valid claim issue a Land Commission Award. These Land Commission Awards vary from fee-simple, life estates, to leasehold. Below is Land Commission Award no. 511 issued to J.P. Parker. The Land Commission verified that Kamehameha III and the Premier Kekāuluohi conveyed a conditional fee-simple title to Parker on January 1, 1843.
On December 11, 1847, King Kamehameha III and his chiefs in Privy Council began to discuss the process of separating the rights of the Government from the chiefs, who were also called Konohikis, that would eventually lead to separating the rights of the Government and the Konohikis from native tenants. The purpose was to bring to an end the feudal system whereby the Konohiki and the native tenant will have an allodial title to their lands. According to Blackʻs Law Dictionary, allodial is “Free; not holden of any lord or superior; owned without obligation of vassalage or fealty; the opposite of feudal.” Fee-simple is synonymous with allodial.
There were 254 Konohikis and King Kamehameha III considered himself the highest of all Konohikis. He was making the separation of himself as a Konohiki under the feudal system and as Head of the Government. In the Privy Council minutes it states:
The King now claims to Konohiki of a great portion of the lands. He therefore makes known to the other Konohikis, that they are only holders of Lands under him, but he will only take a part and leave them a part…subject only to the rights of the Tenants.
The Chiefs do not greatly object to this, but they ask. Has the Government a third interest in the lands left to us? The King replies Yes and the Government has 1/3 interest in his. There are some who say no. Let us have an Allodial Title to what the King has left us subject only to the rights of the Tenants.
The Māhele formally began on January 17, 1848, where the King and Konohikis signed in a book the separation of the lands between themselves. This gave them a life estate to the lands assigned to them in the Māhele book called ahupua‘a and ‘ili kūpono. If they wanted to acquire the fee-simple interest in these lands they had to give the Government certain lands they received in the Māhele that would satisfy the one-third interest of the Government. Kamehameha III was the first Konohiki to do this when the Government, acting through its Legislature, accepted certain lands to be Government lands and the remaining lands became the fee-simple ownership of Kamehameha III. Kamehameha III’s lands came to known as Crown Lands that descended to the successors of the throne. According to the 1848 Act Relating to the Lands of His Majesty the King and of the Government:
[Listing of the ahupua‘a and ‘ili]
To be the private lands of His Majesty Kamehameha III, to have and to hold to himself, his heirs, and successors, forever; and said lands shall be regulated and disposed of according to his royal will and pleasure subject only to the rights of tenants.
[Listing of the ahupua‘a and ‘ili]
Made over to the Chiefs and People, by our Sovereign Lord the King, and we do hereby declare those lands to be set apart as the lands of the Hawaiian Government, subject always to the rights of tenants.
During the Māhele process amongst the Konohikis, native tenants were encouraged to file their claim with the Land Commission before the due date of February 14, 1848. Many native tenants did not make it in time. This is where the confusion lies regarding the Māhele. What is important to remember, the Land Commission was not authorized to grant titles to those who filed their claim, but rather only to investigate the claims to land. Native tenants that filed their claims with the Land Commission did not divide their rights yet with the Government or the Konohikis so they could not claim to have a fee-simple title to their lands. This will change the following year.
On December 21, 1849, the King in Privy Council passed resolutions so that the common people can get allodial or fee-simple titles to their lands, and to empower the Land Commission to grant these titles on behalf of the King and Konohikis. This would facilitate the process of separating the rights of the Government and the Konohikis from those claims that were filed with the Land Commission by native tenants. Although the resolution empowered the Land Commission to grant titles to native tenants, the Legislature was needed to amend the law that would allow the Land Commission to grant titles.
On August 6, 1850, the Legislature enacted an Act Confirming Certain Resolutions of the King and Privy Council, passed on the 21st day of December, A.D. 1849, Granting to the Common People Allodial titles for their Own Lands and House Lots, and Certain other Privileges. This law came to known as the Kuleana Act. The Kuleana Act stated:
Be it enacted by the House of Nobles and Representatives of the Hawaiian Islands, in Legislative council assembled:
That the following sections which were passed by the King, in privy council on the 21st of December, A.D. 1849, when the legislature was not in session, be and are hereby confirmed; and that certain other provisions be inserted, as follows:
That fee-simple titles, free of commutation, be and are hereby granted to all native tenants, who occupy and improve any portion of any government land, for the lands they so occupy and improve, and whose claims to said lands shall be recognized as genuine by the land commission: Provided, however, that this resolution shall not extend to konohikis or other persons having the care of government lands, or to the house lots and other lands in which the government have an interest in the districts of Honolulu, Lahaina and Hilo.
By and with the consent of the King and chiefs in privy council assembled, it is hereby resolved, that fee-simple titles free of commutation, be and are hereby granted to all native tenants who occupy and improve any lands other than those mentioned in the preceding resolution, held by the King or any chief or konohiki for the land they so occupy and improve; Provided, however, that this resolution shall not extend to house lots or other lands situated in the districts of Honolulu, Lahaina and Hilo
That the board of commissioner to quiet land titles be, and is hereby empowered to award fee-simple titles in accordance with the foregoing resolutions; to define and separate the portions of lands belonging to different individuals; and to provide for an equitable exchange of such different portions, where it can be done, so that each man’s land may be by itself.
That a certain portion of the government lands in each island shall be set apart, and placed in the hands of special agents, to be disposed of in lots from one to fifty acres, in fee-simple, to such natives as may not be otherwise furnished with sufficient land, at minimum price of fifty cents per acre.
In granting to the people, their house lots in fee-simple, such as are separate and distinct from their cultivated lands, the amount of land in each of said house lots shall not exceed one quarter of an acre.
In granting to the people their cultivated grounds, or kalo lands, they shall only be entitled to what they have really cultivated, and which lie in the form of cultivated lands; and not such as the people may have cultivated in different spots, with the seeming intention of enlarging their lots; nor shall they be entitled to the waste lands.
When the landlords have taken allodial titles to their lands, the people on each of their lands, shall not be deprived of the right to take firewood, house timber, aho cord, thatch, or ti leaf, from the land on which they live, for their own private use, should they need them, but they shall not have a right to take such articles to sell for profit. They shall also inform the landlord or his agent, and proceed with his consent. The people shall also have a right to drinking water, and running water, and the right of way. The springs of water, and running water, and roads shall be free to all, should they need them, on all lands granted in fee-simple: Provided, that this shall not be applicable to wells and water courses which individuals have made for their own use.
Sections 1, 2, 3, 5, 6 and 7 applied to those native tenants that filed their claim with the Land Commission. While sections 4 and 7 applied to those native tenants that were not able to file their claim with the Land Commission but would go to the Minister of the Interior or special agents appointed by him to separate their interest with the Government. This group of native tenants did not get Land Commission Awards, but rather Royal Patent Grants. Below is Land Commission Award no. 4491 to Kuapu‘u by virtue of the Kuleana Act, followed by Royal Patent Grant no. 1042 to Kawahinekalewa by virtue of the Kuleana Act.
Of the three vested rights in the land, the Māhele was able to separate the Government from the 254 Konohiki lands, which included the Crown lands, and native tenants throughout the nineteenth century, whether by a Land Commission Award or a Royal Patent Grant. The Kuleana Act has not been repealed and still exists today for native tenants to acquire up to fifty acres in fee-simple. This is why the Māhele is a continuing process and not a singular event.
The Māhele was such a monumental event of moving Hawaiian land tenure from feudal to private ownership that it became known as the Great Māhele. On December 18, 1848, the King and Privy Council approved certain rules to be followed for the Māhele that was drafted by Hawaiian Chief Justice William Lee. After submitting the rules for consideration, Chief Justice Lee stated:
In submitting the above rules to the consideration of You Majesty, I beg to state that I believe these rules to be such as are dictated by the Constitution and Laws of Your Kingdom and by the liberal and bountiful spirit which it has pleased Your Majesty to manifest for the good of Your Nation. It is my firm conviction that this silent and bloodless in the landed tenures of Your Kingdom will be the most blessed change that has ever fallen to the lot of Your Nation. It will remove the mountain of oppression that has hither to rested upon the productiveness of your soil, unbind the fetters of industry and wealth, and give a life and action to the dormant resources of Your Kingdom, which cover your land with the stream of prosperity and gladness. It is difficult at this day to foresee the bright results of this momentous change. I am aware that the division of lands between the Chiefs and Tenants of Your Kingdom will be attended with a multitude of difficulties. I cannot say that the great mass of Your Nation are full prepared to receive so great an Emancipation. They may spurn this proposed freedom. But I do not sincerely believe, that this great measure, by raising the Hawaiian Nation from a state of hereditary servitude, to that of a free and independent right in the soil they cultivate, will promote industry and agriculture, check depopulation, and ultimately prove the salvation of Your People. I believe it to be a measure which will meet the approval of Your Majesty in years to come, and cause your name to be remembered with veneration and gratitude by generations yet unborn. I believe that if this measure be fully carried out in the liberal spirit in which it is begun, if the lands of Your Majesty’s Kingdom be unlocked, it will open the hidden fountains of prosperity, and prove the dawn of a new and bright era to Your Kingdom.
