There appears to be some confusion as to who needs to prove that the Hawaiian Kingdom—the 800-pound Gorilla in the room continues to exist as a sovereign and independent State despite its government being unlawfully overthrown on January 17, 1893, by the United States military and occupied for over a century.

As Professor Quincy Wright asserts “international law distinguishes between a government and the state it governs.” Professor Sheldon Cohen also states that the “state must be distinguished from the government. The state, not the government, is the major player, the legal person, in international law.” This raises an important point that the overthrow of the Hawaiian government did not affect, in the least, the continuity of the Hawaiian Kingdom as a State, being a “legal person” under international law. As Professor Ian 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.

Under international law, there exists a legal principle that when a government of an internationally recognized State is overthrown after a military invasion by another State and is occupied, the invaded State is “presumed” to continue to exist. This principle is called the presumption of the continuity of a State.

To presume is a verb that means to suppose or to take for granted “based on evidence.” To assume is to suppose or take for granted “without evidence.” According to Merriam-Webster e-dictionary, “‘Presume’ is the word to use if you’re making an informed guess based on reasonable evidence. If you’re making a guess based on little or no evidence, the word to use is ‘assume.’”

According to Judge James Crawford from the International Court of Justice, “there is a presumption that the State continues to exist, with its rights and obligations despite a period in which there is no effective government.” He also stated that “belligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” Paragraph 6-1 of the United States Army Field Manual 6-27, also states:

Military occupation of [another State’s] territory establishes a special relationship between the government of the Occupying Power, the occupied government, and the civilian population of the territory occupied. The body of international law governing occupations recognizes that the Occupying Power is responsible for the general administration of the occupied territory and its civilian inhabitants, including the maintenance of public order or safety.

“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.” A legal title under international law would be a treaty between the Hawaiian Kingdom and the United States where the Hawaiian State would merge with the State of the United States. In other words, the question is not whether the Hawaiian Kingdom continues to exist, but rather can “the party opposing that continuity” establish factual evidence, e.g. treaty, that it doesn’t continue to exist. No evidence that it doesn’t exist, the Hawaiian Kingdom continues to exist as a State under international law.

The “presumption of the continuity of a State” is similar to the “presumption of innocence.” A person on trial does not have the burden to prove their innocence. Rather, the prosecutor has to prove beyond all reasonable doubt the guilt of the person. Without proof of guilt, the person remains innocent. In international law, a recognized sovereign and independent State does not have the burden to prove it continues be a State after being belligerently occupied for over a century. Rather, the opposing State has to prove with evidence under international law that the State was extinguished. Absent the evidence, the State continues to exist.

In Hawaiian Kingdom v. Biden, the United States has not provided any “valid demonstration of legal title, or sovereignty,” that the Hawaiian Kingdom was extinguished as a State under international law. Rather it claimed that “the United States annexed Hawaii in 1898 and Hawaii entered the union as a state in 1959.” Both the 1898 Joint Resolution of annexation and the 1959 Hawai‘i Admission Act are municipal laws and, according to the U.S. Supreme Court, in The Apollon, these laws cannot “extend beyond its territory except so far as regards its citizens. They can have no force to control the sovereignty or rights of any other nation within its own jurisdiction.” The U.S. Supreme Court also stated, in United States v. Curtiss-Wright Export Corp., that “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.”

In 1988, the U.S. Department of Justice, in a legal opinion titled “Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea,” it stated that “we doubt that Congress has constitutional authority to assert either sovereignty over an extended territorial sea or jurisdiction over it under international law on behalf of the United States.” The Department of Justice also concluded, “It is therefore unclear which constitutional power of Congress exercised when it acquired Hawaii by joint resolution.”

Anecdotally, the Hawaiian Kingdom is the 800-pound Gorilla whose home is the Hawaiian Islands. On January 16, 1893, his home was invaded by Uncle Sam of the United States and on the following day he was put in chains. Uncle Sam made it appear that the Gorilla was dead and he was the new owner of the Hawaiian Islands. The Gorilla, however, was still alive. When Queen Lili‘uokalani, who spoke on behalf of the Gorilla, died on November 11, 1917, the Gorilla fell asleep. 80 years later on February 28, 1997, the Gorilla woke up after the Regency was established as the successor to Queen Lili‘uokalani. As the Gorilla is walking around in the islands, and at the Permanent Court of Arbitration from 1999-2001, in the United States District Court in Hawaiian Kingdom v. Biden since May 20, 2021, and the United Nations Human Rights Council on March 22, 2022, people are saying, “I thought you were dead!” No, the Gorilla never died, he was just sleeping for 80 years because he couldn’t speak. In the Hawaiian Kingdom v. Biden case, District Court Judge Leslie Kobayashi is having a conversation with the 800-pound Gorilla.

Today the United States filed its Reply to the Hawaiian Kingdom’s Opposition to their Motion to Dismiss. At no point in these proceedings has the United States countered the facts and evidence provided by the Hawaiian Kingdom. In other words, the facts of this case have not been contested and, as such, are considered in favor of the Hawaiian Kingdom in its effort to have the federal court transform itself into an Article II Occupation Court.

This is also the first time ever where the United States had to present their position as to its claim of sovereignty over the Hawaiian Islands. In all prior cases that came before the federal courts, the United States relied on the judges of these courts to dismiss the cases because it presents a political question. The political question doctrine prevents federal courts from recognizing the sovereignty of a country if, and only if, the political branches of the President and/or Congress had not already recognized that sovereignty.

In other words, a federal court cannot assert the political question doctrine if a country such as Switzerland filed a complaint in the U.S. District Court in Washington, D.C., against certain officials of the United States because the United States recognized Switzerland as a sovereign and independent State and entered into a treaty of friendship, commerce and extradition with the Swiss government on November 25, 1850.

