The United States’ Prolonged Occupation of Hawai‘i: War Crimes and Human Rights Violations
Date and Time: Tuesday, 15 October 2019 17:30-19:00 BST
Location: Middlesex University The College Building, 2nd Floor, C219-220 The Burroughs London NW4 4BT United Kingdom
Registration: The event is free and open to the public as well as faculty, staff and students of Middlesex University London. Click here to Register
About this Event: From a British Protectorate in 1794 to an Independent State in 1843, the Hawaiian Kingdom’s government was illegally overthrown by U.S. forces in 1893. U.S. President Cleveland, after conducting a presidential investigation into the overthrow, notified the Congress that the Hawaiian government was overthrown by an “act of war” and that the U.S. was responsible. Annexationists in the Congress thwarted Cleveland’s commitment, by exchange of notes with Queen Lili‘uokalani, to restore the Hawaiian government and Hawai‘i was unilaterally annexed in 1898 during the Spanish-American War after Cleveland left office in order to secure the islands as a military outpost. Today there are 118 U.S. military sites in the islands, headquarters for the U.S. Indo-Pacific Unified Military Command, and is currently targeted for nuclear strike by North Korea, China, and Russia.
This legal and political history of Hawai‘i has been kept from the international community until the Larsen v. Hawaiian Kingdom arbitral proceedings were initiated in 1999 at the Permanent Court of Arbitration, The Hague, Netherlands. At the core of the dispute were the unlawful imposition of U.S. laws, which led to grave breaches of the Fourth Geneva Convention by the U.S. against Lance Larsen, a Hawaiian subject, and whether the Hawaiian Kingdom, by its Council of Regency, was liable for the unlawful imposition of U.S. laws in the territory of an occupied State.
This talk by Dr. Keanu Sai, who served as Agent for the Hawaiian Kingdom in the Larsen case, will provide a historical and legal context of the current situation in Hawai‘i and the mandate of the Royal Commission of Inquiry to investigate war crimes and human rights violations taking place in Hawai‘i. Dr. Sai encourages attendees to view beforehand “The acting Council of Regency: Exposing the American Occupation of the Hawaiian Kingdom” at:
Today is July 31st which is a national holiday in the Hawaiian Kingdom called “Restoration day,” (La Ho‘iho‘i) and it is directly linked to another holiday observed on November 28th called “Independence day” (La Kuoko‘a). Here is a brief history of these two celebrated holidays.
In the summer of 1842, Kamehameha III moved forward to secure the position of the Hawaiian Kingdom as a recognized independent state under international law. He sought the formal recognition of Hawaiian independence from the three naval powers of the world at the time—Great Britain, France, and the United States. To accomplish this, Kamehameha III commissioned three envoys, Timoteo Ha‘alilio, William Richards, who at the time was still an American Citizen, and Sir George Simpson, a British subject. Of all three powers, it was the British that had a legal claim over the Hawaiian Islands through cession by Kamehameha I, but for political reasons the British could not openly exert its claim over the other two naval powers. Due to the islands prime economic and strategic location in the middle of the north Pacific, the political interest of all three powers was to ensure that none would have a greater interest than the other. This caused Kamehameha III “considerable embarrassment in managing his foreign relations, and…awakened the very strong desire that his Kingdom shall be formally acknowledged by the civilized nations of the world as a sovereign and independent State.”
While the envoys were on their diplomatic mission, a British Naval ship, HBMS Carysfort, under the command of Lord Paulet, entered Honolulu harbor on February 10, 1843, making outrageous demands on the Hawaiian government. Basing his actions on complaints made to him in letters from the British Consul, Richard Charlton, who was absent from the kingdom at the time, Paulet eventually seized control of the Hawaiian government on February 25, 1843, after threatening to level Honolulu with cannon fire. Kamehameha III was forced to surrender the kingdom, but did so under written protest and pending the outcome of the mission of his diplomats in Europe. News of Paulet’s action reached Admiral Richard Thomas of the British Admiralty, and he sailed from the Chilean port of Valparaiso and arrived in the islands on July 25, 1843. After a meeting with Kamehameha III, Admiral Thomas determined that Charlton’s complaints did not warrant a British takeover and ordered the restoration of the Hawaiian government, which took place in a grand ceremony on July 31, 1843. At a thanksgiving service after the ceremony, Kamehameha III proclaimed before a large crowd, ua mau ke ea o ka ‘aina i ka pono (the life of the land is perpetuated in righteousness). The King’s statement became the national motto.
