National Lawyers Guild Annual Convention (2020): The Law of Occupation – Hawai‘i, Iraq, Afghanistan and Palestine

Join the NLG International Committee’s CLE program on Monday, Sept. 21, 2020, as part of the NLG Convention!

The four-hour CLE will take place at 9 am Pacific/12 pm Eastern time. To participate in the CLE, you must register for the NLG Convention. You can attend all Convention events as part of your registration – just follow the directions to create your schedule!

Register online: https://nlg.org/convention/

Please note, the NLG Convention is open to members and non-members! Sliding scale registration is available, with registration for the entire, all-digital convention beginning at $25 for NLG members and $50 for non-members. If you need a fee waiver in order to attend the CLE or the Convention as a whole, please contact registration@nlg.org to request a fee waiver or reduction.

Four CLE credits are available for this program, with presentations on humanitarian and human rights law and the U.S. occupations of Hawai’i, Afghanistan and Iraq, and Israel’s occupation of Palestine.  (CLE Credit will be given through the State Bar of CA. After the convention, the NLG will be emailing out attendance verification forms to all attendees.)

On January 17, 1893, the Hawaiian Kingdom was invaded and its government overthrown by the United States empire, beginning a 126-year occupation and unlawful annexation of the Pacific nation. On October 7, 2001, the United States invaded the Islamic Republic of Afghanistan, overthrew its government, and began a 19-year occupation of that Middle Eastern nation. Less than two years later on March 20, 2003, under the pretext that the Republic of Iraq had failed to abandon its weapons of mass destruction, the United States led the invasion, overthrow and continuing occupation of Iraq. The Israeli occupation of Palestine, continuing since 1947 and marked by the Nakba in 1948 when more than 700,000 Palestinians were forceably expelled from their homes and lands, has evolved, with full political and economic support of the U.S., into a belligerent expansion and occupation of territory of Palestine, Jordan, and Syria.

International humanitarian law, also known as the law of war or armed conflict, is the legal framework applicable to situations of armed conflict and occupation. An esteemed panel of international law experts will discuss and examine the application of these rules of law to illegal wars and occupations involving the United States. The panel will discuss the law of occupation which governs the relationship between the occupying power and those subject to belligerent occupation as well as the interplay between humanitarian law and international human rights law. The panel will also cover the legal mechanisms and remedies available to occupied peoples and nations, including Hawaii, Afghanistan, Iraq, and Palestine, to challenge continuing occupation and violations of humanitarian and human rights.

Speakers:

Valentina Azarova, Ph.D. is an international legal academic and practitioner, who teaches and writes on foreign territorial control and the law of third state responsibility.  She is Visiting Academic at the University of Manchester International Law Centre (England) and Associate Editor of the Oxford Reports on International Human Rights Law and United Nations Treaty Bodies. Dr. Azarova is legal advisor to the Global Legal Action Network and has over a decade of experience documenting and engaging in legal actions and advocacy to challenge processes of structural violence of armed conflict and occupation with a focus on third party complicity.  She has worked with and regularly advises UN bodies and fact-finding missions, states and non-governmental organizations.  She is the author of numerous articles on humanitarian law including that law of prolonged belligerent occupations and Israel’s occupation of Palestine.  She co-founded the Human Rights and International law program at Al-Quds Bard College (Palestine) and has held positions at Birzeit University (Ramallah), and in Lebanon, Budapest, and Istanbul.  She received her Ph.D. from the National University of Ireland’s Irish Centre for Human Rights.

Marjorie Cohn is professor emerita at the Thomas Jefferson School of Law (San Diego) and a former president of the National Lawyers Guild. Professor Cohn has written extensively on war and humanitarian law, particularly on torture and targeted killings. She is the author of numerous law review articles and five books. In 2010, Professor Cohn debated the legality of the war in Afghanistan at the prestigious Oxford Union. A lifelong peace activist, Professor Cohn has provided expert testimony on the law of war and is the recipient of 2008 Peace Scholar of the Year Award from the Peace and Justice Studies Association among other awards for her work. She received her J.D. from the Santa Clara University School of Law.

Federico Lenzerini, Ph.D., is an associate professor of public international law and international human rights law at the University of Siena (Italy), a professor in the intercultural human rights program of the St. Thomas University School of Law (Miami). He is a UNESCO consultant and has served as a Rapporteur on the Rights of Indigenous Peoples. He is the author or editor of over one hundred academic articles and seven books. He received his Doctor of Law degree from the University of Siena and his Ph.D. degree in international law from the University of Bari (Italy).