This is exactly the same situation with the Hawaiian Kingdom where the United States recognized the Hawaiian Kingdom as a sovereign and independent State on July 6, 1844, and entered into a treaty of friendship, commerce and navigation with the Hawaiian Kingdom on December 20, 1849. Just as the United States has a treaty with Switzerland so does the Hawaiian Kingdom has a treaty of friendship, establishment and commerce with Switzerland dated July 10, 1864. The political question doctrine does not apply to the Hawaiian Kingdom but it has been used as an expedient remedy to temporarily protect the United States in its own courts.

In its Motion to Dismiss, the United States takes the position that it has sovereignty over the Hawaiian Islands because the Congress passed a joint resolution of annexation in 1898 and in 1959 Hawai‘i became the 50th State of the Federal Union. This is a frivolous claim because United States laws, which includes the federal constitution, have no force and effect beyond the borders of the United States. If this is true, the United States Congress can pass a joint resolution annexing Canada today. Only by a treaty can one country acquire the territory of another country. As pointed out by the United States Supreme Court, in United States v. Curtiss-Wright Corp., in 1936:

“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. As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign.”

This is consistent at the international level where the Permanent Court of International Justice, in The Lotus Case (France v. Turkey), stated, in 1927, “the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State.”

The U.S. District Court claims to be an Article III Court by virtue of Article III of the U.S. Constitution, which provides for the authority of the Judiciary. Because the Supreme Court in Curtiss-Wright stated that “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory,” the U.S. District Court in Hawai‘i cannot claim to be an Article III Court because the U.S. Constitution has no force in foreign territory. It can only exist as an Article II Court under the President’s authority as the commander-in-chief of the armed forces in foreign territory. As stated in the Amicus Brief:

“Under the concept of void ab initio, there are structures that have no legal effect from inception. The United States occupation of Hawai‘i began with unclean  hands, and this can only be remedied by a clean slate and a new beginning.”

In the Hawaiian Kingdom’s Opposition to the Motion to Dismiss, it stated that the United States cannot rely on its internal laws, which includes federal court decisions that dismissed cases under the political question doctrine, for its failure to perform its obligation under international law. Under international law, the United States is obligated to administer the laws of the Hawaiian Kingdom because it still exists as a sovereign and independent State despite that its government was illegally overthrown on January 17, 1893. The Permanent Court of Arbitration (PCA), in Larsen v. Hawaiian Kingdom, acknowledged the continued existence of the Hawaiian Kingdom as a State in 1999 and the Council of Regency as its restored government.

In its Reply, the United States continued to attempt to confuse the Court by stating what the Arbitration Tribunal stated and what the PCA did as explained by Italian scholar Professor Federico Lenzerini in his legal opinion, which is attached to the Hawaiian Kingdom’s Motion for Judicial Notice as Exhibit 1. As the Hawaiian Kingdom clearly explained in all of its pleadings to include its Opposition to the Motion to Dismiss, there is a very clear distinction between the institutional jurisdiction of PCA, which is an inter-governmental organization, and the subject matter jurisdiction of the Arbitral Tribunal that is established by the PCA.

In accordance with Article 47 of the 1907 Convention that established the PCA, it allows access to the institutional jurisdiction of the PCA by States that have not signed and ratified the 1907 Convention, which are called non-contracting States. As the Hawaiian Kingdom is not a contracting State to the 1907 Convention, it would have access to the PCA’s institutional jurisdiction under Article 47.

The Arbitral Tribunal in the Larsen case was established in accordance with Article 47 as stated in the PCA’s Annual Reports from 2000 to 2011. If the Hawaiian Kingdom was not a State under international law, there would not have been a Larsen v. Hawaiian Kingdom case. The United States stated in their Reply:

“The primary authority cited as support for Plaintiff’s theory remains Prof. Lenzerini’s interpretation of the significance of the decision by the International Bureau of the Permanent Court of Arbitration (“PCA”) to institute an arbitration involving Plaintiff. The arbitral award explicitly rejects this inference. It demonstrates that the PCA refused to reach a conclusion about Plaintiff’s sovereignty. Nonetheless, even if Plaintiff’s interpretation of the PCA’s actions were correct, it would not matter. The questions raised by Plaintiff and Prof. Lenzerini are classic political questions about the recognition of state sovereignty that the Court has no jurisdiction to answer.”

This statement is convoluted and a word salad. Foremost, the United States implies that the PCA and the Arbitral Tribunal are one in the same when it stated that the “PCA refused to reach a conclusion about Plaintiff’s sovereignty.” This is a false statement because the PCA did reach a conclusion “about Plaintiff’s sovereignty” when it formed the Tribunal on June 9, 2000. The proceedings were initiated on November 8, 1999, but the International Bureau had to be sure that the Hawaiian Kingdom existed as a State before it could form the Tribunal in the first place.

The United States relies on what the Tribunal stated in its Award that “in the absence of the United States of America [as a party], the Tribunal can neither decide that Hawaii is not part of the USA, nor proceed on the assumption that it is not.” What the United States leaves out is that it was the Hawaiian Kingdom that requested the Tribunal to declare that the Hawaiian Kingdom exists as a State. The request was made because the 2000 Annual Report acknowledging the Hawaiian Kingdom’s existence as a State in accordance with Article 47 did not come out yet.