The envoys eventually succeeded in getting formal international recognition of the Hawaiian Islands “as a sovereign and independent State.” Great Britain and France formally recognized Hawaiian sovereignty on November 28, 1843 by joint proclamation at the Court of London, and the United States followed on July 6, 1844 by a letter of Secretary of State John C. Calhoun. The Hawaiian Islands became the first Polynesian nation to be recognized as an independent and sovereign State.
The ceremony that took place on July 31 occurred at a place we know today as “Thomas Square” park, which honors Admiral Thomas, and the roads that run along Thomas Square today are “Beretania,” which is Hawaiian for “Britain,” and “Victoria,” in honor of Queen Victoria who was the reigning British Monarch at the time the restoration of the government and recognition of Hawaiian independence took place.
The following is one of the topics covered by Dr. Sai in his letter of July 9, 2019. Maui County Council member Tamara Paltin requested of Dr. Sai his insights into the proposed construction of the Thirty-Meter Telescope. Dr. Sai’s letter is an attachment to Council member Paltin’s letter to University of Hawai‘i President David Lassner on July 12, 2019.
Invalidity of General Lease No. S-4191
Under General Lease No. S-4191 dated June 21, 1968, the Board of Land and Natural Resources of the State of Hawai‘i, as lessor, issued a 65-year lease to the University of Hawai‘i with a commencement date of January 1, 1968 and a termination date of December 31, 2033. The lease is comprised of 11,215.554 acres, more or less, being a portion of Government lands of the ahupua‘a of Ka‘ohe situated at Hamakua, Island of Hawai‘i identified under Tax May Key: 3rd/4.4.15:09.
The State of Hawai‘i claims to have acquired title under Section 5(b) of the 1959 Hawai‘i Admissions Act, Public Law 86-3 (73 Stat. 4), whereby “the United States grants to the State of Hawaii, effective upon its admission into the Union, the United States’ title to all public lands and other public property within the boundaries of the State of Hawaii, title to which is held by the United States immediately prior to its admission into the Union.” The United States derives its title from the 1898 Joint Resolution of Annexation (30 Stat. 750), which states “Whereas the Government of the Republic of Hawaii having, in due form, signified its consent, in the manner provided by its constitution…to cede and transfer to the United States the absolute fee and ownership of all public, Government, or Crown lands.”
The Republic of Hawai‘i proclaimed itself on July 3, 1894, by a convention comprised of appointed members of the Provisional Government and eighteen “elected” delegates. The Provisional Government proclaimed itself on January 17, 1893 and claimed to be the successor of the Hawaiian Kingdom. The Hawaiian Kingdom’s title derives from the 1848 Act Relating to the Lands of His Majesty The King and of the Government, whereby the ahupua‘a of Ka‘ohe is “Made over to the Chiefs and People, by our Sovereign Lord the King, and we do hereby declare those lands to be set apart as the lands of the Hawaiian Government, subject always to the rights of tenants.”
According to President Grover Cleveland, in his message to the Congress after investigating the illegal overthrow of the Hawaiian Kingdom government that took place on January 17, 1893, the Provisional Government “was neither a government de facto nor de jure.” He did not consider it a government. The President also concluded that “the provisional government owes its existence to an armed invasion by the United States.” Being a creature, or creation, of the US, it could not claim to be the lawful successor of the Hawaiian Kingdom government with vested title to the ahupua‘a of Ka‘ohe. As the successor to the Provisional Government, the Republic of Hawai‘i, as it self-declared successor, could not take any better title than the Provisional Government and hence did not have title to Ka‘ohe. The U.S. Congress in the 1993 Apology Resolution noted that the Republic of Hawai‘i was “self-declared.”
The United States claims to have acquired title to Ka‘ohe, by cession, from the Republic of Hawai‘i under the 1898 Joint Resolution of Annexation. International law recognizes that the “only form in which a cession can be effected is an agreement embodied in a treaty between the ceding and the acquiring State.” The Joint Resolution of Annexation is not “an agreement embodied in a treaty.” It is a U.S. municipal law from the Congress merely asserting that cession took place. The situation is not unlike a neighbor holding a family meeting and claiming that they have agreed that your house is now their house.