Keanu Sai, Ph.D. is the Chairman of the Council of Regency and Acting Minister of the Interior of the provisional government of the Hawaiian Kingdom.  Dr. Sai served as Agent for the Hawaiian Kingdom at the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom.  He is the editor of the recent book, Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom.  Dr. Sai received his Ph.D. and M.A. degrees in political science specializing in international relations and public law from the University of Hawai’i where he also teaches. Dr. Sai co-chairs the Hawaiian Kingdom Subcommittee of the International Committee of the NLG.

Legal Opinion Affirms Authority of the Council of Regency Under International Law

In light of the severity of the mandate of the Royal Commission of Inquiry, established by the Hawaiian Council of Regency on April 17 2019, to investigate war crimes and human rights violations committed within the territorial jurisdiction of the Hawaiian Kingdom, the “authority” of the Council of Regency to appoint the Royal Commission is fundamental and, therefore, necessary to address within the rules of international humanitarian law, which is a component of international law. As the United States Supreme Court in The Paquete Habana, 175 U.S. 677, 700 (1900), explained:

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and, as evidence of these, to the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.

According to Article 38(1) of the Statute of the International Court of Justice, “the teachings of the most highly qualified publicists of the various nations, [are] subsidiary means for the determination of rules of law.” Furthermore,  §103(2)(c), Restatement Third—Foreign Relations Law of the United States, recognizes that “writings of scholars” are a source of international law in determining, in this case, whether the Council of Regency has been established in conformity with the rules of international humanitarian law. The writing of scholars, “whether a rule has become international law,” are not prescriptive but rather descriptive “of what the law really is.”

As head of the Royal Commission, Dr. Keanu Sai provided a narrative of the authority of the Council of Regency in its recent publication Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom (p. 18-23), a process that was unprecedented, for purposes of explanation and understanding, but it may not be considered authoritative as to whether it meets the rules of international law. Therefore, in order to satisfy this requirement and to remove any questions as to the authority of the Council of Regency, Federico Lenzerini, Ph.D., a professor of international law from the University of Siena, Italy, was requested, by letter dated May 11, 2020, to provide a legal opinion on the following:

First, does the Regency have the authority to represent the Hawaiian Kingdom as a State that has been under a belligerent occupation by the United States of America since 17 January 1893?

Second, assuming the Regency does have the authority, what effect would its proclamations have on the civilian population of the Hawaiian Islands under international humanitarian law, to include its proclamation recognizing the State of Hawai‘i and its Counties as the administration of the occupying State on 3 June 2019?

Third, can you provide comment on the working relationship between the Regency and the administration of the occupying State under international humanitarian law?

On May 24, 2020, Professor Lenzerini completed his legal opinion. His opinion begins by stating:

In order to ascertain whether the Regency has the authority to represent the Hawaiian Kingdom as a State, it is preliminarily necessary to ascertain whether the Hawaiian Kingdom can actually be considered a State under international law. To this purpose, two issues need to be investigated, i.e.: a) whether the Hawaiian Kingdom was a State at the time when it was militarily occupied by the United States of America, on 17 January 1893; b) in the event that the solution to the first issue would be positive, whether the continuous occupation of Hawai’i by the United States, from 1893 to present times, has led the Hawaiian Kingdom to be extinguished as an independent State and, consequently, as a subject of international law.

After addressing the historical record and citing the Permanent Court of Arbitration, he concluded, “[i]t is therefore unquestionable that in the 1890s the Hawaiian Kingdom was an independent State and, consequently, a subject of international law. This presupposed that its territorial sovereignty and internal affairs could not be legitimately violated by other States.”

After concluding the Hawaiian Kingdom did exist as a subject of international law, Professor Lenzerini stated, “it is now necessary to determine whether the continuous occupation of Hawai‘i by the United States from 1893 to present times has led the Hawaiian Kingdom to be extinguished as an independent State and, consequently, as a subject of international law.” He addressed this issue “by means of a careful assessment carried out through ‘having regard inter alia to the lapse of time since the annexation [by the United States], subsequent political, constitutional and international developments, and relevant changes in international law since the 1890s.’”