The Hawaiian Kingdom also knew that even if the Tribunal did pronounce the Hawaiian Kingdom’s existence as a State without the participation of the United States in the proceedings it would only apply and be binding between Larsen and the Hawaiian Kingdom. As stated under Article 59 of the Statute of the International Court of Justice (ICJ), decisions of the ICJ have “no binding force except between the parties and in respect of that particular case.” And as stated by ICJ Judge Thomas Buergenthal before the membership of the American Society of International law in 2009:

“It is clear, of course, that the doctrine of stare decisis is not part of international law. For states not parties to a case, judgments of the ICJ and of some other international courts are formally not lawmaking in character in the sense in which decisions of Common Law courts are binding precedents within their respective jurisdictions.”

The existence of the Hawaiian Kingdom as a State is a question of fact and not a question of law to be decided by an international court because independent States are co-equal to each other and cannot be subjected to an international court unless it consents to its jurisdiction to preside over the dispute. To allow an international court to determine whether a State exists undermines the sovereignty of the State in the first place. Furthermore, to give consent to an international court the party to the case has to be a State in the first place. The United States is trying to argue the significance of an egg without acknowledging the chicken that laid the egg by arguing the egg and the chicken are the same thing.

When the United Nations was considering an Advisory Opinion by the ICJ on the status of Palestine in 1948, Israeli Foreign Minister Eban argued that the “existence of a State is a question of fact and not of law.” Professor Oppenheim also stated, “The formation of a new State is…a matter of fact, and not law.” The Hawaiian Kingdom is not a new State but rather an existing State since the nineteenth century and the United States has not contested the facts that show this.

Because the United States Motion to Dismiss was filed after the Hawaiian Kingdom’s Motion for Judicial Notice of Civil Law that explains the actions taken by the PCA in acknowledging the existence of Hawaiian Statehood, the judge will have to make that determination first. When the Court has transformed itself into an Article II Occupation Court it can then take up the Motions to Dismiss filed by the United States and the Swedish Consul, and also the Statement of Interest by the United States because it would have jurisdiction to address the arguments. But then again, when the Court transforms into an Article II Occupation Court, the Motions to Dismiss and the Statement of Interest are moot and fall to the ground.

Right now it doesn’t have jurisdiction because it is not within the territory of the United States but rather sits within the territory of the Hawaiian Kingdom, being an occupied State. The United States at no time in these proceedings presented any counter evidence, such as a treaty, that the Hawaiian Islands have been ceded to the United States. They solely rely on Congressional law and not international law.

The United States has backed itself into a corner that it cannot get out of and appears to be relying on the Court to try to get it out of a predicament of its own making since 1893. Based on the evidence before this Court and the involvement of 30 other countries that have Consulates in the Hawaiian Kingdom in the case, and the authors of the Amicus Brief, which are the International Association of Democratic Lawyers, the National Lawyers Guild, and the Water Protectors Legal Collective, all of whom are organizations of lawyers and jurists at both the international and national levels, the Court is bound to follow the rule of law and grant the Hawaiian Kingdom’s Motion for Judicial Notice. The United States has given no credible reason for the Court to not take judicial notice, which would lead to the transformation of the Court from an Article III Court to an Article II Occupation Court.

On January 14, 2022, the United States filed their Opposition to the Hawaiian Kingdom’s Motion for Judicial Notice of Civil Law regarding the action taken by the International Bureau of the Permanent Court of Arbitration acknowledging the Hawaiian Kingdom as a non-Contracting State to the 1907 Convention on the Pacific Settlement of International Disputes. The United States simultaneously filed a Cross-Motion to Dismiss the Hawaiian Kingdom’s Amended Complaint, which it combined with their Opposition.

Today the Hawaiian Kingdom filed two pleadings in the federal lawsuit. The first filing was its Reply to the United States Opposition to the Hawaiian Kingdom’s Motion for Judicial Notice of the Civil Law. The second filing was its Opposition to the United States Cross-Motion to Dismiss. The United States will need to file their Reply to the Hawaiian Kingdom’s Opposition by February 11, 2022. In its opening of both the Reply and the Opposition, the Hawaiian Kingdom states:

Federal Government Defendants’ (“FGDs”) opposition and cross-motion to dismiss is based entirely on the jurisdiction of this Court as an Article III Court. FGDs contend that Defendant UNITED STATES OF AMERICA is the legitimate sovereign over the Hawaiian Islands because “[t]he United States annexed Hawaii in 1898, and Hawaii entered the union as a state in 1959 [and that] [t]his Court, the Ninth Circuit, and the courts of the state of Hawaii have repeatedly ‘rejected arguments asserting Hawaiian sovereignty’ distinct from its identity as a part of the United States.” FGDs’ claims lack merit on several grounds and are an attempt to obscure, mislead and misinform this Honorable Court’s duty to apply the rule of law.  Furthermore, while Plaintiff views the actions taken by this Court as a matter of due diligence regarding Plaintiff’s motion for judicial notice, which is not a dispositive motion, FGDs’ motion to dismiss, being a dispositive motion, can only be entertained after the Court possesses subject matter and personal jurisdiction as an Article II Court.

Both filings are substantially the same but because of the limited word count for the Reply, the Opposition’s word count allowed more information to be added, especially adding critical information of a conspiracy at the highest level of President McKinley’s administration to illegally seize the Hawaiian Islands for military purposes. Leading this conspiracy was the former President Theodore Roosevelt, who at the time was serving as Assistant Secretary of the Navy. Under international law today, this conspiracy would be considered an internationally wrongful act in the unilateral seizure of the territory of a sovereign and independent State.

It is important for the reader to understand this part of the Hawaiian Kingdom’s history from a legal standpoint and why the United States claims of sovereignty over the Hawaiian Islands lack any credible evidence under both international laws and United States laws. These legal proceedings have cleared the “smoke and mirrors” that the United States has relied on in claiming Hawai‘i is the 50th State of the Federal Union. It has forced the United States to admit its claim over the Hawaiian Islands is “only” by virtue of a joint resolution of annexation. Not by conquest and not by prescription, which is lapse of time. But by a joint resolution, which, as a congressional action, has no force and effect beyond the borders of the United States.