When the government of the Hawaiian Kingdom was restored in 1997 by a Council of Regency, it came into existence where the population of the Hawaiian Islands effectively had their national consciousness of the Hawaiian Kingdom from the nineteenth century obliterated and replaced with an American national consciousness. The process by which this obliteration occurred was by a deliberate and consistent policy of denationalization through Americanization that was formally instituted in the public and private school system in 1906 by the Department of Public Instruction, which is currently called the Department of Education.
According to the Programme, “The teacher will call one of the pupils to come forward and stand at one side of the desk while the teacher stands at the other. The pupil shall hold an American flag in military style. At second signal all children shall rise, stand erect and salute the flag, concluding with the salutation, ‘We give our heads and our hearts to God and our Country! One Country! One Language! One flag!’”
In 1907, Harper’s Weekly magazine covered the Americanization taking place at Ka‘ahumanu and Ka‘iulani Public Schools, which has students from the first to eighth grade. When the reporter visited Ka‘iulani Public School, he documented the policy being carried out and took a picture of the 614 school children saluting the American flag. He wrote:
At the suggestion of Mr. Babbitt, the principal, Mrs. Fraser, gave an order, and within ten seconds all of the 614 pupils of the school began to march out upon the great green lawn which surrounds the building. Hawaii differs from all our other tropical neighbors in the fact that grass will grow here. To see beautiful, velvety turf amid groves of palms and banana trees and banks of gorgeous scarlet flowers gives a feeling of sumptuousness one cannot find elsewhere.
Out upon the lawn marched the children, two by two, just as precise and orderly as you can find them at home. With the ease that comes of long practice the classes marched and countermarched until all were drawn up in a compact array facing a large American flag that was dancing in the northeast trade-wind forty feet above their heads. Surely this was the most curious, most diverse regiment ever drawn up under that banner—tiny Hawaiians, Americans, Britons, Germans, Portuguese, Scandinavians, Japanese, Chinese, Porto-Ricans, and Heaven knows what else.
‘Attention!’ Mrs. Fraser commanded.
The little regiment stood fast, arms at sides, shoulders back, chests out, heads up, and every eye fixed upon the red, white, and blue emblem that waved protectingly over them.
‘Salute!’ was the principal’s next command.
Every right hand was raised, forefinger extended, and the six hundred and fourteen fresh, childish voices chanted as one voice:
‘We give our heads and our hearts to God and our Country! One Country! One Language! One Flag!’
The last six words were shot out with a force that was explosive. The tone, the gesture, the gaze fixed reverently upon the flag, told their story of loyal fervor. And it was apparent that the salute was given as spontaneously and enthusiastically by the Japanese as by any of the other children. There were hundreds of them in the throng, and their voices rang out as clearly as any others, their hands raised in unison. The coldest clod of a man who sees the children perform this act of reverence must feel a tightening at the throat, and it is even more affecting to see these young atoms from all the world actually being fused in the crucible from which they shall issue presently as good American citizens.”
Under customary international law, Americanization is a war crime of denationalizing the inhabitants of an occupied territory. Germans and Italians were prosecuted for the same war crime after World War II for implementing a systematic plan of Germanization and Italianization in occupied territories.
The insurgency relied on loyalty, not merit, to fill the ranks of their provisional government in 1893 and their so-called Republic of Hawai‘i in 1894. When the United States seized control of the Hawaiian Islands by renaming the Republic of Hawai‘i to the Territory of Hawai‘i in 1900 loyalty in the ranks were continued by the insurgency pretending to be American citizens.
The lead insurgent, Sanford Dole, as President of the Republic of Hawai‘i, was appointed by President McKinley to be the Governor of the Territory of Hawai‘i. Loyalty to the insurgency was party affiliation to the Republican Party. In 1959, when the United States changed the name of the Territory of Hawai‘i to the State of Hawai‘i, loyalty was now under a new party—the Democratic Party, which continues today. While international law renders the current apparatus of the State of Hawai‘i not as a legitimate government but rather an occupant that is committing war crimes against the population of the Hawaiian Islands, it has not altered the firm grip of loyalty in the minds of alleged war criminals. What will eventually break this chain is criminal culpability and prosecutions like what occurred with with the Nazi Party in Germany.
When the Hawaiian government was restored in 1997 by a Regency, its officers had to conform to Hawaiian constitutional law and administrative processes. King Kamehameha III established, as an administrative process, meritocracy, which is where government jobs were based on merit and not solely on loyalty. Responding to a slew of appeals to remove these foreign advisors who replaced native Chiefs, Kamehameha III penned the following letter that was communicated throughout the realm—a letter that speaks to the time and circumstance the kingdom faced and establishing a meritocracy:
Kindly greetings to you with kindly greetings to the old men and women of my ancestors’ time. I desire all the good things of the past to remain such as the good old law of Kamehameha that “the old women and the old men shall sleep in safety by the wayside,” and to unite with them what is good under these new conditions in which we live. That is why I have appointed foreign officials, not out of contempt for the ancient wisdom of the land, but because my native helpers do not understand the laws of the great countries who are working with us. That is why I have dismissed them. I see that I must have new officials to help with the new system under which I am working for the good of the country and of the old men and women of the country. I earnestly desire to give places to the commoners and to the chiefs as they are able to do the work connected with the office. The people who have learned the new ways I have retained. Here is the name of one of them, G.L. Kapeau, Secretary of the Treasury. He understands the work very well, and I wish there were more such men. Among the chiefs Leleiohoku, Paki, and John Young [Keoni Ana] are capable of filling such places and they already have government offices, one of them over foreign officials. And as soon as the young chiefs are sufficiently trained I hope to give them the places. But they are not now able to become speakers in foreign tongues. I have therefore refused the letters of appeal to dismiss the foreign advisors, for those who speak only the Hawaiian tongue.
The Council of Regency and its officers had to become proficient in Hawaiian constitutional law, administrative law, land tenure, public international law, international humanitarian law, and the law of occupation. This is why Dr. Keanu Sai, as Chairman of the Council of Regency, secured a M.A. degree and a Ph.D. degree in political science specializing in international relations and law. Dr. Sai’s merit is also reflected in multiple peer review articles and published books on the topic of the Hawaiian Kingdom and its continued existence.
Loyalty was satisfied by Hawaiian administrative law where the members of the Cabinet Council were required to take the following oath, “I solemnly swear in the presence of Almighty God, that I will faithfully support the Constitution and laws of the Hawaiian Kingdom, and faithfully and impartially discharge the duties of [Minister of Foreign Affairs, the Minister of the Interior, the Minister of Finance, and the Attorney General].”
Under the law of occupation there is a working relationship between the occupant and the Regency as the government of the occupied State. International law constrains and regulates the actions of both entities with its collective duty of protecting the population of the occupied State. The law of occupation places another duty, which is paramount, on the head of the State of Hawai‘i Department of Defense, Major General Kenneth Hara, to proclaim the transformation of the State of Hawai‘i into a Military Government and begin to comply with the law of occupation.
According to the U.S. Manual for Courts-Martial, a “duty may be imposed by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the Service.” In this case, MG Hara’s duty is imposed upon him by Article 43 of the 1907 Hague Regulations, and U.S. Department of Defense Directive 5001.1 that states it is the duty of the Army in “[occupied] territories abroad [to] provide for the establishment of a military government pending transfer of this responsibility to other authority.” It is not the duty of the Navy, Marines, or the Air Force. U.S. Army field manuals (“FM”) regulating military government are FM 27-5—Civil Affairs Military Government, FM 27-10—The Law of Land Warfare, FM 3-57—Civil Affairs Operations, and FM 6-37—The Commander’s Handbook on the Law of Land Warfare.
MG Hara’s failure to perform this duty that is established by treaty as an Army general officer is a crime under the Uniform Code of Military Justice, and a war crime of omission under international law. A soldier who is found guilty of willful dereliction of duty resulting in death or grievous bodily harm is subject to “dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.”
The war crimes tribunals in Nuremburg and Tokyo that followed the end of hostilities during the Second World War, “marked a clear recognition by the international community that all members of the chain of command who participate or acquiesce in war crimes must bear individual criminal responsibility.” Command responsibility arises when the military superior during an occupation of a foreign State fails to exercise sufficient control and accountability for his/her subordinates’ in the commission of war crimes. And a “non-military commander is [also] responsible for omissions which lead to the commission of crimes.” The doctrine of command responsibility arises when the superior, by omission, fails to control or punish those under his/her command.
Paragraph 4-24 of the 2020 Army Regulations 600-200 states, “Commanders are legally responsible for war crimes they personally commit, order committed, or know or should have known about and take no action to prevent, stop, or punish.” The failure of MG Hara to transform the State of Hawai‘i into a Military Government has allowed for war crimes to be committed with impunity throughout the Hawaiian Islands by the unlawful imposition of American laws over Hawaiian territory, which is the war crime of usurpation of sovereignty during military occupation. This imposition of American laws has led to secondary war crimes such as unfair trials, unlawful confinement, confiscation or destruction of property, denationalization, pillage, etc.
According to the U.S. Department of Defense, command and control is the “exercise of authority and direction by a properly designated commander over assigned forces in the accomplishment of the mission.” Establishing a Military Government is a mission of the Army in occupied territory, and when it is established, it is not based upon democratic principles. U.S. Army Field Manual 27-5 states, “Military government is exercised when an armed force has occupied such territory, whether by force or agreement, and has substituted its authority for that of the sovereign or previous government. The right of control passes to the occupying force limited only by the rules of international law and established customs of war.”