Aside from all speculative arguments, Professor Lenzerini concludes, “the argument which appears to overcome all the others is that a long-lasting and well-established rule of international law exists establishing that military occupation, irrespective of the length of its duration, cannot produce the effect of extinguishing the sovereignty and statehood of the occupied State.” On this subject, he provides an English translation of a statement made by the Swiss arbitrator Eugène Borel in the 1925 Ottoman Public Debt case:

Whatever are the effects of the occupation of a territory by the enemy before the re-establishment of peace, it is certain that such an occupation alone cannot legally determine the transfer of sovereignty […] The occupation, by one of the belligerents, of […] the territory of the other belligerent is nothing but a pure fact. It is a state of things essentially provisional, which does not legally substitute the authority of the invading belligerent to that of the invaded belligerent.

Professor Lenzerini also cites renowned jurist Oppenheim who stated that “[t]he only form in which a cession [of sovereignty] can be effected is an agreement embodied in a treaty between the ceding and the acquiring State. Such treaty may be the outcome of peaceable negotiations or of war.” Without a treaty with the Hawaiian Kingdom ceding its territory to the United States, he concludes that, “according to a plain and correct interpretation of the relevant legal rules, the Hawaiian Kingdom cannot be considered, by virtue of the prolonged US occupation, as extinguished as an independent State and a subject of international law, despite the long and effective exercise of the attributes of government by the United States over Hawaiian territory.” Therefore, the Hawaiian Kingdom “has been under uninterrupted belligerent occupation by the United States of America, from 17 January 1893 up to the moment of this writing.”

After confirming the continuity of the Hawaiian Kingdom, Professor Lenzerini reviewed the process by which the Council of Regency was formed, he further concludes “on the basis of the doctrine of necessity,…the Council of Regency possesses the constitutional authority to temporarily exercise the Royal powers of the Hawaiian Kingdom.” He further concludes “that the Regency actually has the authority to represent the Hawaiian Kingdom as a State, which has been under a belligerent occupation by the United States of America since 17 January 1893, both at the domestic and international level.” In international proceedings at the Permanent Court of Arbitration from 1999-2001, the Council of Regency did represent the Hawaiian Kingdom in Larsen v. Hawaiian Kingdom, and the Dr. Sai served as the Hawaiian Kingdom’s agent and head of its legal team.

In its capacity as representing the Hawaiian Kingdom, Professor Lenzerini concludes that “the Council of Regency is exactly in the same position of a government of a State under military occupation, and is vested with the rights and powers recognized to governments of occupied States pursuant to international humanitarian law.” Therefore, “the ousted government being the entity which represents the ‘legitimate government’ of the occupied territory…may ‘attempt to influence life in the occupied area out of concern for its nationals, to undermine the occupant’s authority, or both. One way to accomplish such goals is to legislate for the occupied population.’”

Regarding legislation by governments of occupied States, Professor Lenzerini cites the Swiss Federal Tribunal which held that “[e]nactments by the [exiled government] are constitutionally laws of the [country] and applied [from the beginning] to the territory occupied […] even though they could not be effectively implemented until the liberation.” He explains that “[a]though this position was taken with specific regard to exiled governments, and the Council of Regency was not established in exile but in situ, the conclusion, to the extent that it is considered valid, would not substantially change as regards the Council of Regency itself.” Hence,

under international humanitarian law, the proclamations of the Council of Regency are not divested of effects as regards the civilian population of the Hawaiian Islands. In fact, considering these proclamations as included in the concept of “legislation”…they might even, if the concrete circumstances of the case so allow, apply retroactively at the end of the occupation, on the condition that the legislative acts in point do not “disregard the rights and expectations of the occupied population.” It is therefore necessary that the occupied government refrains “from using the national law as a vehicle to undermine public order and civil life in the occupied area.”

When the legislative function is exercised by the Council of Regency, through its proclamations, it “is subjected to the condition of not undermining the rights and interests of the civilian population,” and therefore “may be considered applicable to local people, unless such applicability is explicitly refuted by the occupying authority.” “In this regard,” states Professor Lenzerini, “it is reasonable to assume that the occupying power should not deny the applicability of the…proclamations when they do not undermine, or significantly interfere with the exercise of, its authority.”

Addressing the June 3, 2019 proclamation of the Council of Regency recognizing the State of Hawai‘i and the Counties as the administration of the Occupying State, Professor Lenzerini states, “this Proclamation pursues the clear purpose of ensuring the protection of the Hawaiian territory and the people residing therein against the prejudicial effects which may arise from the occupation.” He explains that “it represents a legislative act aimed at furthering the interests of the civilian population through ensuring the correct administration of their rights and of the land. As a consequence, it has the nature of an act that is equivalent, in its rationale and purpose (although not in its precise subject), to a piece of legislation concerning matters of personal status of the local population, requiring the occupant to give effect to it.” He, therefore, concludes that “the proclamations of the Council of Regency—including the Proclamation recognizing the State of Hawai‘i and its Counties as the administration of the occupying State on 3 June 2019—have on the civilian population the effect of acts of domestic legislation aimed at protecting their rights and prerogatives, which should be, to the extent possible, respected and implemented by the occupying power.”