In order for the readers to understand the scope and magnitude of the legal consequences of the United States’ actions in its prolonged and illegal occupation of the Hawaiian Kingdom, here follows the Hawaiian Kingdom’s Reply and Opposition in its entirety. The footnotes have been omitted but can be retrieved in the filings.

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II. UNITED STATES RECOGNITION OF THE HAWAIIAN KINGDOM AS A STATE AND ITS GOVERNMENT PREDATES 1898

The legal status of the Hawaiian Kingdom as an independent State predates, not postdates, 1898. FGDs omit in their pleading that President John Tyler on July 6, 1844, explicitly recognized the Hawaiian Kingdom as an independent State by letter from Secretary of State John C. Calhoun to the Hawaiian Commission. This was confirmed by the arbitral tribunal in Larsen v. Hawaiian Kingdom:

[I]n 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.

The recognition of the Hawaiian Kingdom as a State was also the recognition of its government—a constitutional monarchy, as its agent. Successors in office to King Kamehameha III, who at the time of the United States recognition was King of the Hawaiian Kingdom, did not require diplomatic recognition. These successors included King Kamehameha IV in 1854, King Kamehameha V in 1863, King Lunalilo in 1873, King Kalākaua in 1874, and Queen Lili‘uokalani in 1891.

The legal doctrines of recognition of new governments only arise “with extra-legal changes in government” of an existing State. Successors to King Kamehameha III were not established through “extra-legal changes,” but rather under the constitution and laws of the Hawaiian Kingdom. According to Professor Peterson,

A government succeeding to power according to the constitution, basic law, or established domestic custom is assumed to succeed as well to its predecessor’s status as international agent of the state. Only if there is legal discontinuity at the domestic level because a new government comes to power in some other way, as by coup d’état or revolution, is its status as an international agent of the state open to question.

On January 17, 1893, by an act of war, the United States unlawfully overthrew the government of the Hawaiian Kingdom. President Grover Cleveland entered into an executive agreement with Queen Lili‘uokalani on December 18, 1893, in an attempt to restore the government but was politically prevented from doing so by members of Congress. The failure to restore the government, however, did not affect the legal status of the Hawaiian Kingdom as an independent State under international law.

In Texas v. White, the Supreme Court stated that a State “is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed.” The Supreme Court also stated that a “plain distinction is made between a State and the government of a State.” The Supreme Court’s position is consistent with international law where the “state must be distinguished from the government. The state, not the government, is the major player, the legal person, in international law.”

According to Judge Crawford, “[p]ending a final settlement of the conflict, belligerent occupation does not affect the continuity of the State. The governmental authorities may be driven into exile or silenced, and the exercise of the powers of the State thereby affected. But it is settled that the powers themselves continue to exist. This is strictly not an application of the ‘actual independence’ rule but an exception to it…pending a settlement of the conflict by a peace treaty or its equivalent.” There is no peace treaty or its equivalent between the Hawaiian Kingdom and the United States.

In 1996, remedial steps were taken to restore the Hawaiian government. An acting Council of Regency was established in accordance with the Hawaiian Constitution and the doctrine of necessity to serve in the absence of the Executive Monarch. The Council was established in similar fashion to the Belgian Council of Regency after King Leopold was captured by the Germans during the Second World War. As the Belgian Council of Regency was established under Article 82 of its 1821 Constitution, as amended, in exile, the Hawaiian Council was established under Article 33 of its 1864 Constitution, as amended, in situ. According to Professor Oppenheimer, the inability for the Belgian Council to convene the Legislature under Article 82 to provide a Regent due to Germany’s belligerent occupation it “did not create any serious constitutional problems. … While this emergency obtains, the powers of the King are vested in the Belgian Prime Minister and the other members of the cabinet.”

Like Belgium, Article 33 provides that the Cabinet Council “shall be a Council of Regency, until the Legislative Assembly, which shall be called immediately shall proceed to choose by ballot, a Regent or Council of Regency, who shall administer the Government in the name of the King, and exercise all the Powers which are constitutionally vested in the King.” Like the Belgian Council, the Hawaiian Council was bound to call into session the Legislative Assembly to provide for a regency but because of the prolonged belligerent occupation it was impossible for the Legislative Assembly to function. Until the Legislative Assembly can be called into session, Article 33 provides that the Cabinet Council, comprised of the Ministers of the Interior, Foreign Affairs, Finance and the Attorney General, “shall be a Council of Regency, until the Legislative Assembly” can be called into session. The operative words are “shall” and “until.”

The Hawaiian Council was established in accordance with the domestic laws of the Hawaiian Kingdom as they existed prior to the unlawful overthrow of the previous administration of Queen Lili‘uokalani, and, therefore, did not require diplomatic recognition like the previous administrations. Hence, the FGDs are estopped, as a matter of United States practice from 1846 to 1893 and international law, from denying the existence of the Hawaiian Kingdom as a State and its government—the Council of Regency.

III. PRESUMPTION OF CONTINUITY OF THE HAWAIIAN STATE

Under international law, there “is a presumption that the State continues to exist, with its rights and obligations…despite a period in which there is…no effective, government,” and that belligerent “occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” “A presumption is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted.” “If 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 sustaining its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by a reference to a valid demonstration of legal rights, or sovereignty, on the part of the United States, absent of which the presumption remains.”