FM 27-5 also states under command responsibility, the “theater commander bears full responsibility for military government; therefore, he is usually designated as military governor or civil affairs administrator, but is authorized to delegate his authority and title, in whole or in part, to a subordinate commander. In occupied territory the commander, by virtue of his position, has supreme legislative, executive, and judicial authority, limited only by the laws and customs of war and by directives from higher authority.” And the reasons for the establishment of military government “are either military necessity as a right, or as an obligation under international law.”
The mission of a military government assumes that the population of the occupied territory is hostile to its presence, which is precisely why the military governor has command and control. The military governor does not maintain the loyalties of the former government but rather severs it by replacing it with his authority in order to temporarily administer the laws of the occupied State until a peace treaty has been agreed upon that would bring the occupation to an end.
After General Dwight Eisenhower proclaimed the establishment of a Military Government in Germany on April 19, 1945, began the de-Nazification of Germany. In his proclamation, General Eisenhower stated, “we shall obliterate Nazi-ism and German Militarism. We shall overthrow the Nazi rule, dissolve the Nazi Party and abolish the cruel, oppressive and discriminatory laws and institutions which the Party has created. We shall eradicate that German Militarism which has so often disrupted the peace of the world. Military and Party leaders, the Gestapo and others suspected of crimes and atrocities will be tried and, if guilty, punished as they deserve.”
Like in the case of Germany, the Military Government for Hawai‘i would have to “obliterate” American-ism and American Militarism in order to begin the restoration of Hawaiian Kingdom national consciousness that existed before the American invasion on January 16, 1893. American-ism and American Militarism was established by the American authorities themselves in order to conceal the illegality of the occupation and the militarization of an occupied State. This would not be an easy task but it is, nevertheless a duty imposed by treaty and Army regulations, which falls squarely on MG Hara despite his personal feelings and/or perceived loyalties to the Democratic Party of the current administration. As an Army general officer, MG Hara is held to a higher standard than any person pretending to be an American politician in an occupied State, and his training and military education reveals it.
There would, however, be no duty imposed upon MG Hara if the Hawaiian Kingdom had ceased to exist as a State under international law, but this is not the case because his Staff Judge Advocate, Lieutenant Colonel Lloyd Phelps, could not find any legal evidence that that was the case.
In 2014, LTC Phelps was the Deputy Prosecuting Attorney for the County of Maui in State of Hawai‘i v. English et al., criminal no. 14-1-0819, brought before Judge Joseph P. Cardoza of the Second Circuit Court. Attorney General for the Hawaiian Kingdom, Dexter Ka‘iama, served as the defendants’ counsel who filed a motion to dismiss both criminal complaints on the grounds that the court lacked subject matter jurisdiction because of the American military occupation of the Hawaiian Kingdom. Mr. Ka‘iama has been serving as the Attorney General of the Hawaiian Kingdom and member of the Council of Regency since August 11, 2013.
An evidentiary hearing was held at the Second Circuit Court on March 5, 2015, where Dr. Keanu Sai served as expert witness for the defense. The purpose for the evidentiary hearing was to meet the burden of proof established by the Intermediate Court of Appeals in State of Hawai‘i v. Lorenzo whereby defendants that are contesting the jurisdiction of the court must provide a “factual (or legal) basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.”
In Dr. Sai’s expert testimony, he provided the factual circumstances of the United States military occupation of the Hawaiian Kingdom and the unlawful imposition of American municipal laws as to the reason why the Court does not have subject matter jurisdiction because its authority extends from the 1959 Statehood Act passed by the Congress, which has no extra-territorial effect. In the court’s transcripts, Dr. Sai stated that for the Court to proceed it would violate “Article 147 [1949 Fourth Geneva Convention], unfair trial [as] a grave breach, which is considered a war crime.” When asked by Judge Cordoza, “Any cross-examination?” LTC Phelps responded, “Your Honor, the State has no questions of Dr. Sai. Thank you for his testimony. One Army officer to another, I appreciate your testimony.”
Binding on MG Hara was also the fact that the United States already recognized the continued existence of the Hawaiian Kingdom as a State and the Council of Regency as its government by opinio juris. Additionally, the United States explicitly recognized the Council of Regency, by a mutual agreement, so it could be granted permission to access all records and pleadings of the Larsen v. Hawaiian Kingdom case at the Permanent Court of Arbitration.
For MG Hara to continue to deny the overwhelming evidence that imposes upon him the duty and obligation to transform the State of Hawai‘i into a Military Government, he is establishing a very strong basis of “willfulness” of not performing his duty, which satisfies the criminal intent for the war crime of omission.
The Chair of the Maui County Council’s Disaster, Resilience, International Affairs and Planning (DRIP) Committee, Councilwoman Tamara Paltin, invited Dr. Keanu Sai to give an update on the status of Hawai‘i under international law at the DRIP Committee meeting on March 6, 2024. In 2019, Dr. Sai did three presentations on the Hawaiian Kingdom for the Maui County Council’s Land Use Committee.
On October 20, 2023, the Council of Regency, as the government of the occupied State, initiated the process to terminate the 1884 Supplemental Convention (“Pearl Harbor Convention”). Secretary of State Antony Blinken received the notice of termination from the Council of Regency on October 26, 2023, at 05:47 hours, which consequently triggered the tolling of twelve months. According to the terms of the Pearl Harbor Convention, the treaty will be terminated on October 26, 2024, 05:47 hours.
The Pearl Harbor Convention extended the duration of the 1875 Commercial Reciprocity Treaty an additional seven years until 1894, unless either the United States or the Hawaiian Kingdom gives notice to the other of its intention to terminate the treaty and convention. According to Article I:
The High Contracting Parties agree, that the time fixed for the duration of the said Convention, shall be definitely extended for a term of seven years from the date of the exchange of ratifications hereof, and further, until the expiration of twelve months after either of the High Contracting Parties shall give notice to the other of its wish to terminate the same, each of the High Contracting Parties being at liberty to give such notice to the other at the end of the said term of seven years or at any time thereafter.
As a condition for the extension of the commercial treaty, the United States sought exclusive access to Pearl Harbor. Article II of the Pearl Harbor Convention provides:
His Majesty the King of the Hawaiian Islands grants to the Government of the United States the exclusive right to enter the harbor of Pearl River, in the Island of Oahu, and to establish and maintain there a coaling and repair station for the use of vessels of the United States, and to that end the United States may improve the entrance to said harbor and do all other things needful to the purpose aforesaid.
According to Article 1, the Pearl Harbor Convention came into effect in 1887 after ratifications were exchanged in Washington, D.C., and would last for seven years and further until “either of the High Contracting Parties shall give notice to the other of its wish to terminate the same,” where termination would commence twelve months after the notification is received by the other High Contracting Party. Although the Hawaiian government was unlawfully overthrown by the United States on 17 January 1893, the Hawaiian Kingdom as a State under international law continued to exist.
After the Hawaiian government was overthrown by the United States in 1893, the United States did nothing with Pearl Harbor until 1908 when the United States Congress allocated monies to build a naval station instead of a “coaling and repair station.” This violated the terms of the Pearl Harbor Convention as well as violating the Hawaiian Kingdom’s neutrality under international law.
A note of the Hawaiian Kingdom attached to the Pearl Harbor Convention stated, “that Hawaiian Sovereignty and jurisdiction were not impaired that the Hawaiian Government was not bound to furnish land for any purpose and that the privilege to be granted should be coterminous with the Treaty.” Coterminous is defined as “having the same boundaries,” which is limited to Pearl Harbor.
The unlawful presence of the United States military has transformed the Hawaiian Kingdom from a neutral State into a military target by its adversaries, which first occurred on 7 December 1941 when Japan’s military forces attacked U.S. military targets. The high probability of military attacks by other countries, such as North Korea, China, and Russia continue due to the rising tensions in the Indo-Pacific region. In 1990, the Federal Emergency Management Agency’s Risks and Hazards—A State by State Guide listed 6 targets for nuclear attack that would effectively annihilate the entire Island of O‘ahu. The presence of the United States military places the civilian population of the Hawaiian Kingdom into perilous danger.
In light of the termination of the Pearl Harbor Convention, all Title 10 military forces of the four component commands of the Indo-Pacific Command—Army, Navy, Air Force and Marines, shall forthwith cease and desist any and all military exercises, to include utilizing live fire ranges across the islands, and anywhere within 200 nautical miles from the low water mark of the shoreline of the islands that constitute the Hawaiian Kingdom’s territorial sea and its exclusive economic zone, and to complete the withdrawal from the Hawaiian Islands by 26 October 2024.
The Staff Judge Advocates of the Indo-Pacific Command and the 25th Infantry Division were also included with the notifications. In his letters, Dr. Sai restated from the Council of Regency’s proclamation terminating the Pearl Harbor Convention:
And, We do require that when the United States has received this notice of termination, it shall, prior to the expiration of twelve months in accordance with Article I of the 1884 Supplemental Convention, remove all movable property at its military facilities throughout the Hawaiian Islands, including unexploded munitions, and fuel, with the exception of real property attached to the land or erected on it, including manmade objects, such as buildings, homes, structures, roads, sewers, and fences, to include on other properties that have been or are currently under its supervision and command.