In a debate on the Senate floor on July 4, 1898, Senator William Allen stated:
The Constitution and the statutes are territorial in their operation; that is, they can not have any binding force or operation beyond the territorial limits of the government in which they are promulgated. In other words, the Constitution and statutes can not reach across the territorial boundaries of the United States into the territorial domain of another government and affect that government or persons or property therein.
The joint resolution is ipso facto null and void.
In 1988, the U.S. Department of Justice, Office of Legal Counsel (“OLC”) issued a legal opinion on the lawfulness of the annexation of Hawai‘i by a joint resolution. In its opinion, it cited constitutional scholar Westel Willoughby:
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 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.
The OLC 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.” The United States cannot produce any evidence of a conveyance of the ahupua‘a of Ka‘ohe from a grantor, vested with the title. All it can produce is a joint resolution of Congress. This is not a conveyance from a foreign State ceding territory.
Instead of providing evidence of a conveyance of territory, i.e. treaty of cession, the State of Hawai‘i Supreme Court in its October 30, 2018 majority decision In Re Conservation District Use Application for TMT, SCOT-17-0000777, quoted from a book titled Who Owns the Crown Lands of Hawai‘i written by Professor Jon Van Dyke.
The U.S. Supreme Court gave tacit recognition to the legitimacy of the annexations of Texas and Hawaiʻi by joint resolution, when it said in De Lima v. Bidwell, 182 U.S. 1, 196 (1901), that “territory thus acquired [by conquest or treaty] is acquired as absolutely as if the annexation were made, as in the case of Texas and Hawaii, by an act of Congress.” See also Texas v. White, 74 U.S. (7 Wall.) 700 (1868), stating that Texas had been properly admitted as a state in the United States.
It is unclear what Professor Van Dyke meant when he stated that the U.S. Supreme Court “gave tacit recognition to the legitimacy of the annexation of Texas and Hawai‘i by joint resolution,” because tacit, by definition, is to be “understood without being openly expressed or stated.” Furthermore, this statement is twice irrelevant: first, the Court as a third party to any cession of foreign territory has no standing to make such a conclusion as to what occurred between the ceding and receiving States; and, second, its opinion is a fabrication or what American jurisprudence calls a legal fiction. Legal fictions treat “as true a factual assertion that plainly was false, generally as a means to avoid changing a legal rule that required a particular factual predicate for its application.”
According to Professor Smith, a “judge deploys a new legal fiction when he relies in crafting a legal rule on a factual premise that is false or inaccurate.” These “new legal fictions often serve a legitimating function, and judges may preserve them—even in the face of evidence that they are false—if their abandonment would have delegitimating consequences.”
The proposition that Texas and Hawai‘i were both annexed by joint resolutions of Congress is clearly false. In the case of Texas, Congress consented to the admission of Texas as a State by joint resolution on March 1, 1845 with the following proviso, “Said State to be formed, subject to the adjustment by this government of all questions of boundary that may arise with other governments.” This condition was referring to Mexico because as Texas was comprised of insurgents who were fighting for their independence, Mexico still retained sovereignty and title to the land. In its follow up joint resolution on December 29, 1845 that admitted Texas as a State of the Union, it did state that the Congress consented “that the territory properly included within, and rightfully belonging to, the Republic of Texas.” These actions taken by the Congress is what sparked the Mexican-American War in 1846.
Congress’ statement of “rightfully belonging” is an opinion and the resolution mentions no boundaries. The transfer of title to the territory, which included the territory comprising Texas, came three years later on February 2, 1848 in a treaty of peace that ended the Mexican-American War.
Under Article V of the treaty, the new boundary line between the United States and Mexico was to be drawn. “The boundary line between the two republics shall commence in the Gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande, otherwise called Rio Bravo del Norte.” Rio Brava del Norte is the southern tip of Texas. If Texas was indeed annexed in 1845 by a joint resolution with its territory intact, there was no reason for the treaty to specifically include the territory of Texas. If it were true that Texas territory was ceded in 1845, Article V of the treaty would have started the boundary line just west of the Texas city of El Paso, which is its western border, and not from the Gulf of Mexico at its southern border. The truth is that the territory of Texas was not annexed by Congress in 1845 but was ceded by Mexico in 1848. The Rio Grande river is the southern border for the State of Texas.