In his commentary on the working relationship between the Regency and the administration of the occupying State, Professor Lenzerini establishes that the law of occupation “allows for authority to be shared by the Occupying Power and the occupied government, provided the former continues to bear the ultimate and overall responsibility for the occupied territory.” By implementing the legislation of the Council of Regency, “the occupying power would better comply with its obligation, existing under international humanitarian law and human rights law, to guarantee and protect the human rights of the local population. It follows that the occupying power has a duty—if not a proper legal obligation—to cooperate with the [Council of Regency] to better realize the rights and interest of the civilian population, and, more in general, to guarantee the correct administration of the occupied territory.” Professor Lenzerini concludes:

[T]he working relationship between the Regency and the administration of the occupying State should have the form of a cooperative relationship aimed at guaranteeing the realization of the rights and interests of the civilian population and the correct administration of the occupied territory, provided that there are no objective obstacles for the occupying power to cooperate and that, in any event, the “supreme” decision-making power belongs to the occupying power itself. This conclusion is consistent with the position of the latter as “administrator” of the Hawaiian territory, as stated in the Council of Regency’s Proclamation recognizing the State of Hawai‘i and its Counties as the administration of the occupying State of June 3, 2019 and presupposed by the pertinent rules of international humanitarian law.

This cooperative relationship, however, is “premised on both the Council of Regency and the State of Hawai‘i and its Counties [to] ensure [their] compliance with international humanitarian law.” Compliance with the law of occupation requires the State of Hawai‘i to transform itself into a government recognized under international humanitarian law. United States practice during occupations requires the establishment of a Military government, which “is the form of administration by which an occupying power exercises governmental authority over occupied territory. The necessity for such government arises from the failure or inability of the legitimate government to exercise its functions on account of the military occupation (U.S. Army Field Manual 27-10, para. 362).” The establishment of Military government is not limited to the United States military, but also applies to a proxy of the occupying power that is in effective control of Hawaiian territory such as the State of Hawai‘i and its Counties. United States practice recognizes that an occupying power “has the duty of establishing [a Military government] when the government of such territory is absent or unable to function properly (U.S. Army and Navy Manual of Civil Affairs Military Government, Field Manual 27-5, p. 4).”

Furthermore, “[i]t is immaterial whether the government over an [occupied State’s] territory consists in a military or civil or mixed administration. Its character is the same and the source of its authority is the same. It is a government imposed by force, and the legality of its acts is determined by the law of war (FM 27-10, para. 368).” And “restrictions placed upon the authority of a belligerent government cannot be avoided by a system of using a puppet government, central or local, to carry out acts which would be unlawful if performed by the occupant. Acts induced or compelled by the occupant are nonetheless its acts (FM 27-10, para. 366).”

In the current state of things, the State of Hawai‘i is not a Military government but rather a “puppet government” or proxy of the United States that continues to commit the war crime of usurpation of sovereignty by unlawfully imposing or applying “legislative or administrative measures of the occupying power going beyond those required by what is necessary for military purposes of the occupation (Royal Commission of Inquiry, p. 155-57, 167).” The volitional element, or criminal intent, of usurpation of sovereignty, according to Professor William Schabas, is that the “perpetrator was aware of factual circumstances that established the existence of the armed conflict and subsequent occupation (RCI, p. 167).” There is no statute of limitation for war crimes but it is customary for individuals to be prosecuted for the commission of war crimes up to 80 years after the alleged war crime was committed given the life expectancy of individuals (RCI, p. 155).

In 2012, member States of the United Nations committed themselves to “ensuring that impunity is not tolerated for genocide, war crimes, crimes against humanity and for violations of international humanitarian law and gross violations of human rights law, and that such violations are properly investigated and appropriately sanctioned, including by bringing the perpetrators of any crimes to justice, through national mechanisms or, where appropriate, regional or international mechanisms, in accordance with international law.”