Dr. Sai stated that the reasoning for notifying the component commands was because it was unclear whether the State Department notified Indo-Pacific Command of the termination of the Pearl Harbor Convention. Dr. Sai also stated that it did not appear that U.S. troops were beginning to be withdrawn. In his letters to the commanders of the component commands, Dr. Sai addressed the war crimes of confiscation or destruction of property:
Military installations and target ranges beyond Pearl Harbor were unlawfully confiscated by the United States from the Hawaiian Kingdom public lands and the estates of private persons in violation of international humanitarian law and the law of occupation. Live fire at these target ranges constitute destruction of property. According to Professor William Schabas, renowned expert on international criminal law, war crimes and human rights, in his legal opinion on war crimes being committed in the Hawaiian Kingdom, there are five elements of the war crime of confiscation or destruction of property.
Following the end of hostilities during the Second World War, the war crimes tribunals in Nuremburg and Tokyo, “marked a clear recognition by the international community that all members of the chain of command who participate or acquiesce in war crimes must bear individual criminal responsibility.” Command responsibility arises when the military superior during an occupation of a foreign State fails to exercise sufficient control and accountability for his/her subordinates’ in the commission of war crimes. And a “non-military commander is [also] responsible for omissions which lead to the commission of crimes.” The doctrine of command responsibility arises when a superior, by omission, fails to control or punish those under his/her command.
Dereliction of the performance of a duty arises when a commander took no action to prevent, stop, or punish. Confiscation and destruction of property are war crimes and commanders of the four component commands have a duty to stop the further commission of these and other war crimes. Dereliction of the performance of a duty is also a war crime of omission.
Dr. Sai’s letter concluded with:
Since 17 April 2023, I have been in communication with Major General Kenneth Hara of the State of Hawai‘i Department of Defense, regarding his duty under international law and Army regulations, to transition the State of Hawai‘i into a military government. Of note in my meeting with BG Okamura on November 1, 2023, he stated to me that the withdrawal of U.S. troops because of the termination of the Pearl Harbor Convention will create chaos. I acknowledged that it would indeed be chaotic, and then answered that is precisely why MG Hara must establish a military government to facilitate the withdrawal of U.S. troops and begin to comply with the law of occupation. BG Okamura responded to me with that’s a good plan.
Unlike American politicians, members of the military have a duty and responsibility to comport with international law and regulations. To begin to withdraw Title 10 troops under your command is a duty imposed by the terms of a treaty and that you have command responsibility. Your presence in this country was by virtue of a treaty that would last from 1887 to 1894, and further, unless either country gives notice to the other of its intention to terminate. That notice to terminate was received by the United States on 26 October 2023 at 05:47 hours, which triggered the tolling of 12 months for termination. Therefore, your withdrawal is a duty imposed by the termination of that treaty that is not affected by any presidential or congressional action.
When United States President Grover Cleveland admitted that the overthrow of the government of the Hawaiian Kingdom was an “act of war,” it triggered international humanitarian law and the law of occupation on January 17, 1893. Instead of restoring Queen Lili‘uokalani as the Executive Monarch under a treaty called an executive agreement, by exchange of notes, between the Queen and President Cleveland, on December 18, 1893, Cleveland’s successor, President William McKinley unilaterally seized the Hawaiian Islands when he signed into American law the joint resolution of annexation on July 7, 1898. The purpose of the unilateral seizure of the Islands was to establish a military outpost to protect the west coast of the United States.
For the past 131 years, the United States has not been held to account for their violations of international law and the sovereignty of the Hawaiian Kingdom because violations of international law did not hold governmental officials of the State accountable for the actions of soldiers who committed war crimes. In 1919, there was an attempt to hold to account the German Kaiser for war crimes by an international tribunal established by the Allies of the First World War.
In its report, the Commission on the Responsibility of the Authors of the First World War concluded, “All persons belonging to enemy countries, however high their position may have been, without distinction of rank, including Chiefs of States, who have been guilty of offenses against the laws and customs of war or the laws of humanity, are liable to criminal prosecution” by the international tribunal. The United States, however, was against this. U.S. members of the Commission stated:
In regard to the latter point, it will be observed that the American representatives did not deny the responsibility of the heads of states for acts which they may have committed in violation of law, including in so far as their country is concerned, the laws and customs of war, but they held that heads of states are, as agents of the people, in whom the sovereignty of any state resides, responsible to the people for the illegal acts which they may have committed, and that they are not and that they should not be made responsible to any other sovereignty.
In other words, the United States position was to have the countries themselves prosecute their Heads of State. This position also implied that if the country’s won’t prosecute their Heads of State, their criminal culpability would go unchecked. The United States position would change, however, after the fall of the Nazi government and the Imperial Japanese government during the Second World War. Here an international tribunal was established to try high-level officials of the Nazi regime for war crimes and high-level officials of the Imperial Japanese government. This unified system laid the groundwork for the creation of international criminal law.
As stated by the International Military Tribunal at Nuremberg, in United States, France, Great Britain, and the Soviet Union v. Göring et al. (1948), “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” Abstract entities are countries called States. In other words, you can’t punish the State, but you can hold to account members of the government of a State, whether civilian or military, for war crimes.
In 2002, the International Criminal Court (ICC) was established in The Hague, Netherlands for the prosecution of war crimes. 123 States approved the Rome Statute that established the ICC with jurisdiction over their territories. Collectively, you have 124 governmental organizations to prosecute war crimes, which are the 123 prosecutors and criminal courts of the States, and the prosecutor and courts of the ICC. Prosecutions for war crimes by the ICC are “for the most serious crimes of international concern,” while prosecution by the 123 States are for war criminal that enters into the territory. According to Article 1 of the Rome Statute:
An International Criminal Court is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concerns, as referred to in this Statute, and shall be complementary to national criminal jurisdiction. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.
The significance of Article 1 is that the primary responsibility to prosecute war criminals are the 123 States and not the ICC. The war criminal reports by the Royal Commission of Inquiry (RCI) establish the evidentiary basis for prosecution by these States when those subjects of the reports enter their territory. As part of its mandate, it is also the duty of the RCI to ensure that these war criminals get prosecuted by all means necessary. There are no statutes of limitations to prevent the prosecution of war crimes. The Council of Regency is currently in communication with the legal counsel at the United Nations regarding the Hawaiian Kingdom’s accession to the Rome Statute that grants jurisdiction of the ICC over the territory of the Hawaiian Kingdom.
For Major General Hara, his duty under international humanitarian law and the law of occupation is to transform the State of Hawai‘i into a military government on February 17. The action to be taken by members of the State of Hawai‘i Legislature and the County Councils is to cease and desist by February 17 the commission of the war crime of usurpation of sovereignty during military occupation.
Their failure to comply does not affect the mandate of the RCI or the continued existence of the Hawaiian Kingdom. Their failure to comply with the law of occupation merely serves as evidence of meeting the elements of the war crime and having criminal culpability.
In a letter that was emailed to Major General Hara yesterday by Dr. David Keanu Sai, as Head of the Royal Commission of Inquiry, he opened with:
On behalf of the Council of Regency, I hereby make a final appeal for you to perform your duty of transforming the State of Hawai‘i into a military government on February 17, 2024, in accordance with Article 43 of the 1907 Hague Regulations, Article 64 of the Fourth Geneva Convention, and Army regulations. To not do so, you will have command responsibility for the commission of the war crime of usurpation of sovereignty during military occupation by the legislative, executive, and judicial branches of the State of Hawai‘i.
Copied to the letter included members of the State of Hawai‘i Legislature and the County Councils. In that letter, Dr. Sai then laid out the circumstances that led to establishing the date of February 17, 2024, as the deadline for action. After 24 years of exposure of the Hawaiian Kingdom as an occupied State, the State of Hawai‘i is now at a crossroads. To continue on the path of illegality, or to change course because of legality is the question that faces officials of the State of Hawai‘i. In his letter to the members of the Legislature and County Councils on February 7, 2024, Dr. Sai wrote:
[I]f you shall not cease the enactment of American municipal laws and continue to commit the war crime of usurpation of sovereignty during military occupation with impunity, you will be the subject of a war criminal report, which will provide the factual information, to include this letter of communication, that satisfies the aforementioned four elements of criminal culpability. I urge you not to take this lightly. War crimes have no statute of limitations.
These ultimatums put forth by the Royal Commission of Inquiry stems from its duty and responsibility to investigate and prosecute war crimes committed within Hawaiian territory. This responsibility is not a choice but a duty, under international law, in order to protect the population of an occupied State. On the contrary, there is no responsibility or duty to enact American laws by officials that were elected by the American citizenry in the territory that is occupied by the United States because to do so is the war crime of usurpation of sovereignty during military occupation. However, to commit an international crime the act must be accompanied with mens rea or the guilty mind. In other words, the war crime must be committed with intent and knowledge.
Prior to receiving the letter from the Royal Commission of Inquiry it could be assumed that the members of the Legislature and the County Councils were not aware that their action in enacting American laws in an occupied State was unlawful under international law. But after they received the letter, the circumstances have changed, and their continued action of enacting laws would be committed with intent and knowledge.
Last year, when Germany prosecuted Irmgard Furchner, a 97-year-old woman, of being an accessory to more than 10,000 murders for her role as a secretary to the SS commander of the Nazis’ Stutthof concentration camp during the Second World War, the prosecutors had to prove intent. In the case, the judges were convinced Furchner “knew and, through her work as a stenographer in the commandant’s office of the Stutthof concentration camp from June 1, 1943, to April 1, 1945, deliberately supported the fact that 10,505 prisoners were cruelly killed by gassings, by hostile conditions in the camp,” by transportation to the Auschwitz death camp and by being sent on death marches at the end of the war.
