Meritocracy of the Regency and Command and Control by a Military Government

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.

Children_Salute_1907

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.

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Germanization

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.

Dr. Keanu Sai to Present Update on the status of Hawai‘i under International Law to the Maui County Council on March 6, 2024

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.

The Piercing Effect of International Criminal Culpability upon Individuals that are Outside of the United States

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.

To begin to comply with international humanitarian law and the law of occupation, the decision to be made by February 17, 2024, does not fall upon an “abstract entity” called the United States or the State of Hawai‘i but rather upon Major General Kenneth Hara and the members of the State of Hawai‘i Legislature and the County Councils themselves.

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.

The State of Hawai‘i finds itself at a Crossroads on February 17, 2024

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 Duty to Protect the Population in Hawai‘i from War Crimes Committed by the State of Hawai‘i

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.

A Brief History of International Law and its Application to the Hawaiian Kingdom Today

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.

Customary International Law, the Hawaiian Kingdom and the Permanent Court of Arbitration

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.

Under International Law, all Members of the United Nations recognize the Continuity of the Hawaiian Kingdom’s existence as a Independent State and the Council of Regency as its Government

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.

Polish Journal of Political Science Publishes Book Review of the Royal Commission of Inquiry’s eBook on Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom

Awareness of the American occupation of the Hawaiian Kingdom is spreading in academic circles throughout Europe. In 2022, the Polish Journal of Political Science published a book review by Dr. Anita Budziszewska of the Royal Commission on Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom.

Dr. Budziszewska is a faculty member of Political Science and International Studies at the University of Warsaw. In the years 2011-2020 she served as the coordinator for mobility, exchange and international cooperation at the IIR UW and at the WNPiSM UW. During the years 2016-2020 served as the Plenipotentiary of the Dean of the Faculty of Political Science and International Studies for international cooperation under the Erasmus+ program (European Union).

Dr. Budziszewska was member of the Polish mission to the United Nations during the 43rd session of the United Nations Human Rights Council in Geneva (43rd session of UN HRC). In 2020-2021 external expert of the project Polska360 organized/financed by the Kresy RP. Foundation and the Chancellery of the Prime Minister of Poland. She conducts classes on Elements of Diplomatic Protocol as part of the training organized by the Polish Olympic Committee and the Polish Corporation of Sports Managers. Member of the Organizing Committee of 8th Pan-European Congress of International Relations in Warsaw (2013) co-organized with the European International Studies Association.

Dr. Budziszewska completed scientific and professional internship, e.g. at the Polish Representation to the United Nations Office in Geneva. Study and training stays, among others, at the European Court of Human Rights in Strasbourg, the University of Zurich and the University of Oxford. International speeches, lectures and papers abroad, e.g. in Spain, Italy, Portugal, Greece, Finland, Croatia, Hungary and the UK. Member of the European Research Network on Philanthropy, International Studies Association and European International Studies Association.

Here follows her book review that was published in volume 8, issue 2 of the Polish Journal of Political Science.

The subject of review here is the multi-author publication Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom, edited by Dr. David Keanu Sai, Head of the Hawaiian Royal Commission of Inquiry, published in 2020. The book is divided into three parts, i.e. Part 1 Investigating war crimes and human rights violations committed in the Hawaiian Kingdom; Part 2 The prolonged occupation of the Hawaiian Kingdom; and Part 3 Hawaiian law, treaties with foreign states and international humanitarian law. This final part represents a collection of source documents in such fields as Hawaiian law, but also international-law treaties with foreign states (in fact 18 including the USA)—dating back to the 19th century. A selection of treaties from the sphere of international humanitarian law has also been made and included.

The essence of the publication nevertheless resides in its two first parts, in which the authors offer an in-depth treatment of the complicated long-time relationship between Hawaii and the United States. Nevertheless, the thesis pursued here overall is the straightforward one that Hawaii has been occupied illegally and incorporated into the United States unlawfully, with that occupation continu­ing to the present day and needing to be understood in such terms. The authors also pursue the dif­ficult thread of the story relating to war crimes.

The above main assumption of the book is emphasised from the very beginning of Part 1, which is preceded by the text of the Proclamation Establishing the Royal Commission of Inquiry, recalling that that Commission was established to “ensure a full and thorough investigation into the violations of international humanitarian law and human rights within the territorial jurisdiction of the Hawai­ian Kingdom.”

In fact, the main aim of the above institution as called into being has been to pursue any and all of­fences and violations in the spheres of humanitarian law, human rights and war crimes committed by the Americans in the course of their occupation of Hawaii—which is given to have begun on 17 January 1893.

Presented next is the genesis and history of the Commission’s activity described by its aforementioned Head—Dr. David Keanu Sai. He presents the Commission’s activity in detail, by reference to concrete examples; with this part going on to recreate the entire history of the Hawaiian-US relations, beginning with the first attempt at territorial annexation. This thread of the story is sup­plemented with examples and source texts relating to the recognition of the Hawaiian Kingdom by certain countries (e.g. the UK and France, and taken as evidence of international regard for the in­tegrity of statehood). Particularly noteworthy here is the author’s exceptionally scrupulous analysis of the history of Hawaii and its state sovereignty. No obvious flaws are to be found in the analysis presented.