According to Craven, “[under international law,] as it existed at the critical date of 1898, it was generally held that a State might ceased to exist in one of three scenarios: a) By the destruction of its territory or by the extinction, dispersal or emigration of its population (a theoretical disposition). b) By the dissolution of the corpus of the State (cases include the dissolution of the German Empire in 1805-6; the partition of the Pays-Bas in 1831 or of the Canton of Bale in 1833). [And] c) By the State’s incorporation, union, or submission to another (cases include the incorporation of Cracow into Austria in 1846; the annexation of Nice and Savoy by France in 1860; the annexation of Hannover, Hesse, Nassau and Schleswig-Holstein and Frankfurt into Prussia in 1886). Of the three scenarios only the third would in principle apply to the Hawaiian situation, which occurs by an agreement that is evidenced by a valid treaty between the acquiring and the ceding State, whether in a state of peace or in a state of war. Since 1893, the Hawaiian Kingdom has been in a state of war with the United States.

The 1898 joint resolution of annexation is not a treaty of State “incorporation” under international law but rather an internal law of the United States that stems from a failed treaty. To give the joint resolution proper context, the legislative history is important in understanding the backstory of the joint resolution. The driving force for annexation was military interest as advocated by U.S. Naval Captain Alfred Mahan.

After the United States admitted unlawful overthrow of the Hawaiian Government, Mahan wrote a letter to the Editor of the New York Times where he advocated seizing the Hawaiian Islands. On January 31, 1893, he wrote that the Hawaiian Islands, “with their geographical and military importance, [is] unrivalled by that of any other position in the North Pacific.” Mahan used the Hawaiian situation to bolster his argument of building a large naval fleet. He warned that a maritime power could well seize the Hawaiian Islands, and that the United States should take that first step. He stated that to hold the Hawaiian Islands, “whether in the supposed case or in war with a European state, implies a great extension of our naval power. Are we ready to undertake this?” Mahan would have to wait four years to find an ally in President William McKinley’s Department of the Navy, Assistant Secretary of the Navy, Theodore Roosevelt.

Roosevelt sent a private and confidential letter, on May 3, 1897, to Mahan. He wrote, “I need not tell you that as regards Hawaii I take your views absolutely, as indeed I do on foreign policy generally. If I had my way we would annex those islands tomorrow.”  Moreover, Roosevelt told Mahan that Cleveland’s handling of the Hawaiian situation was “a colossal crime, and we should be guilty of aiding him after the fact if we do not reverse what he did.” Roosevelt also assured Mahan “that Secretary [of the Navy] Long shares [their] views. He believes we should take the islands, and I have just been preparing some memoranda for him to use at the Cabinet meeting tomorrow.”

In a follow up letter to Mahan, on June 9, 1897, Roosevelt wrote that he “urged immediate action by the President as regards Hawaii. Entirely between ourselves, I believe he will act very shortly. If we take Hawaii now, we shall avoid trouble with Japan.” Eight days later, on June 16, 1897, the McKinley administration signed a treaty of “incorporation” with its American puppet—the Republic of Hawai‘i, in Washington, D.C. On the following day, Queen Lili‘uokalani submitted a formal protest to the U.S. State Department stating, “I declare such a treaty to be an act of wrong toward the native and part-native people of Hawaii, an invasion of the rights of the ruling chiefs, in violation of international rights both toward my people and toward friendly nations with whom they have made treaties, the perpetuation of the fraud whereby the constitutional government was overthrown, and, finally, an act of gross injustice to me.”

Ignoring the protest, President McKinley submitted the treaty for Senate ratification, which required a minimum of 60 votes under United States law.  The Senate, however, was not convening until December 6, 1897. This prompted two Hawaiian political organizations to mobilize signature petitions protesting annexation. According to Professor Silva, the “strategy was to challenge the U.S. government to behave in accordance with its stated principles of justice and of government of the people, by the people, and for the people.” The Hawaiian Political Association (Hui Kalai‘āina) gathered over 17,000 signatures, and the Hawaiian Patriotic League (Hui Aloha ‘Āina) gathered 21,269 signatures. The last official census, done in 1890, tallied Hawaiian subjects at 48,107, and, therefore, the petitions, in fact, represented the majority of the Hawaiian citizenry.

The leaders representing the Hawaiian Patriotic League and the Hawaiian Political Association, arrived in Washington, D.C., on December 6, 1897, the same day the Senate opened its session, and were told there were 58 votes for annexation. The next day, they met with Queen Lili‘uokalani and chose her as chair of the Washington Committee. In that meeting, “they decided to present only the petitions of Hui Aloha ‘Āina because the substance of the two sets of petitions were different. Hui Aloha ‘Āina’s petition protested annexation, but the Hui Kālai‘āina’s petitions called for the monarchy to be restored. They agreed that they did not want to appear divided or as if they had different goals.”

Senators Richard Pettigrew and George Hoar met with the Committee and said they would lead the opposition in the Senate. Senator Hoar stated he would introduce opposition into the Senate and the Senate Foreign Relations Committee. “On December 9, with the delegates present, Senator Hoar read the text of the petitions to the Senate and had them formally accepted.” In the days that followed, the Committee would meet with many Senators urging them not to ratify the treaty. Two of the leading Senators for annexation were Senators Henry Cabot Lodge and John Morgan, who were both strong believers in Captain Mahan’s views on Hawai‘i.

Unbeknownst to the Queen and the Hawaiian delegates, Senators began to inquire into the military importance of annexing the Hawaiian Islands. On this matter, Senator James Kyle made a request, by letter, to Mahan, on February 3, 1898, where he wrote, “[r]ecent discussions in the Senate brought prominently to the front the question of the strategic features of the Hawaiian Islands, and in this connection many quotations have been made from your valuable and highly interesting contribution to literature in regard to these islands.”