With regard to the so-called annexation of Hawai‘i in 1898 by Congress, there is no treaty ceding Hawaiian territory as in the case of Texas. Like the Texas resolution, Congress stated,
Whereas the Government of the Republic of Hawaii having, in due form, signified its consent, in the manner provided by its constitution to ceded absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies, and also to cede and transfer to the United States the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining…
The reference to consent by its constitution is specifically referring to Article 32, which states, the “President, with the approval of the Cabinet, is hereby expressly authorized and empowered to make a Treaty of Political or Commercial Union between the Republic of Hawaii and the United States of America, subject to the ratification of the Senate.” There is no treaty between the so-called Republic of Hawai‘i and the United States. Furthermore, a constitutional provision is not an instrument of conveyance as a treaty would be. So without a treaty from the Hawaiian Kingdom government as the ceding State vested with the sovereignty and title to government lands, which includes the ahupua‘a of Ka‘ohe, there was no change in the ownership of the government lands.
Furthermore, Hawaiians of the day knew there was no treaty as evidenced in the Maui News newspaper published October 20, 1900. The Editor wrote,
Thomas Clark, a candidate for Territorial senator from Maui holds that it was an unconstitutional proceeding on the part of the United States to annex the Islands without a treaty, and that as a matter of fact, the Island[s] are not annexed, and cannot be, and that if the democrats come into power they will show the thing up in its true light and demonstrate that that the Islands are de facto independent at the present time.
The legal fiction that Texas and Hawai‘i were annexed by a joint resolution of the Congress is just a patently false when measured “against the results of existing empirical research.” For the State of Hawai‘i Supreme Court to restate, and embrace, this falsifiable legal fiction is simply a trick that allows it to fabricate its own false and falsifiable fiction regarding the State of Hawai‘i. In its TMT decision the Court, in conflict with overwhelming evidence, stated, “[W]e reaffirm that ‘[w]hatever may be said regarding the lawfulness’ of its origins, ‘the State of Hawai‘i…is now a lawful government.’” For the State of Hawai‘i to be a “lawful government” it must be vested with lawful authority absent of which it is not lawful. The State of Hawai‘i Supreme Court, being a branch of the State of Hawai‘i itself, cannot declare it “is now a lawful government” without making reference to some intervening factor that vested the State of Hawai‘i with lawful authority.
When addressing the lawful authority and sovereignty of the United States of America, the United States Supreme Court specifically referred to a particular and significant intervening factor. It stated that as “a result of the separation from Great Britain by the Colonies, acting as a unit, the powers of external sovereignty passed from the Crown not to the Colonies severally, but to the Colonies in their collective and corporate capacity as the United States of America.” The Court was referring to “the Treaty of Paris of September 3, 1783, by which Great Britain recognized the independence of the United States.”
It has been erroneously assumed that the US Congress vested the State of Hawai‘i with lawful authority in the 1959 Statehood Act in an exercise of the constitutional authority of Congress to admit new States into the Federal union under Article IV, section 3, clause 1. There is no provision in the US constitution for the admission of a state to the union that is on territory not owned by the US. So before the US Congress can admit a new State to the US the US must “own” the territory. According to the United States Supreme Court:
Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens…, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.
Since the Hawaiian Islands were never annexed by the United States via treaty, Congressional acts, which are municipal laws, may only operate on the territory of the United States. The United States Supreme Court is relatively clear on this point and has stated that the “municipal laws of one nation do not extend in their operation beyond its own territory except as regards its own citizens.” In another decision, the United States Supreme Court reiterated, that “our Constitution, laws and policies have no extraterritorial operation unless in respect of our own citizens.”
Under international law, the United States is an occupying power in the Hawaiian Islands and as such the occupying Power is obligated, under Article 43 of the 1907 Hague Convention, IV, and Article 64 of the 1949 Geneva Convention, IV, to administer Hawaiian Kingdom laws. In his communication to the members of the Judiciary of the State of Hawai‘i of February 25, 2018, the United Nations Independent Expert, Dr. Alfred deZayas, reiterated this obligation under international law.
I have come to understand that the lawful political status of the Hawaiian Islands is that of a sovereign nation-state in continuity; but a nation-state that is under a strange form of occupation by the United States resulting from an illegal military occupation and fraudulent annexation. As such, international laws (the Hague and Geneva Conventions) require that governance and legal matters within the occupied territory of the Hawaiian Islands must be administered by the application of the laws of the occupied state (in this case, the Hawaiian Kingdom), not the domestic laws of the occupier (the United States) (Enclosure “6”).