It is then in the same tone that the author proceeds with an analysis relating to international law, so as to point to the aspects of Hawaii’s illegal occupation by the United States—including an un­precedentedly detailed analysis of the contents of documents, resolutions, mutual agreements and official political speeches, but also reference to other scientific research projects. This very interest­ing strand of the story is followed by Matthew Craven in Chapter 3 on the Continuity of the Hawaiian Kingdom as a State under International Law. Notwithstanding the standpoint on the legality of the occupation or annexation of Hawaii by the United States, the matter of the right to self-determination keeps springing up now and again.

Considerable attention is also paid to the multi-dimensional nature of the plebiscite organised in 1959 (with regard to Hawaii’s incorporation as a state into the United States of America), with the relative lack of transparency of organisation pointed out, along with various breaches and transgres­sions that may have taken place.

In turn, in Chapter 4—on War Crimes Related to the United States’ Belligerent Occupation of the Ha­waiian Kingdom—William Schabas makes attempts to verify the assertion, explaining the term war crimes and referring to the wording of the relevant definition that international law is seen to have generated. The main problem emerging from this concerns lack of up-to-date international provi­sions as regards the above definition. The reader’s attention is also drawn to the incomplete nature of the catalogue of actions or crimes that could have constituted war crimes (in line with the observa­tions of Lemkin).

While offering narration and background, this Chapter’s author actually eschews Hawaiian-US examples. Instead, he brings the discussion around to cases beyond Hawaii, and in so doing also invokes examples from case-law (e.g. of Criminal Courts and Tribunals). While this is a very interesting choice of approach, it would still have been interesting for the valuable introduction to the subject matter to be supplemented by concrete examples relating to Hawaii, and to the events occur­ring there during the period under study.

Chapter 5—on International Human Rights Law and Self-Determination of Peoples Related to the United States’ Occupation of the Hawaiian Kingdom—allows its author Federico Lenzerini to contribute hugely to the analysis of the subject matter, given his consideration of the human rights protection system and its development with a focus on the right to self-determination. The author separates those dimensions of the law in question that do not relate to the Hawaiian Kingdom, as well as those that may have application to the Hawaiian society. Indeed, the process ends with Ap­plicability of the Right to Self-Determination During the American Occupation—a chapter written with exceptional thoroughness, objectivity and synthesis. The author first tells the story on how the human rights protection system came to be formulated (by the 1948 Universal Declaration of Human Rights and the Covenants of 1996, but also by reference to other Conventions). Rightly signalled is the institutional dimension to the protection of human rights, notably the Human Rights Committee founded to protect the rights outlined in the Covenant on Civil and Political Rights. It is of course re­called that the US is not a party to the relevant Protocols, which is preventing US citizens from assert­ing the rights singled out in the 1966 Covenants. Again rightly, attention is also paid to the regional human rights mechanism provided for by the 1969 American Convention on Human Rights, which also lacks the United States as a party.

The focus here is naturally on the right to self-determination, which the author correctly terms the only officially recognised right of a collective nature (if one excludes the rights of tribal peoples). The further part of the chapter looks at the obligations of states when it comes to safeguarding their citizens’ fundamental human rights. The philosophical context underpinning the right to self-determination is considered next (with attention rightly paid first to liberty related aspects and the philosophical standpoints of Locke and Rousseau, along with the story of the formulation of this right’s ideological basis and reference to what is at times a lack of clarity regarding its shape and scope (not least in Hawaii’s case). What is therefore welcome is the wide-ranging commentary of­fered on the dimensions to the above rights that do relate to Hawaiian society as well as those that do not.

In summing up the substantive and conceptual content, it is worth pointing to the somewhat inter­disciplinary nature of the research encompassed. Somewhat simplifying things, this book can first be seen as an in-depth analysis of matters historical (with much space devoted to the roots of the relations between Hawaii and the United States, to the issue of this region’s occupation and the gen­esis of Hawaii’s incorporation into the USA). These aspects have all been discussed with exceptional thoroughness and striking scrupulousness, in line with quotations from many official documents and source texts. This is all pursued deliberately, given the authors’ presumed intention to illustrate the genesis of the whole context underpinning the Hawaiian-US relations, as well as the further context through which Hawaii’s loss of state sovereignty came about. This strand to the story gains excellent illustration thanks to Dr. Keanu Sai.

The second part is obviously international law related and it also has much space devoted to it by the authors. The publication’s core theses gain support in the analysis of many and varied international documents, be these either mutual agreements between Hawaii and the United States or international Conventions, bilateral agreements of other profiles, resolutions, instruments de­veloped under the aegis of the UN or those of a regional nature (though not only concerned with the Americas, as much space is devoted to European solutions, and European law on the protection of human rights in particular). There is also much reference to international case-law and juris­prudence in a broader sense, the aim being to indicate the precedents already arrived at, and to set these against the international situation in which Hawaii finds itself.