In the Hawaiian situation, the enactment of American laws is the source of secondary war crimes such as denationalization through Americanization, unfair trial by a court that lacks lawful authority, unlawful confinement ordered by a judge without authority, destruction of property as the case of Mauna Kea, etc. Therefore, the enactment of American laws in an occupied State is not an innocent act of legislative responsibility unless there is irrefutable evidence that the Hawaiian Kingdom is not an occupied State. If the Hawaiian Islands constitute a part of the territory of the United States and that the State of Hawai‘i is a lawfully established government under the constitution and laws of the United States, then officials of the State of Hawai‘i have nothing to worry about.
Professor William Schabas, renowned expert on international criminal and war crimes, states that in order to establish criminal intent for war crimes, there is no requirement for a legal evaluation as to the existence of an occupation stemming from an international armed conflict. Instead, there is only a requirement for the awareness of the factual circumstances of an occupation. Conversely, a legal evaluation would be welcomed not for determining whether an act constitutes a war crime, but for providing irrefutable evidence that the Hawaiian Kingdom does not continue to exist as an occupied State.
This is why Major General Hara, after being apprised by Dr. Sai on April 17, 2023, that war crimes are being committed in the Hawaiian Kingdom as an occupied State, he tasked his Staff Judge Advocate, Lieutenant Colonel Lloyd Phelps, to investigate. He could not find any legal basis to conclude Major General Hara has no such duty to establish a military government because the Hawaiian Kingdom is not an occupied State and that the State of Hawai‘i is a lawful entity. There exists no such legal opinion.
In fact, the Department of Justice’s Office of Legal Counsel does have a legal opinion on the annexation of Hawai‘i by a congressional legislation that it published in 1988. The opinion is not what you would expect from the federal government on Hawai‘i. The legal opinion was advising the State Department on the legal issues raised by a proposed Presidential proclamation to extend the territorial sea from three miles off the coast of the United Stats to twelve miles. In that legal opinion, Acting Assistant Attorney General Douglas W. Kmiec concluded,
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.
In support of this conclusion, Acting Assistant Attorney General Kmiec relied on statements made in 1898 by members of the Congress, and also writings of constitutional scholar Professor Westel Willoughby who stated:
The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was not denied, but it was denied that this might be done by a simple legislative act. … Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force—confined in its operation to the territory of the State by whose legislature it is enacted.
If it is unclear how Congress could annex foreign territory by legislative action, it would be equally unclear how Congress could establish the State of Hawai‘i by legislative action in 1959. Without a treaty all American laws imposed in the Hawaiian Kingdom constitutes the war crime of usurpation of sovereignty during military occupation.
In 2014, however, there was an attempt by an official of the State of Hawai‘i to get an answer from the State Department regarding the functions of the State of Hawai‘i in light of the 1988 legal opinion. The Office of Hawaiian Affairs top executive, Dr. Kamana‘opono Crabbe, submitted a formal request with the U.S. Department of State requesting a legal opinion from the U.S. Attorney General’s Office of Legal Counsel addressing the legal status of the Hawaiian Kingdom under international law.
In his letter to Secretary of State John F. Kerry, Crabbe said, “because the Department of State is the United States’ executive department responsible for international relations and who also housed diplomatic papers and agreements with the Hawaiian Kingdom, I am respectfully submitting a formal request to have the Department of State request an opinion from the Office of Legal Counsel, Department of Justice, addressing the following questions:
• First, does the Hawaiian Kingdom, as a sovereign independent State, continue to exist as a subject of international law?
• Second, if the Hawaiian Kingdom continues to exist, do the sole-executive agreements bind the United States today?
• Third, if the Hawaiian Kingdom continues to exist and the sole-executive agreements are binding on the United States, what effect would such a conclusion have on United States domestic legislation, such as the Hawai‘i Statehood Act, 73 Stat. 4, and Act 195?
• Fourth, if the Hawaiian Kingdom continues to exist and the sole-executive agreements are binding on the United States, have the members of the Native Hawaiian Roll Commission, Trustees and staff of the Office of Hawaiian Affairs incurred criminal liability under international law?”
This letter boxed in the Secretary of State by forcing him to answer the first question as to whether the Hawaiian Kingdom continues to exist as a subject of international law. If the Office of Legal Counsel can write a legal opinion that the Hawaiian Kingdom does not continue to exist, they don’t have to answer following three questions. The Secretary of State did not make the request for a legal opinion from the Office of Legal Counsel, which affirms the 1988 legal opinion that Congress could not annex the Hawaiian Islands by legislation.
Major General Hara and members of the Legislature and the County Councils should take heed of this information as February 17, 2024, is fast approaching.
The legal basis for the Council of Regency’s establishment under Hawaiian constitutional law and the legal doctrine of necessity was based on the continued existence of the country called the Hawaiian State. What was unlawfully overthrown on January 17, 1893, was the government of the Hawaiian Kingdom and not the Hawaiian Kingdom as a State under international law. In fact, international law protects the State and its continuity from the continuous violations of its sovereignty by another State. What international law cannot protect, however, is the population of the Hawaiian Islands from denationalization through Americanization that began as a formal policy in 1906.
Under international criminal law, denationalization is the process of replacing the national consciousness of the Hawaiian Kingdom, to include its language, in the minds of school children with the national consciousness of the United States and its English language. Within three generations since 1906, the national consciousness of the Hawaiian Kingdom was wiped clean in the minds of the population in the Hawaiian Islands. Denationalization is a policy carried out in the school systems of the occupied States that attempts to change the national consciousness in the minds of school children. The United States and the Allied Powers in the First World War determined denationalization to be a war crime committed by Germany, Austria, and Bulgaria against the population of the Kingdom of Serbia when Serbia was occupied.
From the Allied Powers 1919 Commission on Responsibilities for the First World War, under the heading “attempts to denationalize the inhabitants of occupied territory,” the Commission charged several crimes committed in Serbia by the Bulgarian authorities: “Efforts to impose their national characteristics on the population;” “Serbian language forbidden in private as well as in official relations. People beaten for saying “Good morning” in Serbian;” Inhabitants forced to give their names a Bulgarian form;” “Serbian books banned—were systematically destroyed;” “Archives of churches and law-courts destroyed;” “Schools and churches closed, sometimes destroyed;” “Bulgarian schools and churches substituted—attendance at school compulsory;” “Population forced to be present at Bulgarian national solemnities.” The Commission also stated that in Serbia the Austrian and German authorities “interfered with religious worship, by deportation of priests and requisition of churches for military purposes. Interfered with the Serbian language.” In United States v. Greifelt et al., in 1948, the war crimes tribunal specifically referred to the war crime of denationalization by German authorities in occupied territories during the Second World War. The tribunal observed:
Attempts of this nature were recognized as a war crime in view of the German policy in territories annexed by Germany in 1914, such as in Alsace and Lorraine. At that time, as during the war of 1939-1945, inhabitants of an occupied territory were subjected to measures intended to deprive them of their national characteristics and to make the land and population affected a German province. The methods applied by the Nazis in Poland and other occupied territories, including once more Alsace and Lorraine, were of a similar nature with the sole difference that they were more ruthless and wider in scope than in 1914-1918. In this connection the policy of ‘Germanizing’ the populations concerned, as shown by the evidence in the trial under review, consisted partly in forcibly denationalizing given classes or groups of the local population, such as Poles, Alsace-Lorrainers, Slovenes and others eligible for Germanization under the German People’s List. As a result in these cases the programme of genocide was being achieved through acts which, in themselves, constitute war crimes.
The operative word used when describing the policy and acts of denationalization committed against the population of occupied States in both World Wars was “attempts.” The reason for the choice of this word was because the First World War only lasted for four years, and the Second World War only lasted six years. The American occupation is now at 131 years where the lies to conceal the occupation have become institutionalized and perceived to be the truth. As British novelist Dresden James wrote, “When a well-packaged web of lies has been sold gradually to the masses over generations, the truth will seem utterly preposterous and its speaker a raving lunatic.”
Another war crime committed by German, Austrian and Bulgarian authorities in occupied territories during the First World War was usurpation of sovereignty during military occupation. Usurpation of sovereignty is the imposition of the laws of the occupying State over the territory and its population of the occupied State. During the military occupation of a State, the occupying State is obligated to temporarily administer the laws of the occupied State until there is a treaty of peace. To impose the occupying State’s laws is a crime.
The Commission on Responsibility for the First World War charged that in Poland the German and Austrian forces had “prevented the populations from organising themselves to maintain order and public security” and that they had “[a]ided the Bolshevist hordes that invaded the territories.” It said that in Romania the German authorities had “instituted German civil courts to try disputes between subjects of the Central Powers or between a subject of these powers and a Romanian, a neutral, or subjects of Germany’s enemies.” In Serbia, the Bulgarian authorities had “[p]roclaimed that the Serbian State no longer existed, and that Serbian territory had become Bulgarian.” It listed several other war crimes of Bulgaria committed in occupied Serbia: “Serbian law, courts and administration ousted;” “Taxes collected under Bulgarian fiscal regime;” “Serbian currency suppressed;” “Public property removed or destroyed, including books, archives and MSS (e.g., from the National Library, the University Library, Serbian Legation at Sofia, French Consulate at Uskub);” “Prohibited sending Serbian Red Cross to occupied Serbia.” It also charged that in Serbia the German and Austrian authorities had committed several war crimes: “The Austrians suspended many Serbian laws and substituted their own, especially in penal matters, in procedure, judicial organisation, etc.;” and “Museums belonging to the State (e.g., Belgrade, Detchani) were emptied and the contents taken to Vienna.”