This was war rhetoric to justify the preemptive seizure of a neutral State for military interests. It was precisely what Germany did in 1914 to justify its invasion and occupation of Luxembourg. Germany invaded Luxembourg before formally declaring war against France. German military commander, Herr von Jagow then stated, “to our great regret, the military measures which have been taken have become indispensable by the fact that we have received sure information that the French military were marching against Luxemburg. We were forced to take measures for the protection of our army and the security of our railway lines.” Herr von Jagow then issued a proclamation stating “all the efforts of our Emperor and King to maintain peace have failed. The enemy has forced Germany to draw the sword. France has violated the neutrality of Luxemburg and has commenced hostilities on the soil of Luxemburg against German troops, as has been established without a doubt.” The French protested against this German invasion and confirmed there were no French troops in Luxembourg. Thus, according to Garner, “The alleged intentions of France were merely a pretext, and the violation of Luxemburg was committed by Germany solely in her military interest and in no sense on the ground of military necessity.”

It appears the Senators were not swayed by Mahan’s position because by the time the Hawaiian Committee left Washington, D.C., on February 27, 1897, they had successfully chiseled the 58 Senators in support of annexation down to 46. Unable to garner the necessary 60 votes, the treaty failed by March, yet war with Spain was looming over the horizon, and the Hawaiian Kingdom would have to face the belligerency of the United States again. American military interests would be the driving forces behind the occupation of the islands, and Mahan’s philosophy, the guiding principles. On April 25, 1898, Congress declared war on Spain.

On May 1, 1898, the U.S.S. Charleston, a protect cruiser, was commissioned. Then on May 5, it was ordered to lead a convoy of 2,500 troops to reinforce Dewey in the Philippines and Guam. In a move to deliberately violate Hawaiian neutrality, the convoy set a course to re-coal and arrived in Honolulu harbor on June 1. This convoy took on 1,943 tons of coal before it left on June 4. A second convoy of troops arrived in Honolulu harbor on June 23 and took on 1,667 tons of coal. On June 8, H. Renjes, the Spanish Vice-Counsel in Honolulu, lodged a formal protest. Renjes declared, “In my capacity as Vice Consul for Spain, I have the honor today to enter a formal protest with the Hawaiian Government against the constant violations of Neutrality in this harbor, while actual war exists between Spain and the United States of America.”

The U.S. gave formal notice to the other powers of the existence of war so that these powers could proclaim neutrality, yet the United States was also violating the neutrality of the Hawaiian Kingdom at that time. From Professor Bailey’s view, the position taken by the United States “was all the more reprehensible in that she was compelling a weak nation to violate the international law that had to a large degree been formulated by her own stand on the Alabama claims. Furthermore, in line with the precedent established by the Geneva award, Hawaii would be liable for every cent of damage caused by her dereliction as a neutral, and for the United States to force her into this position was cowardly and ungrateful.” Bailey also wrote, “At the end of the war, Spain or a cooperating power would doubtless occupy Hawaii, indefinitely if not permanently, to insure payment of damages with the consequent jeopardizing of the defenses of the Pacific Coast.”

On May 4, Representative Francis Newlands submitted a joint resolution for the annexation of the Hawaiian Islands to the House Committee on Foreign Affairs. On May 17, the joint resolution was reported out of the Committee without amendment and headed to the floor of the House of Representatives. The joint resolution’s accompanying Report justified the congressional action to seize the Hawaiian Islands as a matter of military interest, which was advocated by Mahan.

The Congressional record clearly showed that when the joint resolution of annexation reached the floor of the House of Representatives, members of Congress knew the limitations of congressional laws. Representative Thomas H. Ball emphatically stated, “[t]he annexation of Hawaii by joint resolution is unconstitutional, unnecessary, and unwise. …Why, sir, the very presence of this measure here is the result of a deliberate attempt to do unlawfully that which can not be done lawfully.” When the resolution reached the Senate, Senator Augustus Bacon sarcastically remarked that the “friends of annexation, seeing that it was not possible to make this treaty in the manner pointed out by the Constitution, attempted then to nullify the provision in the Constitution by putting that treaty in the form of a statute, and here we have embodied the provisions of the treaty in the joint resolution which comes to us from the House.” Senator William Allen added, “[t]he 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.” He later reiterated, “I utterly repudiate the power of Congress to annex the Hawaiian Islands by a joint resolution.”

Despite these objections the Congress passed the joint resolution and President McKinley signed it into law on July 7, 1898. This notwithstanding, the Department of Justice in 1988 concluded in a legal opinion, it is “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.”

Since the United States failed to carry out its obligation to reinstate the Executive Monarch and her Cabinet, under the executive agreement concluded with the Cleveland administration, the McKinley administration took complete advantage of its puppet called the Republic of Hawai‘i, and deliberately violated Hawaiian neutrality during the war. This served as leverage to force the hand of Congress to pass the joint resolution purporting to annex a foreign State. This was revealed while the Senate was in secret session on May 31, 1898, where Senator Lodge argued that the “[a]dministration was compelled to violate the neutrality of those islands, that protests from foreign representatives had already been received, and complications with other powers were threatened, that the annexation or some action in regard to those islands had become a military necessity.”

The transcripts of the secret session would not be made public until January 1969, after a historian noted there were gaps in the Congressional records. The transcripts were made public after the Senate passed a resolution authorizing the U.S. National Archives to open the records. The Associated Press in Washington, D.C., reported that “the secrecy was clamped on during a debate over whether to seize the Hawaiian Islands—called the Sandwich Islands then—or merely developing leased areas of Pearl Harbor to reinforce the U.S. fleet in Manila Bay.”