However, notwithstanding this publication’s title, the authors here do not seek to “force-feed” readers with their theses regarding Hawaii’s legal status. Rather, by reaching out to a wide range of sources in international law as well as from history, they provide sufficient space for independ­ent reflection and drawing of conclusions. In this regard, it would be interesting if few remarks were devoted to present-day relations between Hawaii and the rest of the USA, with a view to achieving a more-profound illustration of the state of this relationship. However, it might seem from the book’s overall context that this was done deliberately so that the foundations of this unique dispute gain proper presentation. All is then augmented further by Part 3—the collection of agreements and docu­ments considered to sustain the main assumptions of the publication under review. Were I to force myself to point out any failure of the book to meet expectations, I would choose the cultural dimen­sion. There is no way of avoiding an impression—only enhanced by cover-to-cover reading—that this publication is deeply rooted in the Hawaiians’ sense of cultural and historical identity. So it would have been interesting to see the cultural dimension addressed, including through a more in-depth analysis of social awareness. At the very least, I have in mind here Article 27 UDHR, traditionally regarded as the source of the right to culture and the right to participate in cultural life. To be added to that might be Article 15 of the International Covenant on Economic, Social and Cultural Rights, as well as Article 27 of the International Covenant on Civil and Political Rights. While (as Boutros Boutros-Ghali noted in 1970) the right in question initially meant access to high culture, there has since been a long process of change that has seen an anthropological dimension conferred upon both culture and the right thereto. A component under that right is the right to a cultural identity—which would seem to be the key space in the Hawaiian context. The UN and UNESCO have in fact been paying a great deal of attention to this matter, with the key relevant documents being the 2005 Conven­tion on the Protection and Promotion of the Diversity of Cultural Expressions that in general links these issues with the human rights dimension as well as the Recommendation on Participation by the People at Large in Cultural Life and their Contribution to It (1976).

So a deeply-rooted cultural-identity dimension would have offered an interesting complement to the publication’s research material, all the more so as it would presumably reveal the attempts to annihilate that culture (thus striking not merely at statehood, but at national integrity of iden­tity). An interesting approach would then have been to show in details whether and to what extent this is resisted by the USA (e.g. in regard to the upholding of symbols of material and non-material cultural heritage).

However, given the assumption the book is based on—i.e. the focus on state sovereignty (not the right of cultural minorities, but the right of a nation to self-determination), the above “omission” actually takes nothing away from the value of the research presented. However, the aspect of national identity—of which cultural and historical identity is a key component—may represent an impulse for further, more in-depth research.

I regard this publication as an exceptionally valuable one that systematises matters of the legal sta­tus of the Hawaiian Kingdom, taking up the key issues surrounding the often ignored topic of a dif­ficult historical context occurring between Hawaii and the United States. The issue at stake here has been regenerated synthetically, on multiple levels, with a penetrating analysis of the regulations and norms in international law applying to Hawaii – starting from potential occupied-territory status, and moving through to multi-dimensional issues relating to both war crimes and human rights. This is one of the few books – if not the only one – to describe its subject matter so comprehensively and completely. I therefore see this work as being of exceptional value and considerable scientific impor­tance. It may serve not only as an academic source, but also a professional source of knowledge for both practicing lawyers and historians dealing with the matter on hand. The ambition of those who sought to take up this difficult topic can only be commended.

National Holiday (November 28) – Independence Day

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

**************************************

Haalilio

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

George Simpson

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

William Richards

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

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

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

Daniel Webster

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

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

Aberdeen

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

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

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

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

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

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

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

John C Calhoun

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

Hawaiian Journal of Law and Politics publishes Volume no. 5

From the Editor of the Hawaiian Journal of Law and Politics, Professor Kalawai‘a Moore:

Since the attempted coup of 1887, history written on Hawaiʻi has been a highly political endeavor of a specific nature. The insurgents from the time of 1887 through the time of the United States coup de main of 1893 and beyond began writing a defensive justification narrative for their illegal actions as historical narratives. One among many of the distortions of historical truth has included a re-describing of the role of American missionary advisors in the earlier part of the 19th century as the driving force and main actors behind the development and running of a constitutional government of a nation-state. The motivations for the crafting of a history against which  enormous primary evidence exists to the contrary was the aim at winning public and material support from the United States, and elsewhere to secure and maintain control over Hawaiʻi. Losing control over Hawaiʻi for the insurgents could have led to prosecution for treason under the law an offense that was punishable by death. Exemplifying this false narrative, Lorrin Thurston, one of these insurgents, wrote:

Hawaiian Christianization, civilization, commerce, education, and development are the direct product of American effort. Hawaii is in every element and quality which enters into the composition of a modern civilized community, a child of America.

As Hawaiians began to enter the battle of historical narratives in the 1970s, 80s, and 90s, certain facts of history put forward in American hegemonic writings were latently taken up as foundational truths in the writings and teachings by Hawaiians themselves. One example of a false truth from the insurgents that was carried forward in Hawaiian written work was the false fact of the annexation of Hawaiʻi as a fait acompli. As a fact, the “annexation” of Hawaiʻi has been proven wrong in newer scholarship of the past 25 years. The so called annexation of Hawaiʻi is no longer an accepted fact by most Hawaiian scholars. Another example of a historical fallacy that still circulates today and still has several Hawaiian proponents, is the idea above that the early missionaries were the driving force behind the development and running of the Hawaiian Kingdom’s constitutional government. Professor Jon Osorio provides an example of a Hawaiian indigenist thesis based on this idea. He wrote:

Accordingly, the very formation of a national entity in 1840 under the rudiments of Euro-American constitutions victimized the Native Hawaiians, consigning them to unfamiliar and inferior roles as wage laborers. Caucasian newcomers proceeded to transform the economic and social systems, marginalizing the Native both demographically and symbolically.

Hawaiian indigenist writings about missionary primacy were a part of many theses that argued that the nation-state, law, and governance were western impositions and detrimental to ethnic Hawaiians in line with a thinking that these Hawaiians acquired through theoretical learning with other indigenous peoples. More recent Hawaiian written histories have unearthed primary source materials that show another vantage point that posits missionary involvement came in the middle of an already ongoing process of Hawaiian governmental and nation-state development.