The crime of “usurpation of sovereignty” was referred to by Judge Blair of the American Military Commission in a separate opinion in United States v.Alstötter et al. of 1951, “This rule is incident to military occupation and was clearly intended to protect the inhabitants of any occupied territory against the unnecessary exercise of sovereignty by a military occupant.”
When the Hawaiian government was restored by a Council of Regency in 1997, it also held vicarious liability for its actions. As a constitutional monarchy, the primary duty of the Hawaiian government is to protect the rights of its population. In Larsen v. Hawaiian Kingdom at the Permanent Court of Arbitration, Larsen was alleging that he was not being protected by the Regency because the Regency, he argued, was allowing the unlawful imposition of American laws over him which led to his unfair trial and incarceration. The Regency denied this allegation but used the Permanent Court of Arbitration to recognize the continued existence of the Hawaiian Kingdom as a State and the Regency as its government.
This duty for governments to protect its population from war crimes reached the international level in 2005. At the United Nations World Summit in 2005, the Responsibility to Protect was unanimously adopted. The principle of the Responsibility to Protect has three pillars: (1) every State has the Responsibility to Protect its populations from four mass atrocity crimes—genocide, war crimes, crimes against humanity and ethnic cleansing; (2) the wider international community has the responsibility to encourage and assist individual States in meeting that responsibility; and (3) if a state is manifestly failing to protect its populations, the international community must be prepared to take appropriate collective action, in a timely and decisive manner and in accordance with the UN Charter. In 2009, the General Assembly reaffirmed the three pillars of a State’s responsibility to protect their populations from war crimes and crimes against humanity. And in 2021, the General Assembly passed a resolution on “[t]he responsibility to protect and the prevention of genocide, war crimes, ethnic cleansing and crimes against humanity.” The third pillar, which may call into action State intervention, can become controversial.
Rule 158 of the International Committee of the Red Cross Study on Customary International Humanitarian Law specifies that “States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.” This “rule that States must investigate war crimes and prosecute the suspects is set forth in numerous military manuals, with respect to grave breaches, but also more broadly with respect to war crimes in general.”
What faced the Regency was how to protect a population from the commission of war crimes when that population itself had been completely denationalized into believing that the State of Hawai‘i exists as a lawful government under United States laws. The Regency’s strategy after returning from the PCA in the Netherlands was to effectively engage the devastating effects of denationalization through academic research at the university level. Since 2000, this research made public through published peer review articles, master’s theses, doctoral dissertations, books, and classroom instruction have managed to tear down the facade that the State of Hawai‘i is lawful and that the United States is an occupying Power.
During the occupation of the territory by an occupying State, there are two legal systems that exist at the same time, that of the occupied State and that of the occupying State. As Professor Krystina Marek explains, in “the first place: of these two legal orders, that of the occupied State is regular and ‘normal,’ while that of the occupying power is exceptional and limited. At the same time, the legal order of the occupant is…strictly subject to the principle of effectiveness, while the legal order of the occupied State continues to exist notwithstanding the absence of effectiveness.” The Regency knew that while the State of Hawai‘i exercised effective, but unlawful, control of Hawaiian territory there are rules that apply called international humanitarian law and the law of occupation. To knowingly violate these international laws created criminal culpability. While the Regency has no effective control as a result of the American occupation, it does have effective control of factual and legal information that it will use to compel compliance where the prolonged occupation will eventually come to an end by a treaty of peace.
Determined to hold to account individuals who have committed war crimes and human rights violations throughout the Hawaiian Islands, being the territory of the Hawaiian Kingdom, the Council of Regency, by proclamation on April 17, 2019, established a Royal Commission of Inquiry (“RCI”) in similar fashion to the United States proposal of establishing a Commission of Inquiry after the First World War “to consider generally the relative culpability of the authors of the war and also the question of their culpability as to the violations of the laws and customs of war committed during its course.” Dr. David Keanu Sai serves as Head of the RCI and Professor Federico Lenzerini from the University of Siena, Italy, as its Deputy Head.
On February 7, 2024, the RCI sent a letter of communication to all members of the State of Hawai‘i legislature and the County Councils regarding the war crime of usurpation of sovereignty during military occupation. In the letter, Dr. Sai apprised them of his communication he’s had since April 17, 2023, with Major General Kenneth Hara, State of Hawai‘i Adjutant General, regarding his duty to transform the State of Hawai‘i into a Military Government and to begin to administer the laws of the Hawaiian Kingdom as the occupied State. Dr. Sai directed Major General Hara that, in accordance with international laws and Army regulations, he will issue a proclamation transforming the State of Hawai‘i into a Military Government. Should he fail to do so would be a dereliction in the performance of his duty and the war crime of omission.
Major General Hara would also be made the subject of an RCI war criminal report for the purpose of prosecution. There are no statutes of limitation for war crimes, which means a person can be prosecuted regardless of his age. In 2022, a German court convicted a 97-year-old women for war crimes she committed during the Second World War.
Major General Hara also has the duty to protect officials and employees of the State of Hawai‘i and the Counties who, like the Legislature and County Councils, are committing the war crime of usurpation of sovereignty during military occupation. The RCI has given more than enough time for Major General Hara to have completed his due diligence done by his Staff Judge Advocate Lieutenant Colonel Lloyd Phelps as to the continued existence of the Hawaiian Kingdom as an occupied State. On July 27, 2023, he acknowledged that the Hawaiian Kingdom continues to exist, which consequently triggered his duty.
There are two laws that distinguish themselves from each other. There are “national” laws that are established within countries called States, and there are “international” laws that are established by the States themselves. Sources of national laws include the constitution, whether written or unwritten, statutes enacted by the legislature, and decisions by the highest court if the country is a common law system, e.g. United States and the Hawaiian Kingdom. Civil law countries like Italy and Germany do not have judge made laws. An indicator of whether the country is common law is if they have jury trials.
Every State is geo-political, which means that each State has their own geographical location and unique political experience that contribute to the function of their government, whether autocratic or democratic. And foreign influences and interests is what drives government reform and survival. In this regard, no two countries are alike.
Current international law has its roots in the Middle Ages of Europe. At the time, the Holy Roman Empire had great influence over the kings and dukes called Cannon Law. However, commercial, and maritime law was developing as well. In England the Law Merchant was established that covered rules governing foreign trade, which England, because of its naval power, declared was universal. This resulted in mercantile courts being established in trading ports throughout Europe to resolve disputes between traders of goods. According to Professor Malcolm Shaw,
Such rules, growing out of the Middle Ages, constituted the seeds of international law, but before they could flourish, European thought had first to be developed by that intellectual explosion known as the Renaissance. This complex of ideas changed the face of European society and ushered in the modern era of scientific, humanistic and individualistic thought.
The eventual fall of the supremacy of the Holy Roman Empire in 1648 gave rise to the States headed by kings and dukes. With a history of interaction between themselves that grew into custom prior to the fall, the interactions escalated with the introduction of the concept of sovereignty and centralized control of government of the State by another concept called the Leviathan, especially in the States of England, France and Spain. The concept of Leviathan was espoused by Thomas Hobbs in 1651 that advocated for a centralized monarchical form of government. With the printing press invented in the fifteenth century, this Hobbsian theory reached the ruling classes across Europe, who at the time were the only ones that could read.
With the rise of States and their interaction with each other, custom became the foundation of international law, which was supplemented with treaties. Eventually, principles of law that prevailed in the different States became norms or rules of international law that was universally accepted. When the Kingdom of Hawai‘i became a British Protectorate in 1794, the Hawaiian Kingdom in the nineteenth century was very much influenced by British forms of governance and the development of international law.
As a result of the positivist movement within States, which was a movement based on a scientific approach in thought rather than on faith, the movement eventually moved into the political and legal realms of governance called legal positivism. This movement eventually created the basis for a departure from the natural law of kings and dukes that relied on cannon law and moral thought, to a legal system that is based on existing and verifiable laws established by the legislature or the judges in a common law system. It establishes logic, consistency, and measurability like the methods of science and mathematics. Most importantly, legal positivism promotes predictability. In the courts of a common law country, this is called stare decisis, which is decision making by precedent set in previous court decisions.
Legal positivism eventually advocated the rule of law and not the politics of power, which drove many countries in Europe in the mid-nineteenth century into constitutional forms of governance and the recognition of civil and political rights. The French Revolution was an extension of this movement against absolute rule by a King. The Hawaiian Kingdom was riding this wave of government reform as it spread throughout Europe, and it successfully evolved from absolute rule to a constitutional form of governance with democratic principles without suffering the pains of revolution by the people like the case of France.
Positivism eventually would reach the international realm and be the driving force in reforming international law. Since constitutionalism separated government from the person of the king, which means the king was no longer the supreme absolute ruler but now a constitutional head of government, there would now be a separation of the government from the State.