According to the applicable rules of international law, as provided in the legal opinion of Professor Lenzerini, the Council of Regency, first, does have the lawful authority to represent the Hawaiian Kingdom as a State that has been under a belligerent occupation by the United States since January 17, 1893; second, its proclamations do have legal effects on the civilian population of the Hawaiian Islands, to include its proclamation recognizing the State of Hawai‘i and its Counties as the administration of the occupying State on June 3, 2019; and, third, international humanitarian law does provide for a cooperative relationship between the Regency and the administration of the occupying State—the State of Hawai‘i and its Counties. Furthermore, the mandate of the Royal Commission, which was established by “legislation” of the Council of Regency, is also confirmed by the legal opinion and the applicable rules of international law.

First Publication of the Royal Commission of Inquiry

In response to the prolonged occupation of the Hawaiian Kingdom by the United States since 1893, and the commission of war crimes and human rights violations that continue to take place with impunity, the Royal Commission of Inquiry was established by the Council of Regency on April 17, 2019. The Council of Regency represented the Hawaiian Kingdom at the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom, PCA case no. 1999-01, from 1999-2001. The Royal Commission’s mandate is 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.”

Dr. David Keanu Sai was appointed as Head of the Royal Commission and he has commissioned recognized experts in various fields of international law who are the authors of chapters 3, 4 and 5 of this publication. These experts include Professor Matthew Craven, University of London, SOAS; Professor William Schabas, Middlesex University London; and Professor Federico Lenzerini, University of Siena.

Its first 378 page publication, Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations in the Hawaiian Kingdom, provides information on the Royal Commission of Inquiry, Hawaiian Constitutional Governance, the United States Belligerent Occupation of the Hawaiian Kingdom, the Continuity of the Hawaiian Kingdom as a State, Elements of War Crimes committed in the Hawaiian Kingdom, and Human Rights violations and Self-determination. The Royal Commission will provide periodic reports of its investigation of war crimes committed by individual(s) that meet the constituent elements of mens rea and actus reus, and human rights violations.

There is no statute of limitation for war crimes but it is customary for individual(s) to be prosecuted for the commission of war crimes up to 80 years after the alleged war crime was committed given the life expectancy of individuals. As a matter of customary international law, States are under an obligation to prosecute individuals for the commission of war crimes committed outside of its territory or to extradite them for prosecution by other States or international courts should they enter their territory.

**The book is free of charge and authorization is given, in accordance with its copyright under Hawaiian law, to print in soft-cover or hard-cover so long as the content of the book is not altered or edited.

Middlesex University London to Host Dr. Keanu Sai’s Presentation on Hawai‘i’s Occupation and War Crimes

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:

National Holiday: Restoration Day

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.

UH’s Lease from State of Hawai‘i for the Summit of Mauna Kea is Invalid

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.”[1] 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.”[2] 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.”[3]

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.”[4] 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.[5]

The joint resolution is ipso facto null and void.[6]

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.[7] 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.[8]

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.”[9] 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.[10]

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.”[11] 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.”[12]

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.”[13] 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.”[14]

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.”[15] 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.”[16] 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.”[17] 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.’”[18] 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.”[19]

It has been erroneously assumed that the US Congress vested the State of Hawai‘i with lawful authority in the 1959 Statehood Act[20] 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.[21]

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.”[22] 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.”[23]

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.


[1] 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.

[2] Id., p. 454.

[3] 107 Stat. 1510.

[4] L. Oppenheim, International Law, vol. 1, second edition, 286 (1912).

[5] 31 Cong. Rec. 6635 (1898).

[6] 33 Cong. Rec. 2391 (1900).

[7] 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).

[8] Id., p. 252.

[9] Id.

[10] In Re Conservation District Use Application for TMT, SCOT-17-0000777, Opinion, State of Hawai‘i Supreme Court (Oct. 30, 2018), p. 46.

[11] Black’s Law, 6th ed. (1990), p. 1452.

[12] Peter J. Smith, “New Legal Fictions,” 95 The Georgetown Law Journal 1435, 1437 (2007).

[13] Id.

[14] Id., p. 1440.

[15] Treaty of Guadalup Hidalgo, 9 Stat. 926 (1848).

[16] Constitution of the Republic of Hawai‘i, Roster Legislatures of Hawaii, 1841-1918 (1918) p. 198.

[17] Smith, “New Legal Fictions,” p. 1439.

[18] In Re Conservation District Use Application for TMT, SCOT-17-0000777, Opinion, State of Hawai‘i Supreme Court (Oct. 30, 2018), p. 46.

[19] United States v. Louisiana et al., 363 U.S. 1, 68 (1960).

[20] 73 Stat. 4.

[21] United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936).

[22] The Appollon, 22 U.S. (9 Wheat.) 362 (1824).

[23] United States v. Belmont, 301 U.S. 324, 332 (1936).