The newer findings show that Hawaiʻi became a unified, centralized state under Kamehameha I with its own organized state structure, adopting features of British styled government long before missionary arrival. Under Kaʻahumanu’s rule, a set of Christian modelled laws were adopted through a dialectical process with missionary advisors, but the Prime Minister was clearly in charge. At the request of King Kamehameha III, Kauikeaouli, the government adopted a secular character. Former missionaries were taken in as advisors and played different roles in the development of Hawaiian governance and were eventually replaced during the reigns of King Kamehameha IV, Alexander Liholiho, and King Kamehameha V, Lota Kapuaiwa, by “Hawaiian chiefs and nonmissionary westerners.” The missionaries were taken on as advisors under Kaʻahumanu and Kauikeaouli, but were not the decision makers, and Hawaiian government was fashioned in a hybrid manner. The Hawaiian Kingdom government was aboriginal Hawaiian controlled and fashioned in a dialectical process based on traditional Hawaiian customs and relationships.

The first set of missionaries while trying to carry out their mission, served at the will of the chiefs. Their ability to stay on the islands was dependent on chiefly permission. The chiefs found the missionaries useful as teachers of new technologies and information. Some of these missionaries like William Richards, and Gerrit Judd left the mission and served the high chiefs full time as advisors on foreign relations and government. This first generation of missionaries spoke of themselves and were spoken of by others as  loyal servants to the chiefs and the Hawaiian Kingdom. Sai notes this distinction between this first generation of missionaries and their descendants in his article “Synergy Through Convergence: The Hawaiian State and Congregationalism,” quoting the famous author Nordhoff, who was working as a correspondent for the newspaper Hawaii Holomua,

They, the fathers, stood by the natives against all foreign aggression. The elder Judd, a very able man, gave time, ability and his own means to the restoration of Hawaiian independence when it was attacked by an English admiral; his degenerate son, the present chief justice [Albert F. Judd] was part of the conspiracy which upset the government he had sworn to support and, himself a native of Hawaii, is active in the movement to destroy the State which his father gave a long life to establish defend and maintained.

This fifth volume of the Hawaiian Journal of Law and Politics contains a number of articles that engage further the agency and independence of aboriginal Hawaiian chiefly rulers, and their abilities to both stay ahead of any political intrigue, and to employ missionary knowledge of literacy and teaching to their advantage. We also see further the distinction that can be made between the first generation of missionaries and their loyalty to the Crown and government, versus some of their descendants, who formed an ideological position of white cultural supremacy, undertaking a treasonous course of action. This later generation showed a completely different attitude and approach to the Hawaiian Crown. Sai’s work further shows how aboriginal Hawaiian leadership from the Hawaiian Patriotic League clearly saw this distinction between the generations referring in testimony to many of the insurgent second and third generationers as the “faithless sons of missionaries and local politicians angered by continous political defeat.”

In the first article by Dr. Susan Corley “Liholiho’s Kauaʻi Coup,” we get an opportunity to understand better the character of King Kamehameha II, Liholiho, as ruler. Corley details an attempt by Hiram Bingham, a missionary of the first mission, to strengthen his position in the islands by enlisting the aid of Kaumualiʻi, King of the Island of Kaua‘i, suggesting the chief fund a mission to Tahiti. Liholiho intercedes using the occassion to outmaneuver both Bingham and Kaumualiʻi, taking full personal control of the island of Kauaʻi, and making it clear to the missionaries that he “held power and control over their ability to continue” their mission. Corley describes Liholihoʻs maneuvering and leadership as a matter of “guile where his father would have used force.”

In “‘He Kaula Uila’: Hawaiian Educational Policy in the 19th Century ‘Ke Aʻo Palapala ma Nā Aloaliʻi a me Nā Kuaʻāina,’” Brandi Jean Nalani Balutski starts with a more well-known excerpt from a speech made by Kauikeaouli upon ascension to the throne “he aupuni palapala koʻu” (mine is a kingdom of learning). Balutski details the chiefly adoption of the technology of literacy and education as formal policy of the early Hawaiian Kingdom and an ethos that education be taken up by all class levels. Balutski details the life journeys and roles of five aboriginal Hawaiian men who returned to Hawai‘i with these first missionaries acting as intermediaries between them and the ruling chiefs. Balutski shows how Thomas Hopu  became the personal teachers for the high chiefs and their children. Others like George Humehume, son of Kaumuali‘i, became advisors for his father and their inner circle of chiefs who saw possible advantages in adopting literacy as a political tool. Despite initial concerns about the missionaries from the United States, their value in teaching literacy and the chiefs understanding of the value of literacy as a technology in dealing with various outsiders, paved the way for the acceptance of the American missionaries because of the benefit that literacy could hold “to control the encounter with foreigners, to favor their interests and those of their lineages, to express their understanding of the world, and to shape that world to their ends.”

In “Synergy Through Convergence: The Hawaiian State and Congregationalism,” Dr. Keanu Sai details further the distinction between the role of early American missionaries in support of the Hawaiian Kingdom government, and the later generations of “faithless sons of missionaries.” He starts by examining the rhetoric in history and political writings that has built a “myth of missionary control,” and contrasts these fabrications through use of the writings by aboriginal Hawaiians and supporters from the late 19th century, including a direct response by Kauikeaouli himself refuting a question of missionary control, and affirming his use of missionaries as teachers of literacy and translators between the government and foreign representatives. Sai shows a link between the congregationalism of the American missionaries and the influence of governmental reform in the Hawaiian Kingdom calling it a synergy whereby the “forces of both coalesced and each saw the other as beneficial to their own goals.” Sai illustrates the benefits to both sides during this time period to show further the false narratives that have been put forth stating that the “continuation of Americanism [was] initiated by the missionaries since 1820.”