In the sixteenth century, French jurist and political philosopher Jean Bodin stressed the importance that “a clear distinction be made between the form of the state, and the form of the government, which is merely the machinery of policing the state.” Nineteenth century political philosopher Frank Hoffman also emphasizes that a government “is not a State any more than a 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.” Professor Quincy Wright, a twentieth century American political scientist, also concludes that, “international law distinguishes between a government and the state it governs.” Therefore, a State would continue to exist despite its government being overthrown by military force by another State’s armed forces.
As a result, customary international law would begin to be codified into treaty law. One particular aspect of customary international law was to bring order into the chaos of war, which was recognized as a means of enforcement of international law. Codification of the international laws of war began at the Brussels Conference in 1874 where the representatives of powerful and weak States advocated the formulation of the laws of war through multilateral treaties. While the first multilateral treaties that codified the laws of war were not done until 1899 called the Hague Conventions, rules of war eventually became accepted by States as customary international law, and they were recognized by States when they were at war since the mid-nineteenth century.
When a State’s territory is “effectively” occupied, customary international law obligates the occupying State to administer the laws of the occupied State. This is reflected in Articles 2 and 3 of the 1874 Brussels Declaration where, “[the occupying State] shall take all the measures in his power to restore and ensure, as far as possible, public order and safety [and] shall maintain the laws which were in force in the country in peacetime, and shall not modify, suspend or replace them unless necessary.” Although the Declaration failed to be signed off by the European States and become codified, it did have scholarly approval. The Institut de droit international (IDI) in 1875 declared:
[A]lthough there was room for improvement, the new rules on occupation as suggested by the 1874 Brussels Declaration were essentially more favorable to peaceful citizens and public and private ownership in occupied territories than what had been provided by practice thus far and by the teaching of most scholars. The IDI subsequently adopted the same rules in its Oxford Manual on Land Warfare (1880).
Eventually codification occurred in 1899. Article 43 of the 1899 Hague Regulations states, “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.” According to Professor Eyal Benvenisti:
The law of occupation as ultimately expressed in the 1899 Hague Regulations imposes two types of obligations on an army that seizes control of enemy land during war: the obligation to protect the life and property of the inhabitants and the obligation to respect the sovereign rights of the ousted government.
The “text of Article 43, according to Professor Benvenisti, “was accepted by scholars as mere reiteration of the older law.” Professor Doris Graber states that “nothing distinguishes the writing of the period following the 1899 Hague code from the writing prior to that code. And according to Professor Georg Schwarzenberger, “the Hague Regulations…was declaratory of international customary law.” The United States government also recognizes that Article 43 is customary international law that predates the Hague Regulations. In a 1943 legal opinion, the United States stated:
The Hague Convention clearly enunciated the principle that the laws applicable in an occupied territory remain in effect during the occupation, subject to change by the military authorities within the limits of the Convention. Article 43: … This declaration of the Hague Convention amounts only to a reaffirmation of the recognized international law prior to that time.
The administration of occupied territory is set forth in the Hague Regulations, being Section III of the Hague Regulations. The 1899 Hague Regulations was superseded by the 1907 Hague Regulations. Also, consistent with what was generally considered the international law of occupation, in force at the time of the Spanish-American War that predates the codification, the “military governments established in the territories occupied by the armies of the United States were instructed to apply, as far as possible, the local laws and to utilize, as far as seemed wise, the services of the local Spanish officials.”
Commenting on the occupation of the Hawaiian Kingdom, Professor Patrick Dumberry states:
[T]he 1907 Hague Convention protects the international personality of the occupied State, even in the absence of effectiveness. Furthermore, the legal order of the occupied State remains intact, although its effectiveness is greatly diminished by the fact of occupation. As such, Article 43 of the 1907 Hague Convention IV provides for the co-existence of two distinct legal orders, that of the occupier and the occupied.
Stark parallels can be drawn between what the United States did to the Hawaiian Kingdom and what Iraq did to Kuwait in 1990, commonly referred to as the First Gulf War. Just as Iraq, without justification, invaded Kuwait and overthrew the Kuwaiti government August 2, 1990, the United States did the same to the Hawaiian Kingdom and its territory. Where Kuwait was under a belligerent occupation by Iraq for 7.5 months, the Hawaiian Kingdom has been under a belligerent occupation by the United States for 131 years.
Hiding the occupation does not legalize it under international law. The international law of occupation has and continues to apply in the prolonged American occupation of the Hawaiian Kingdom. Hawaiian national consciousness is regained through education and knowing its legal and political history.
International law literally means the law between (inter) nations called States and not above these States. Domestic or municipal laws, on the other hand, are laws that reside within (intra) a State and that the persons in the territory of the State are subject to these laws. The reason why international is between and not above States is because they are considered politically independent from each other and are sovereign over their territory and their nationals abroad. This creates sovereign equality among the States. Therefore, for international law to be established, the State has to consent by international custom or by treaty.
According to article 38 of the Statute of the International Court of Justice these are five primary sources of international law: (a) treaties between States; (b) customary international law derived from the practices of State; (c) general principles of law recognized by civilized nations; and as subsidiary means for the determination of rules of international law; (d) judicial decisions and the writings of “the most highly and qualified publicists.”
Regarding customary international law there must be evidence that States accept the practice as law. The evidence must show a consensus among States concerning rules or actions—practices done by States as well as by international organizations that were established by States. According to Professor Ian Brownlie this evidence includes the following:
diplomatic correspondence, policy statements, press releases, the opinions of official legal advisers, official manuals on legal questions, e.g. manuals of military law, executive decisions and practices, order to naval forces etc., comments by governments on drafts produced by the International Law Commission, state legislation, international and national judicial decisions, recitals in treaties and other international instruments, a pattern of treaties in the same form, the practice of international organs, and resolutions relating to legal questions in the United Nations General Assembly.
According to the International Court of Justice, for a rule of customary international law to exist, there needs to be “two conditions [that] must be fulfilled” where there is a “‘settled practice’ together with opinio juris,” where the practice is accepted as law by States. This acceptance can be achieved by the silence or omission of the concerned States regarding the practice. In other words, States do not always have to say “I accept as law” the practice that was done in order for it to be considered law. Opinio juris is Latin for “an opinion of law.” The opinio juris can be the creation of a “new” rule of international law, or the acceptance of an “existing” rule of international law.
An example of a “new” rule of international law was when the Hawaiian Kingdom was recognized as an independent State by Great Britain and France on November 28, 1843. As a recognized independent State, the Hawaiian Kingdom would be protected under the rules of international law, in particular, the “existing” rule that the Hawaiian Kingdom as a State would continue to exist despite the military overthrow of its government. This existing rule is called the presumption of continuity of a State, which means that the State is presumed to continue to exist despite the removal of its government by another State.
This existing rule of international law is explained by Judge James Crawford where he states, 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,” and belligerent occupation “does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” Addressing the presumption of the German State’s continued existence despite the military overthrow of the Nazi government during the Second World War, Professor Brownlie explains:
Thus, after the defeat of Nazi Germany in the Second World War the four major Allied powers assumed supreme power in Germany. The legal competence of the German state [its independence and sovereignty] did not, however, disappear. What occurred is akin to legal representation or agency of necessity. The German state continued to exist, and, indeed, the legal basis of the occupation depended on its continued existence.
Therefore, “If one were to speak about a presumption of continuity,” explains Professor Matthew Craven, “one would suppose that an obligation would lie upon the party opposing that continuity to establish the facts substantiating its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by reference to a valid demonstration of legal title, or sovereignty, on the part of the United States, absent of which the presumption remains.” Evidence of “a valid demonstration of legal title, or sovereignty, on the part of the United States” would be an international treaty, particularly a peace treaty, whereby the Hawaiian Kingdom would have ceded its territory and sovereignty to the United States. Examples of foreign States ceding sovereign territory to the United States by a peace treaty include the 1848 Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico and the 1898 Treaty of Peace between the United States of America and the Kingdom of Spain. There is no treaty of peace where the Hawaiian Kingdom ceded its sovereignty and territory to the United States, which means the Hawaiian Kingdom continues to exist under international law and that the present system of government under United States domestic law called the State of Hawai‘i is illegal.
One piece of evidence of international custom is “the practice of international organs” that have been established and are managed by States like the United Nations or the Permanent Court of Arbitration (PCA). The former was established by States who became Contracting States to the 1945 Charter of the United Nations, and the latter was established by States who became Contracting States to the 1899 Hague Convention for the Pacific Settlement of International Disputes (1899 PCA Convention), which was superseded by the 1907 Hague Convention for the Pacific Settlement of International Disputes (1907 PCA Convention). What will eventually come before the PCA in the Hawaiian Kingdom case is whether the Hawaiian Kingdom continues to exist as a State from the nineteenth century, and not whether the Hawaiian Kingdom is a new State. This brings it squarely under the existing rule of “continuity” or “discontinuity” of a State that was already established.
Because the PCA establishes ad hoc arbitral tribunals to resolve international disputes on a case by case basis, it must first have institutional jurisdiction before it can form the tribunal. For those States that are Contracting States to the 1899 PCA Convention when the PCA was established, they had automatic access to the PCA facilities. However, it was possible for non-Contracting States to have access to the PCA facilities as well.