In violation of international law and the treaties with the Hawaiian Kingdom, the United States maintained the insurgents’ control until the Congress could reorganize its puppet. By statute, the Congress changed the name of the Republic of Hawai‘i to the Territory of Hawai‘i on April 30, 1900. Later, on March 18, 1959, the Congress, again by statute, changed the name of the Territory of Hawai‘i to the State of Hawai‘i. According to the U.S. Supreme Court, however, “[n]either the Constitution nor the laws passed in pursuance of it have any force in foreign territory,” which renders these congressional acts ultra vires. Of significance is this Court’s Article III status that derives from Section 9(a) of the 1959 Statehood Act.

Under the maxim ex injuria jus non oritur, FGDs’ argument that “[t]he United States annexed Hawaii in 1898, and Hawaii entered the union as a state in 1959” fails to constitute “a valid demonstration of legal rights, or sovereignty, on the part of the United States.” Therefore, the United States has provided no “facts sustaining its rebuttal” of the continuity of the Hawaiian State. Furthermore, under international law, the 1898 joint resolution of annexation and the 1959 Statehood Act, are considered internationally wrongful acts, and the FGDs are estopped from asserting that it is the legitimate sovereign over the Hawaiian Islands.

IV. DEFENDANTS ARE PRECLUDED FROM INVOKING ITS INTERNAL LAW AS A JUSTIFICATION FOR NOT COMPLYING WITH ITS INTERNATIONAL OBLIGATIONS

When the United States assumed control of its installed puppet under the new title of Territory of Hawai‘i in 1900, and later the State of Hawai‘i in 1959, it surpassed “its limits under international law through extraterritorial prescriptions emanating from its national institutions: the legislature, government, and courts.” The purpose of this extraterritorial prescription was to conceal the belligerent occupation of the Hawaiian Kingdom and bypass their duty to administer the laws of the occupied State in accordance with customary international law at the time, which was later codified under Article 43 of the 1907 Hague Regulations. According to Professor Benvinisti, “[t]he occupations of Hawaii, The Philippines, and Puerto Rico reflected the same unique US view on the unlimited authority of the occupant.” This extraterritorial application of American municipal laws is prohibited by the rules of jus in bello.

The occupant may not surpass its limits under international law through extra-territorial prescriptions emanating from its national institutions: the legislature, government, and courts. The reason for this rule is, of course, the functional symmetry, with respect to the occupied territory, among the various lawmaking authorities of the occupying state. Without this symmetry, Article 43 could become meaningless as a constraint upon the occupant, since the occupation administration would then choose to operate through extraterritorial prescription of its national institutions.

According to Article 27 of the 1969 Vienna Convention on the Law of Treaties, FGDs are prohibited from “invok[ing] the provisions of its internal law as justification for its failure to perform a treaty,” which is Article 43 of the 1907 Hague Regulations. Although the United States has not ratified the Vienna Convention, U.S. foreign relations law pronounced the rule that no State may invoke its internal law as justification for the nonobservance of a treaty by which it is bound. In Coplin v. United States, the Supreme Court referred to the U.S. government’s brief in Weinberger v. Rossi: “[a]though the Vienna Convention is not yet in force for the United States, it has been recognized as an authoritative source of international treaty law by the courts…and the executive branch.” The court was referring to Article 27 of the Vienna Convention. “The first sentence of article 27 gives expression to a well-established principle of international law that a State may not evade its international obligations by pleading its own law as an excuse for noncompliance.” While the Federal Rules of Civil Procedures and the Local Rules of the Court are not internal law, they are administrative rules that do not have binding force but are instructional for the purposes of these proceedings until the Court transforms itself into an Article II Court and declare these rules to be binding.

V. DISTINGUISHING THE INSTITUTIONAL JURISDICTION OF THE PERMANENT COURT OF ARBITRATION FROM THE SUBJECT MATTER JURISDICTION OF THE LARSEN ARBITRAL TRIBUNAL

FGDs erred when they stated that “[c]entral to Professor Lenzerini’s opinion is an arbitration between an individual, Lance Larsen, and the Plaintiff before the Permanent Court of Arbitration (“PCA”) at the Hague, which Plaintiff and Professor Lenzerini believe is a tacit acknowledgment of Plaintiff’s status as a sovereign entity. However, the final arbitral award from the PCA in this dispute, issued on February 5, 2001, explicitly stated that, ‘in the absence of the United States of America [as a party] the Tribunal can neither decide that Hawaii is not part of the USA, nor proceed on the assumption that it is not.’”

Plaintiff is puzzled by this statement, given Plaintiff’s previous pleadings clearly distinguishes between the institutional jurisdiction of the PCA and the subject matter jurisdiction of the arbitral tribunal. What are the undisputed facts is that a notice of arbitration was filed by Larsen’s counsel with the International Bureau of the PCA on November 8, 1999, and that six months later the International Bureau, by virtue of Article 47 of the 1907 Convention for the Pacific Settlement of International Disputes (“1907 Convention”), established the arbitral tribunal on June 9, 2000. Professor Lenzerini, in his opinion attached to Plaintiff’s motion for judicial notice, addressed the actions taken by the International Bureau of the PCA prior to the formation of the arbitral tribunal, which the civil law tradition explains from an evidentiary standpoint, and not the arguments of the arbitral tribunal, which did not have subject matter jurisdiction because of the indispensable third-party rule. Without the Hawaiian Kingdom being a juridical fact, the International Bureau could not have completed the juridical act of establishing the arbitral tribunal in the first place.

The institutional jurisdiction of the International Criminal Court (“ICC”) was also recently the central issue relating to the “Situation in the State of Palestine.” Like Article 47 of the 1907 Convention, Article 12(2)(a) of the Rome Statute grants the ICC the authority to “exercise its jurisdiction” to investigate international crimes within the territory of a State Party to the Statute. Professor Malcolm Shaw authored an amicus curiae brief filed with the ICC’s Pre-Trial Chamber I on March 16, 2020, that addressed the question of Palestinian Statehood. According to Shaw:

[W]hether or not Palestine is a state is actually critical to defining and determining the Court’s territorial jurisdiction in this matter. If Palestine is not a state, then it cannot have sovereignty over territory and cannot come within the terms of article 12 of the Statute. Thus, in the absence of clear and irrefutable evidence of Palestine’s existence as a state and taking into account the lack of an international consensus in this regard, both quantitative and qualitative, the Court cannot assert that there is such a state at this point in time.