In “Apartheid Hawai’i: California Colony at Wahiawā,” Dr. Ronald Williams Jr. continues his work showing the rise of white supremacist thought and action in Hawaiʻi starting with the break in local protestantism from congregationalism to a philosophy of “minority, White rule over both church and state” in the 1860s and 70s. Proponents of this change fomented an outright opposition to King Kalākaua during his reign, and supported the complete seizure of the government through U.S. facilitation in 1893, and then the full establishment of white oligarchic rule into the Territorial era in the 1900’s. Williams documents the efforts to establish a California Colony of white families in Wahiawā starting in 1899. This effort was made possible through earlier legislation called the 1895 Land Act introduced by Sanford Dole utilizing the newly confiscated Crown Lands for the express purpose of promoting “the immigration of permanent settlers of a character suitable for the building up of our population.” Williams documents the push by the government of the illegal Republic to settle white families on 1,350 acres of land before the “annexation” of the islands was completed. He further details the ideological drive behind the Dole government’s push to establish and support this community, which unashamedly sought to build a community of social and educational institutions based on the idea of racial segregation expressed as an “American way” as exemplified by the American South. The Wahiawā colony ultimately fails because of the greed of some of its backers and the success of pineapple farms like the one run by James Dole, which priced other small farmers out of the market.

In “The Decline of Hawaiian Language Common Schools During the Hawaiian Kingdom From 1864 to 1893: A Statistical Analysis,” Dr. Larson Ng walks through a quantitative data study of Hawaiian Kingdom government records on Hawaiian language common schools, English language schools, and independent schools looking at funding, attendance, and population statistics. Ng walks us through a brief history of the school system in the Hawaiian Kingdom and some of the theories in circulation that have tried to link causation of the decrease in aborginal attendence at Hawaiian language common schools to ideologies of “settler colonialism.” Ng’s regression analysis shows that the most important statistical factor in the decline of Hawaiian language common school attendance was the decline in the aboriginal Hawaiian population. He noted that funding disparities were a matter of aboriginal Hawaiian governmental prioritization, rather than an ideological imposition by outsiders.

In my article I provide an analysis of Dr. Kehaulani Kauanui’s book Paradoxes of Hawaiian Sovereignty: Land, Sex, and the Colonial Politics of State Nationalism, in which I call Kauanui’s work a remonstrance against Hawaiians turning toward the Hawaiian Kingdom, and a lament over the waning of Hawaiian indigeneity. I provide a critical analysis that Kauanui lacks any “deep evidentiary work on the matters” she covers, “leaving key source perspectives and facts out in some arguments.” I provide critical comment on her continued misuse and mentoring of the term “colonization” and her focus on the “state” instead of “government” as showing a lack of political and legal disciplinary awareness, and when taken with her attempt to reinvent the term “indigenous” for use in the Hawaiian context shows a kind of paradigm paralysis. I provide additional comment that Kauanui adds no insight of value in her examination of the Mahele in her book. She simply represents old, debunked theories and facts, adding only a new form of rhetorical approach which in my words, states that, “Almost every page in this chapter by Kauanui is inaccurate, and all of her imported theories irrelevant.” On matters of gender and sexuality, Kauanui starts from that earlier mentioned perspective that the missionaries controlled and were in charge of the lives, government, and state creation of the chiefs in Hawai’i, which I disprove. I agree that there were changes that were made in laws on marriage, coverture, and sex that need to be examined and cautioned against. I add that Kauanui is really engaged in a fight over the gender and sexual politics of today seeking to head off losses or maintain rights through closing off the Hawaiian Kingdom as political possibility. Toward building her case, I show that Kauanui left out key information and misarranged key source quotes that would otherwise show subversion, and ambivalence toward conservative laws on gender and coverture. Kauanui does not reveal that coverture was fought, slowly dismantled, and then repealed. And does not reveal that her own sources show women as “jural subjects” and in one case did not show how her source stated that they could not agree that women’s status diminished with government reform. I also caution against obscuring source material to argue politics, and I point out that, “It can be said that there were heteropatriarchal forces at work in the Hawaiian Kingdom, but one cannot say that the Hawaiian Kingdom is a heteropatriarchal government, [society], nor state.”

The last two sections of this volume of the Hawaiian Journal of Law and Politics include two documents recently published by the Council of Regency as the Occupied Government of the Hawaiian Kingdom. One entitled “Operational Plan for Transitioning the State of Hawai’i into a Military Government,” and the second, “Operational Plan for Transitioning the Military Government into the Hawaiian Kingdom Government.” Both documents were written by the acting Government, whose officers consist of Dr. David Keanu Sai, Kauʻi P. Sai-Dudoit, and Dexter Keʻeaumoku Kaʻiama, Esq.

In the “Operational Plan for Transitioning the State of Hawai’i into a Military Government,” the acting Government lays out in detail the historical and legal justifications for the actions needed to move from an illegal State of Hawaiʻi government to military government under international humanitarian law and the law of occupation.