The United States never acquired any kind of title to Ka‘ohe and, since one can only convey what one has, it could not convey what it did not have to the State of Hawai‘i under Section 5(b) of the 1959 Admissions Act. Thus the State of Hawai‘i was never lawfully vested with any title to the ahupua‘a of Ka‘ohe, and therefore its so-called general lease no. S-4191 to the University of Hawai‘i dated June 21, 1968 is defective. Under Hawaiian Kingdom law, the ahupua‘a of Ka‘ohe is government land under the management of the Ministry of the Interior and not the State of Hawai‘i Board of Land and Natural Resources. Consequently, all 10 subleases from the University of Hawai‘i that extend to December 31, 2033 are defective as well, which include:
- National Aeronautics and Space Administration dated November 29, 1974;
- Canada-France-Hawai‘i Telescope Corporation dated December 18, 1975;
- Science Research Council dated January 21, 1976;
- California Institute of Technology dated December 20, 1983;
- Science and Engineering Research Council dated February 10, 1984;
- California Institute of Technology dated December 30, 1985;
- Associated Universities, Inc., dated September 28, 1990;
- National Astronomical Observatory of Japan dated June 5, 1992;
- National Science Foundation dated September 26, 1994; and
- Smithsonian Institution dated September 28, 1995.
As such, the University of Hawai‘i’s sublease to TMT International Observatory, LLC, is also defective. Therefore, the University of Hawai‘i cannot sublease what it does not have to TMT International Observatory LLC.
 President Cleveland’s Message to the Congress (Dec. 18, 1893), p. 453, available online at https://hawaiiankingdom.org/pdf/Cleveland’s_Message_(12.18.1893).pdf.
 Id., p. 454.
 107 Stat. 1510.
 L. Oppenheim, International Law, vol. 1, second edition, 286 (1912).
 31 Cong. Rec. 6635 (1898).
 33 Cong. Rec. 2391 (1900).
 Douglas Kmiec, Department of Justice, “Legal Issues Raised by Proposed Presidential Proclamation to Extend the Territorial Sea,” 12 Opinions of the Office of Legal Counsel 238 (1988).
 Id., p. 252.
 In Re Conservation District Use Application for TMT, SCOT-17-0000777, Opinion, State of Hawai‘i Supreme Court (Oct. 30, 2018), p. 46.
 Black’s Law, 6th ed. (1990), p. 1452.
 Peter J. Smith, “New Legal Fictions,” 95 The Georgetown Law Journal 1435, 1437 (2007).
 Id., p. 1440.
 Treaty of Guadalup Hidalgo, 9 Stat. 926 (1848).
 Constitution of the Republic of Hawai‘i, Roster Legislatures of Hawaii, 1841-1918 (1918) p. 198.
 Smith, “New Legal Fictions,” p. 1439.
 In Re Conservation District Use Application for TMT, SCOT-17-0000777, Opinion, State of Hawai‘i Supreme Court (Oct. 30, 2018), p. 46.
 United States v. Louisiana et al., 363 U.S. 1, 68 (1960).
 73 Stat. 4.
 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936).
 The Appollon, 22 U.S. (9 Wheat.) 362 (1824).
 United States v. Belmont, 301 U.S. 324, 332 (1936).
Investigating the Illegal U.S. Military Occupation of the Hawaiian Islands
From Integrative Media Co-operative (IMC):
IMC would like to continue documenting up and coming events and actions regarding the U.S. military occupation of the Hawaiian Kingdom. IMC relies on public donations. To donate visit IMC’s Indiegogo crowdfunding campaign: Speaking Truth to Power – Documentary. Or contact IMC directly at email@example.com.
Please subscribe to IMC’s YouTube channel, Integrative Media Co-operative, to stay updated on future projects. There are many short videos coming soon regarding this topic.
Most importantly, sharing this video with friends and family brings a greater awareness to this ongoing and evolving situation.
Status of the Hawaiian Kingdom under International Law
In 2001, the Permanent Court of Arbitration’s arbitral tribunal, in Larsen v. Hawaiian Kingdom, declared “in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties (paragraph 7.4).” The terms State and Country are synonymous.