Article 26 addressed the jurisdiction of the PCA in two parts, for Contracting States and for non-Contracting States. The first part of article 26 states, “The International Bureau at The Hague is authorized to place its premises and its staff at the disposal of the Signatory Powers for the operations of any special Board of Arbitration.” In other words, if the arbitral tribunal, being a “special Board of Arbitration,” was formed by the Contracting State or States and not by the PCA, they could still have access to the PCA “premises and its staff.”
The second part 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.” In other words, the second part grants access to disputes with non-Contracting States. In international law, the term “Powers” are synonymous with “States.”
At a meeting of the Contracting States in The Hague, Netherlands, it was agreed that the 1899 PCA Convention would be replaced by the 1907 PCA Convention. Article 47 reiterated the two-part institutional jurisdiction of the PCA. The first part states, “The Bureau is authorized to place its offices and staff at the disposal of the Contracting Powers for the use of any special Board of Arbitration.” The second part states, “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.”
Prior to the Larsen v. Hawaiian Kingdom case that lasted from November 8, 1999, to February 5, 2001, there were six instances where the PCA Secretary General recognized either both or one of the parties to the dispute to be a non-Contracting State to the 1899 or the 1907 PCA Conventions. The action taken by the PCA Secretary General is a practice of an “international organ” recognizable under international custom. When the PCA recognizes the State as a non-Contracting State it relies on “existing” rules of international law that provides for its existence or, in the case of the Hawaiian Kingdom, its continued existence.
In annex 2 of the PCA’s 111th Annual Report in 2011, certain cases have a footnote that states, “Pursuant to article 47 of the 1907 Convention (article 26 of the 1899 Convention).” In annex 2, the Larsen v. Hawaiian Kingdom is listed as the 33rd case under the jurisdiction of the PCA since its inception in 1899. If both parties to the dispute are Contracting States but the dispute involves a “special Board of Arbitration” than that created by the PCA it would be noted to have been established pursuant to article 47 of the 1907 PCA Convention or pursuant to article 26 of the 1899 PCA Convention. If the case involved a non-Contracting State, it would also be cited by the same wording of the footnote. Here is the link to the current 122 States that are Contracting States to the 1899 and 1907 PCA Conventions.
Regarding the involvement of a non-Contracting State to the dispute, the first instance was an arbitration between Norway and Sweden called The Grisbådarna Case that lasted from March 14, 1908, to October 23, 1909. The subject of the dispute was the maritime boundary between the two countries in the aftermath of the separation of the union of the Swedish-Norwegian Kingdom in 1905. Prior to the dissolution of the union, the Swedish-Norwegian Kingdom became a Contracting State to the 1899 PCA Convention on September 4, 1900. However, after the dissolution, Sweden became a Contracting State to the 1907 PCA Convention on January 26, 1910, and Norway became a Contracting State to the 1907 PCA Convention on November 18, 1910. Both countries were non-Contracting States during the arbitration, and, therefore, were allowed access to the jurisdiction of the PCA under article 47.
The second instance was a dispute between Russia and Turkey, called the Russian Claim for Interest on Indemnities case, that lasted from July 22, 1910, to November 11, 1912. While Russia became a Contracting State to the 1907 PCA Convention on January 26, 1910, Turkey was and continues to be a non-Contracting State.
The third instance was a dispute between the French High Commission to the States of Levant under Mandate (Syria and Lebanon) and the Egyptian Government over Egypt’s refusal to have the French Company Radio Orient in Egypt to receive any telegrams. The proceedings lasted from November 11, 1938, to April 2, 1940. Although France became a Contracting State to the 1907 PCA Convention on December 6, 1919, Egypt did not become a Contracting State until November 4, 1968.
The fourth instance was a dispute between France and Greece regarding the administration of light houses. The proceedings lasted from July 15, 1931, to July 24, 1956. Although France became a Contracting State to the 1907 PCA Convention on December 6, 1910, Greece was and continues to be a non-Contracting State.
The fifth instance was in 1997 in a dispute between Italy and Costa Rica regarding a dispute over a loan agreement between the two countries. The proceeding lasted from September 11, 1997, to June 26, 1998. While Italy is a non-Contracting State to the 1907 PCA Convention, Costa Rica did not become a Contracting State until after the arbitration on July 20, 1999.
In 1928, a precedence was set for the PCA to allow a dispute between a “private entity” and a State. In this case, there was a dispute centered on a contract between China and Radio Corporation of America—Radio Corporation of America v. China. The proceeding lasted from November 10, 1928, to April 13, 1935. The jurisdiction of the PCA was invoked by China, that became a Contracting State on January 26, 1910, according to article 47 because it involved a “special Board of Arbitration” that was not established by the PCA.
While China was the first Contracting State to have a dispute with a “private entity” that came under the jurisdiction of the PCA in 1928, the Larsen case was the first instance that the PCA had jurisdiction over a dispute between a non-Contracting State—the Hawaiian Kingdom and a “private entity”—Larsen in 1999.
The Royal Commission of Inquiry has just published its latest memorandum on why all 193 Member States of the United Nations recognizes the continuity of the Hawaiian Kingdom and the Council of Regency as its government.
It has been 24 years since the arbitral proceedings at the Permanent Court of Arbitration (“PCA”) were initiated on 8 November 1999 in Larsen v. Hawaiian Kingdom. Before the arbitral tribunal was established on 9 June 2000, the PCA Secretary General recognized the continued existence of the Hawaiian Kingdom as a non-Contracting State to the 1907 Hague Convention, I, for the Pacific Settlement of International Disputes (“PCA Convention”). The PCA Secretary General also recognized the Council of Regency as its government. The Council of Regency was not claiming to be a new State but rather it claimed the legal personality of the continued existence of the Hawaiian Kingdom since the nineteenth century.
One of the four sources of international law is customary international law, which is a general practice by an international actor and accompanied by opinio juris. Opinio juris takes place when acts or omissions by States occur following a belief that these States are obligated as a matter of law to take action or refrain from acting in a particular way. According to the International Court of Justice, for a rule of customary international law to exist, there needs to be “two conditions [that] must be fulfilled” where there is a “‘settled practice’ together with opinio juris,” where the practice is accepted as law by States. This acceptance can be achieved by the silence or omission of the concerned States regarding the practice. In the Nicaragua case, the International Court of Justice explained:
[F]or a new customary rule to be formed, not only must the acts concerned “amount to a settled practice,” but they must be accompanied by opinio juris sive neccessitatis. Either the States taking such action or other States in a position to react to it, must behave so that their conduct is evidence of a belief that the practice is rendered obligatory by the existence of a rule of law requiring it. The need for such belief […] the subjective element, is implicit in the very notion of opinio juris sive neccessitatis.
The relevant rule of customary international law, which is applicable to the Hawaiian Kingdom, is the presumption of continuity of the State despite the military overthrow of its government. Because international law provides for the presumption of the continuity of the State despite the overthrow of its government by another State, the burden of proof shifts as to what must be proven. According to Judge Crawford, 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,” and belligerent occupation “does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” Addressing the presumption of the German State’s continued existence despite the military overthrow of the Nazi government during the Second World War, Professor Brownlie explains:
Thus, after the defeat of Nazi Germany in the Second World War the four major Allied powers assumed supreme power in Germany. The legal competence of the German state [its independence and sovereignty] did not, however, disappear. What occurred is akin to legal representation or agency of necessity. The German state continued to exist, and, indeed, the legal basis of the occupation depended on its continued existence.
Therefore, “[i]f one were to speak about a presumption of continuity,” explains Professor Craven, “one would suppose that an obligation would lie upon the party opposing that continuity to establish the facts substantiating its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by reference to a valid demonstration of legal title, or sovereignty, on the part of the United States, absent of which the presumption remains.” Evidence of “a valid demonstration of legal title, or sovereignty, on the part of the United States” would be an international treaty, particularly a peace treaty, whereby the Hawaiian Kingdom would have ceded its territory and sovereignty to the United States. Examples of foreign States ceding sovereign territory to the United States by a peace treaty include the 1848 Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico and the 1898 Treaty of Peace between the United States of America and the Kingdom of Spain. There is no treaty of peace where the Hawaiian Kingdom ceded its sovereignty and territory to the United States.
This practice or action taken by the PCA Secretary General was uncontested by all 122 Contracting States to the PCA Convention. This serves as evidence of their acceptance of the continuity of Hawaiian Statehood. The acceptance by the 122 States of the PCA’s recognition of continuity, as opposed to discontinuity of the Hawaiian State, established a normative character of opinio juris supporting the existence of the rule of customary international law sanctioning the presumption of continuity of a State, despite the military overthrow of its government. As the International Court of Justice explains, the behavior of these States is such “that their conduct is evidence of a belief that the practice is rendered obligatory by the existence of a rule of law requiring it,” as regards the international legal rule of the presumption of State continuity despite the persistence of a status of military occupation. The significance of the Larsen case under international law cannot be underestimated.
Since the Larsen case, the Hawaiian Kingdom’s Council of Regency took deliberate and incremental steps, under international law, to assure that all Member States of the United Nations would recognize the Hawaiian Kingdom’s continued existence as an independent State despite the prolonged occupation by the United States. This memorandum looks at those steps that eventually got all 193 Members States of the United Nations to acknowledge, under international law, the continuity of the Hawaiian Kingdom as an independent State since the nineteenth century, and the Council of Regency as its government, being the successor to Queen Lili‘uokalani’s administration.