A detailed history is provided from state recognition of the Hawaiian Kingdom in 1843 through the U.S. invasion and overthrow of the Hawaiian Kingdom government, to the U.S. military occupation of the Hawaiian Kingdom. The Plan lays out “essential” and “implied” tasks including the setting up of a temporary administrator of the laws of the occupied state, the establishment of a military government, the proclamation of provisional laws, the disbanding of the State of Hawaiʻi Legislature and County Councils, setting up a temporary administrator of public buildings, real estate, forests, and agricultural estates that belong to the occupied state, and tasks that protect the institutions of the occupied state.

In the “Operational Plan for Transitioning the Military Government into the Hawaiian Kingdom Government,” the acting Government lays out plans for the withdrawal of U.S. armed forces, dealing with the Hawaiian state territory, reparations, and the seizing of property. The plan lays out details on the transition from a military government to the government of the Hawaiian Kingdom; the creation and ratification of a Treaty of Peace, the conducting of a national census, the convening of a Legisltive Assembly, who will then, based on the Hawaiian Kingdom constitution, begin to put together the rest of the Hawaiian Kingdom government. These two plans are the only plans of action for the restoration of the Hawaiian Kingdom government. The historical importance of including these documents as part of the Hawaiian Journal of Law and Politics can not be understated and it was the work of the Council of Regency that was able to get the Permanent Court of Arbitration to acknowledge the continued existence of the Hawaiian Kingdom as an independent State that generated the impetus in the formation of the Hawaiian Society of Law and Politics at the University of Hawai‘i at Mānoa and the establishment of the Hawaiian Journal of Law and Politics.

We close these Editor’s notes with a mahalo (gratitude) to the authors for their work examining topics of interest and importance, and we look forward to more academic work and discussion that persists toward that Kuleana of Scholarship we endeavor to uphold.

The Significance and the Importance of the Two Operational Plans of the Council of Regency

When dealing with a 130-year crisis of a prolonged and illegal American occupation of the Hawaiian Kingdom, planning is a crucial component that informs where we are today and where we want to be tomorrow. An operational plan is informed by due diligence of the situation, which is a gathering of information relevant to the situation at hand and how it got to the current situation. In the military, this is colloquially known as gathering intel before you come up with a battle plan.

Due diligence is “depending on the relative facts of the special case.” It is the assessment of a situation before a decision should be made. When due diligence is done, the person doing it must be mindful of their own biases and assumptions. To gather information through one’s own bias is what is called “confirmation bias” where the gatherer of information only selects information that would confirm his/her own biases. This is also called cherry picking.

In the Hawaiian situation, there is an abundance of assumptions that are false such as the Hawaiian Islands were colonized by the United States in the nineteenth century, and, as a colonized people, Native Hawaiians are an Indigenous People by definition of the United Nations. United Nations defines Indigenous Peoples as tribal nations that exist with an independent State not of their own making. Arriving at this conclusion was done through confirmation bias.

The Council of Regency sought to gather information through the lens of both the laws of the Hawaiian Kingdom and international law that includes international humanitarian law and the law of occupation. It was through this process that revealed that the Hawaiian Kingdom, which existed as an internationally recognized sovereign and independent State continued to exist since November 28, 1843, despite the illegal overthrow of its government by the United States on January 17, 1893. This continued existence stemmed from the international principle of inalienability of sovereignty of a State, and the only way a State can alienate its sovereignty is by its consent through a treaty of cession with the acquiring State. There exists no such treaty, therefore, the Hawaiian State continues to exist.

It was based on this premise that the government was restored as a Council of Regency in 1997 to provisionally represent the Hawaiian State both domestically and abroad. The actions to be taken by the Council of Regency would be in line with its strategic plan that entailed three phases. Phase I—verification of the Hawaiian Kingdom as an independent State and a subject of international law. Phase II—exposure of Hawaiian Statehood within the framework of international law and the laws of occupation as it affects the realm of politics and economics at both the international and domestic levels. Phase III—restoration of the Hawaiian Kingdom as an independent State and a subject of international law. Phase III is when the American occupation comes to an end.

Phase I was achieved when the Permanent Court of Arbitration (PCA), before establishing the arbitration tribunal in Larsen v. Hawaiian Kingdom on June 9, 2000, acknowledged the continued existence of the Hawaiian State, and the Council of Regency as its government. Phase II, exposure of the Hawaiian State, was initiated during oral hearings on December 7, 8 and 11, 2000, at the PCA in The Hague. Phase II continued at the University of Hawai‘i at Mānoa when the Chairman of the Council of Regency, David Keanu Sai, entered the political science graduate program, where he received a master’s degree specializing in international relations and public law in 2004 and a Ph.D. degree in 2008 on the subject of the continuity of Hawaiian Statehood while under an American prolonged belligerent occupation since 1893.

The exposure through academic research also motivated historian Tom Coffman to change the title of his 1998 book from Nation Within: The Story of America’s Annexation of the Nation of Hawai‘i, to Nation Within—The History of the American Occupation of Hawai‘i. Coffman explained the change in his note on the second edition and took a quote from Dr. Sai’s law article A Slippery Path Towards Hawaiian Indigeneity. Coffman wrote:

I am compelled to add that the continued relevance of this book reflects a far-reaching political, moral and intellectual failure of the United States to recognize and deal with the takeover of Hawai‘i. In the book’s subtitle, the word Annexation has been replaced by the word Occupation, referring to America’s occupation of Hawai‘i. Where annexation connotes legality by mutual agreement, the act was not mutual and therefore not legal. Since by definition of international law there was no annexation, we are left then with the word occupation.