As an independent State, the Hawaiian Kingdom entered into extensive treaty relations with a variety of States establishing diplomatic relations and trade agreements. The Hawaiian Kingdom entered into three treaties with the United States: 1849 Treaty of Friendship, Commerce and Navigation; 1875 Commercial Treaty of Reciprocity; and 1883 Convention Concerning the Exchange of Money Orders. In 1893 there were only 44 independent and sovereign States, which included the Hawaiian Kingdom, as compared to 197 today.
On January 1, 1882, it joined the Universal Postal Union. Founded in 1874, the UPU was a forerunner of the United Nations as an organization of member States. Today the UPU is presently a specialized agency of the United Nations.
By 1893, the Hawaiian Kingdom maintained over ninety Legations and Consulates throughout the world. In the United States of America, the Hawaiian Kingdom manned a diplomatic post called a legation in Washington, D.C., which served in the same function as an embassy today, and consulates in the cities of New York, San Francisco, Philadelphia, San Diego, Boston, Portland, Port Townsend and Seattle. The United States manned a legation in Honolulu, and consulates in the cities of Honolulu, Hilo, Kahului and Mahukona.
“Traditional international law was based upon a rigid distinction between the state of peace and the state of war (p. 45),” says Judge Greenwood in his article “Scope of Application of Humanitarian Law” in The Handbook of the International Law of Military Occupations (2nd ed., 2008), “Countries were either in a state of peace or a state of war; there was no intermediate state (Id.).” This is also reflected by the fact that the renowned jurist of international law, Professor Lassa Oppenheim, separated his treatise on International Law into two volumes, Vol. I—Peace, and Vol. II—War and Neutrality.
Presidential Investigation of the Overthrow of the Hawaiian Government
On January 16, 1893, United States troops invaded the Hawaiian Kingdom without just cause, which led to a conditional surrender by the Hawaiian Kingdom’s executive monarch, Her Majesty Queen Lili‘uokalani, the following day. Her conditional surrender read:
“I, Liliuokalani, by the grace of God and under the constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the constitutional Government of the Hawaiian Kingdom by certain persons claiming to have established a provisional government of and for this Kingdom.
That I yield to the superior force of the United States of America, whose minister plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be landed at Honolulu and declared that he would support the said provisional government.
Now, to avoid any collision of armed forces and perhaps the loss of life, I do, under this protest, and impelled by said force, yield my authority until such time as the Government of the United States shall, upon the facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.”
In response to the Queen’s conditional surrender of her authority, President Grover Cleveland initiated an investigation on March 11, 1893, with the appointment of Special Commissioner James Blount whose duty was to “investigate and fully report to the President all the facts [he] can learn respecting the condition of affairs in the Hawaiian Islands, the causes of the revolution by which the Queen’s Government was overthrown, the sentiment of the people toward existing authority, and, in general, all that can fully enlighten the President touching the subjects of [his] mission.” After arriving in the Hawaiian Islands, he began his investigation on April 1, and by July 17, the fact-finding investigation was complete with a final report. Secretary of State Walter Gresham was receiving periodic reports from Special Commissioner Blount and was preparing a final report to the President.
On October 18, 1893, Secretary of State Gresham reported to the President, the “Provisional Government was established by the action of the American minister and the presence of the troops landed from the Boston, and its continued existence is due to the belief of the Hawaiians that if they made an effort to overthrow it, they would encounter the armed forces of the United States.” He further stated that the “Government of Hawaii surrendered its authority under a threat of war, until such time only as the Government of the United States, upon the facts being presented to it, should reinstate the constitutional sovereign, and the Provisional Government was created ‘to exist until terms of union with the United States of America have been negotiated and agreed upon (p. 462).’” Gresham then concluded, “Should not the great wrong done to a feeble but independent State by an abuse of the authority of the United States be undone by restoring the legitimate government? Anything short of that will not, I respectfully submit, satisfy the demands of justice (p. 463).”
Investigation Concludes United States Committed Acts of War against the Hawaiian Kingdom
One month later, on December 18, 1893, the President proclaimed by manifesto, in a message to the United States Congress, the circumstances for committing acts of war against the Hawaiian Kingdom that transformed a state of peace to a state of war on January 16, 1893. Black’s Law Dictionary defines a war manifesto as a “formal declaration, promulgated…by the executive authority of a state or nation, proclaiming its reasons and motives for…war.” And according to Professor Oppenheim in his seminal publication, International Law, vol. 2 (1906), a “war manifesto may…follow…the actual commencement of war through a hostile act of force (p. 104).”