In making this change, I have embraced the logical conclusion of my research into the events of 1893 to 1898 in Honolulu and Washington, D.C. I am prompted to take this step by a growing body of historical work by a new generation of Native Hawaiian scholars. Dr. Keanu Sai writes, “The challenge for … the fields of political science, history, and law is to distinguish between the rule of law and the politics of power.” In the history of the Hawai‘i, the might of the United States does not make it right.

It took the Council of Regency just over 20 years to change the conversation from colonization and indigenous peoples rights to military occupation and the rights of Hawaiian subjects under the law of occupation. With the shifting of the historical lens, legal consequences began to emerge especially with the involvement of Professor Matthew Craven from the University of London, SOAS, School of Law, who authored a legal opinion on the Continuity of the Hawaiian Kingdom as a State under international law; Professor William Schabas from Middlesex University London, School of Law, and a renowned expert in international criminal law, who authored a Legal Opinion on War Crimes related to the United States belligerent occupation of the Hawaiian Kingdom; and Professor Federico Lenzerini from the University of Siena, Italy, Department of Political and International Science, who authored Legal Opinion on the authority of the Council of Regency of the Hawaiian Kingdom.

Both the Operational Plans for Transitioning the State of Hawai‘i into a Military Government and Transitioning the Military Government to the Hawaiian Kingdom Government, which will bring the prolonged American occupation to an end, is a culmination of years of research and exposure and is a subset of plans under phase II of the strategic plan. As such we are moving toward the end of phase II and preparing for phase III that will bring the 130-year crisis to an end.

The two operational plans are clear as to where we are, where we need to get to, and the path to get there. The essential tasks and the implied tasks in each of the plans are measurable, and, most importantly, flexible when achieving the tasks. They allow flexibility to adjust to issues unforeseen such as time and allocation of resources. The Council of Regency established a 3-year window for the occupation to come to an end, but it doesn’t prevent unforeseen and extenuating circumstances to adjust the timeline. When the American occupation of Japan began in 1945, it was thought that it would last 3 years. But circumstances extended the occupation an additional 4 years. The same could happen in the Hawaiian situation, but the Council of Regency needed to set an initial timeline of 3 years.

Clarifying Army Regulations and Terms Regarding a Military Government of Hawai‘i

After securing Phase I of the of the Council of Regency’s strategic plan where in 1999 the Permanent Court of Arbitration “verified the Hawaiian Kingdom as independent State and subject of international law,” Phase II was initiated to expose “Hawaiian Statehood within the framework of international law and the laws of occupation as it affects the realm of politics and economics at both the international and domestic levels.” This exposure has brought out many aspects of international law and the law of occupation that many have heard only for the first time.

There are terms such as international humanitarian law, which the military refers to as the law of armed conflict. International law distinguishes between a State and its government. What occurred on January 17, 1893, was that United States troops and a diplomat overthrew the government of the Hawaiian Kingdom. The Hawaiian State was not affected by the overthrow and remained a subject of international law with its rights and duties intact. This type of situation under international humanitarian law is called belligerent occupation where the Occupying State must administer the laws of the Occupied State until a treaty of peace comes into effect.

The only way the United States could have acquired the territory of the Hawaiian Kingdom, called the Hawaiian Islands, is by way of a treaty of peace that cedes Hawaiian territory to the United States. The United States was unable to acquire Hawaiian territory by a treaty of cession because it overthrew the government. A treaty requires the government of a State to cede its territory. Instead, the United States enacted a congressional joint resolution purporting to have annexed the Hawaiian Islands at the height of the Spanish-American War in 1898. Since 1898, the United States has been unlawfully imposing its laws over Hawaiian territory, which is the war crime of usurpation of sovereignty during military occupation.

In the case of Hawai‘i, we are dealing with role of the Adjutant General of the Army and Air National Guard. Under federal and State law, the National Guard can serve two commanders in chief but not at the same time. According to Article II, section 2 of the U.S. Constitution, the President becomes the commander in chief of the National Guard “when called into the actual Service of the United States.” Until that time, the commander in chief of the National Guard is the Governor of the State.

Article V of the State of Hawai‘i Constitution provides that the Governor is the Chief Executive of the State of Hawai‘i. He is also the commander-in-chief of the Army and Air National Guard and appoints the Adjutant General who “shall be the executive head of the department of defense and commanding general of the militia of the State.” Section 121-9 of the Hawai‘i Revised Statutes states, “The adjutant general shall perform such duties as are prescribed by law and such other military duties consistent with the regulations and customs of the armed forces of the United States as required by the governor.” In other words, the Adjutant General operates under two regimes of law, that of the State of Hawai‘i and that of the United States Army.

When the National Guard is called into State active duty, not federal active duty, the Governor is the commander-in-chief and has command and control. Under him is the Adjutant General that has command and control of the forces that have been activated. This is what occurred when certain units of the Army and Air National Guard were activated in 1992 when Hurricane Iniki devastated the island of Kaua‘i. Governor John Waihe‘e was the commander-in-chief and Brigadier General Edward Richardson was the Adjutant General. When the Hawai‘i Army and Air National Guard were called to federal active duty for deployment to Iraq during Second Gulf War in 2005, the commander-in-chief changed from State of Hawai‘i Governor Linda Lingle to President George W. Bush.