Addressing the unauthorized landing of United States troops in the capital city of the Hawaiian Kingdom, President Cleveland stated, “on the 16th day of January, 1893, between four and five o’clock in the afternoon, a detachment of marines from the United States steamer Boston, with two pieces of artillery, landed at Honolulu. The men, upwards of 160 in all, were supplied with double cartridge belts filled with ammunition and with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies (p. 451).”
President Cleveland ascertained that this “military demonstration upon the soil of Honolulu was of itself an act of war, unless made either with the consent of the Government of Hawaii or for the bona fide purpose of protecting the imperiled lives and property of citizens of the United States. But there is no pretense of any such consent on the part of the Government of the Queen, which at that time was undisputed and was both the de facto and the de jure government. In point of fact the existing government instead of requesting the presence of an armed force protested against it (p. 451).” He then stated, “a candid and thorough examination of the facts will force the conviction that the provisional government owes its existence to an armed invasion by the United States (p. 454).”
“War begins,” says Professor Wright in his article “Changes in the Conception of War,” American Journal of International Law, vol. 18 (1924), “when any state of the world manifests its intention to make war by some overt act, which may take the form of an act of war (p. 758).” According to Professor Hall in his book International Law (4th ed., 1895), the “date of the commencement of a war can be perfectly defined by the first act of hostility (p. 391).”
The President also determined that when “our Minister recognized the provisional government the only basis upon which it rested was the fact that the Committee of Safety had in the manner above stated declared it to exist. It was neither a government de facto nor de jure (p. 453).” He unequivocally referred to members of the so-called Provisional Government as insurgents, whereby he stated, and “if the Queen could have dealt with the insurgents alone her course would have been plain and the result unmistakable. But the United States had allied itself with her enemies, had recognized them as the true Government of Hawaii, and had put her and her adherents in the position of opposition against lawful authority. She knew that she could not withstand the power of the United States, but she believed that she might safely trust to its justice.” He then concluded that by “an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown (p. 453).”
“Act of hostility unless it be done in the urgency of self-preservation or by way of reprisals,” according to Hall, “is in itself a full declaration of intent [to wage war] (p. 391).” According to Professor Wright in his article “When does War Exist,” American Journal of International Law, vol. 26(2) (1932), “the moment legal war begins…statutes of limitation cease to operate (p. 363).” He also states that war “in the legal sense means a period of time during which the extraordinary laws of war and neutrality have superseded the normal law of peace in the relations of states (Id.).”
Unbeknownst to the President at the time he delivered his message to the Congress, a settlement, through executive mediation, was reached between the Queen and United States Minister Albert Willis in Honolulu. The agreement of restoration, however, was never implemented. Nevertheless, President Cleveland’s manifesto was a political determination under international law of the existence of a state of war, of which there is no treaty of peace. More importantly, the President’s manifesto is paramount and serves as actual notice to all States of the conduct and course of action of the United States. These actions led to the unlawful overthrow of the government of an independent and sovereign State. When the United States commits acts of hostilities, the President, says Associate Justice Sutherland in his book Constitutional Power and World Affairs (1919), “possesses sole authority, and is charged with sole responsibility, and Congress is excluded from any direct interference (p. 75).”
According to Representative Marshall, before later became Chief Justice of the U.S. Supreme Court, in his speech in the House of Representatives in 1800, the “president is the sole organ of the nation in its external relations, and its sole representative with foreign nations. Of consequence, the demand of a foreign nation can only be made of him (Annals of Congress, vol. 10, p. 613).” Professor Wright in his book The Control of American Foreign Relations (1922), goes further and explains that foreign States “have accepted the President’s interpretation of the responsibilities [under international law] as the voice of the nation and the United States has acquiesced (p. 25).”
Despite the unprecedented prolonged nature of the illegal occupation of the Hawaiian Kingdom by the United States, the Hawaiian State, as a subject of international law, is afforded all the protection that international law provides. “Belligerent occupation,” concludes Judge Crawford in his book The Creation of States in International Law (2nd ed., 2006), “does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State (p. 34).” Without a treaty of peace, the laws of war and neutrality would continue to apply.