These American laws, however, don’t apply in the Hawai‘i situation. Unlike the other 49 Governors of States in the Federal Union their authorities derive from American laws that include both Federal and State laws. Because the State of Hawai‘i is outside of the borders of the United States, and as such is foreign territory, the authority of the State of Hawai‘i to include its Governor is stripped. The reason for this is the authority of the Governor derives from the 1959 Statehood Act, which under international law is a war crime. What allows the State of Hawai‘i to exist, however, is international humanitarian law and the law of occupation. Under these laws, the State of Hawai‘i is a civilian armed force acting for the United States as an occupying State.

The decision to establish a military government in foreign territory is not with the U.S. President as commander-in-chief but rather with the most senior commander of the armed forces in foreign territory that has come under effective control. Article 42 of the 1907 Hague Regulations states, “Territory is considered occupied when it is actually placed under the authority of the hostile army.” The State of Hawai‘i, and not the Federal government, is in effective control of 94% of Hawaiian territory.

According to United States Army Field Manual 27-5—Civil Affairs Military Government, the theater commander over foreign territory to come under military occupation bears full responsibility for establishing a military government. That person is a general officer and designated as military governor and is authorized to delegate his authority and title, in whole or in part, to a subordinate commander.

Section 8 of FM 27-5 states, “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.” Section 3 states that the reasons for establishing a military government “are either military necessity as a right, or as an obligation under international law.” And since military occupation “suspends the operation of the government of the occupied territory, the obligation arises under international law for the occupying force to exercise the functions of civil government looking toward the restoration of maintenance of public order.”

In this situation, it is the State of Hawai‘i Adjutant General that has the responsibility and duty to establish a military government for Hawai‘i under international law and begin to administer Hawaiian Kingdom laws and the provisional laws in accordance with 2014 Proclamation of Provisional Laws by the Council of Regency.

Why the State of Hawai‘i Adjutant General has the Authority and Duty to Establish a Military Government for Hawai‘i

After securing Phase I of the of the Council of Regency’s strategic plan where in 1999 the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom, “verified the Hawaiian Kingdom as independent State and subject of international law,” Phase II was initiated in order to expose “Hawaiian Statehood within the framework of international law and the laws of occupation as it affects the realm of politics and economics at both the international and domestic levels.” This exposure has brought out many aspects of international law and the law of occupation that many have only heard for the first time.

There are terms such as international humanitarian law, which the military throughout the world refers to as the law of armed conflict. The rule that distinguishes between a State and its government. The difference between military occupation of a State and the colonization of territory that is not a State. Adding to this list of new terms and principles include Army doctrine and regulations that apply to military occupation of foreign territory.

In the case of Hawai‘i, we are dealing with role of the Adjutant General of the Army and Air National Guard. Under federal and State law, the National Guard can serve two commanders in chief but not at the same time. According to Article II, section 2 of the U.S. Constitution, the President becomes the commander in chief of the National Guard “when called into the actual Service of the United States.” Until that time, the commander in chief of the National Guard is the Governor of the State.

When the National Guard is called to State active duty, not federal active duty, the Governor is the commander and chief and has command and control. Under him is the Adjutant General that has command and control of the forces that have been activated. This is what occurred when certain units of the Army and Air National Guard were activated in 1992 when Hurricane Iniki devastated the island of Kaua‘i. Governor John Waihe‘e was the commander in chief and Brigadier General Edward Richardson was the Adjutant General.

When units of the Hawai‘i Army and Air National Guard were called to federal active duty for deployment to Iraq during Second Gulf War in 2003, the commander in chief changed from State of Hawai‘i Governor Linda Lingle to President George W. Bush.

As an occupied State, these American laws do not apply in the Hawai‘i situation. The unlawful imposition of these laws constitutes the war crime of usurpation of sovereignty during military occupation. Unlike the other 49 Governors of States in the federal Union, their authorities derive from these American laws that include both federal and State laws.

Because the State of Hawai‘i is outside of the borders of the United States, and as such is foreign territory, the authority of the State of Hawai‘i to include its Governor is stripped. What allows the State of Hawai‘i to exist, however, is international humanitarian law and the law of occupation. Under these laws, the State of Hawai‘i is a civilian armed force acting for the United States as an occupying State, which has effective control of 94% of the territory of the Hawaiian Kingdom. The federal government only has effective control of less that 6% of the territory.

The decision to establish a military government in foreign territory is not with the U.S. President as commander in chief but rather with the most senior commander of the armed forces in foreign territory that has come under effective control by the occupying force. According to section 3 of FM 27-5, Civil Affairs Military Government, the theater commander over the territory to come under military occupation bears full responsibility for establishing a military government.

That person is a general officer and designated as military governor and 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.” So under Army doctrine, it is never the President of the United States to establish a military government but rather the most senior military commander in the occupied territory.

Section 4 of FM 27-5 also states that the reasons for establishing a military government “are either military necessity as a right, or as an obligation under international law.” And since military occupation “suspends the operation of the government of the occupied territory, the obligation arises under international law for the occupying force to exercise the functions of civil government looking toward the restoration of maintenance of public order.”

In this situation, it is the State of Hawai‘i Adjutant General that has the responsibility and duty to establish a military government for Hawai‘i under international law. This is a command decision to be made by the Adjutant General who is the most senior Army commander in the occupied territory of Hawai‘i.