Article 12 does not refer to the subject matter jurisdiction of an ICC trial court, but rather provides institutional jurisdiction for the Prosecutor of the ICC to investigate international crimes that may or may not go to trial. Similarly, Article 47 does not refer to the subject matter jurisdiction of the arbitral tribunal, but rather provides the institutional jurisdiction for the International Bureau to form the arbitral tribunal to resolve an international dispute.

VI.  CONCLUSION

The FGDs have provided no legal basis for the Court to grant FGDs’ cross-motion to dismiss. While this Court has yet to transform itself from an Article III Court to an Article II Court, the Plaintiff perceives this Court to be in a state of due diligence regarding Plaintiff’s motion for judicial notice. In the meantime, neither the Plaintiff nor the FGDs can get relief for their amended complaint and cross-motion to dismiss, respectively, until the Court possesses subject matter and personal jurisdiction as an Article II Court pursuant to Pennoyer v. Neff.

On September 30, 2021, Magistrate Judge Rom A. Trader issued an Order granting the Motion for Leave to File Amended Amicus Curiae Brief on Behalf of Nongovernmental Organizations with Expertise in International Law and Human Rights Law [ECF 90]. Amici filed their Amended Amicus Curiae Brief on October 6, 2021 [ECF 96]. Before the Court can address FGDs’ motion to dismiss it must first transform itself into an Article II Court for the reasons stated in the filed Amicus Brief, which is “trustworthy evidence of what [international] law really is.”

Therefore, this Court is bound by treaty law to take affirmative steps to transform itself into an Article II Court by virtue of Article 43 of the 1907 Hague Regulations, just as the International Bureau of the PCA established the arbitral tribunal by virtue of Article 47 of the 1907 Convention because of the juridical fact of the Hawaiian Kingdom’s existence as a State. This Court is bound to transform itself into an Article II Court because it is situated within the territory of the Hawaiian Kingdom and not within the territory of the United States. Furthermore, FGDs have provided no rebuttable evidence to the contrary other than invoking its internal laws as justification for not complying with its international obligations, which are barred by customary international law and treaty law.

As Hawai‘i’s people begin to awake to the reality of their country, the Hawaiian Kingdom, having been under an illegal and prolonged occupation by the United States since January 17, 1893, they have to contend with conflicting information on a daily basis. It is like walking down the hallway of a house in the dark. Every door that opens is someone telling “their” story with evidence “they” gathered that “they” say supports “their” conclusion. Which story is accurate and which story is not? There needs to be some sort of standard to discern fact from fiction whether it is about the Hawaiian Kingdom or COVID-19 that is in the Hawaiian Kingdom.

Stories are called anecdotes, and information that someone may use to tell the story could be anecdotal evidence. “Anecdotal Evidence is information you obtain from a subjective report, an observation, or some kind of example that may or may not be reliable. In addition, anecdotal evidence is not scientifically valid or representative of a larger group or of conditions in another location.” In academic research, anecdotal evidence is considered a fallacy. The anecdote is the story to be told and the evidence is selectively chosen by the storyteller to support the story. This is commonly referred to as “confirmation bias” or “cherry picking” because the storyteller would ignore evidence that would undermine the story being told.

Anecdotal evidence is on the opposite spectrum of science, which is “the intellectual and practical activity encompassing the systematic study of the structure and behavior of the physical and natural world through observation and experiment.” In political science, which is social science, it is “the systematic study of governance by the application of empirical and generally scientific methods of analysis. As traditionally defined and studied, political science examines the state and its organs and institutions.”

In both the hard sciences and the social sciences, there is a reliance on theory, which is an explanation of a set of known facts. A simple way to think of it is that the theory of football exists to explain the facts of a football game. Both sciences have a critical component called research and research relies on theories and evidence.

One of the ways to discern a person using anecdotal evidence from a person using scientific evidence is to first see their credentials, whether professional or academic, that would indicate that they have a particular expertise in the subject area. You should not prefer a golf coach to explain to you a football game. Second, does the person have published articles on the subject that has been peer-reviewed. This is very important because peer-review is a form of a vetting process that qualifies a person’s explanation and conclusions of a particular subject.

The way peer-review works is a journal’s editorial board will receive a manuscript that represents the author’s research and findings. If the manuscript satisfies the editorial board’s criteria of topic and form, the editorial board will seek out academics that are recognized as experts in certain fields that are covered in the manuscript. A peer-review journal can have up to 4 referees to review and provide comment on the manuscript. Peer-review is usually double blind where the referees do not know who the author is, and the author does not know who the referees are. All the author knows is that the referees are experts in certain fields that the editorial board reached out to.

After the reviews by the referees are submitted to the editorial board, the board will go over the comments made by the referees and determine whether the manuscript is suitable for publication. Some manuscripts would be rejected, while others would be conditionally accepted with adjustments as recommended by the referees. A manuscript based on anecdotal evidence would not be accepted for publication from the start.

In the case of the Hawaiian Kingdom, the vetting process was the Permanent Court of Arbitration (PCA), in Larsen v. Hawaiian Kingdom. Larsen sought to hold the government of the Hawaiian Kingdom legally accountable for allowing the unlawful imposition of American municipal laws over him that caused him to have an unfair trial and be subsequently incarcerated. However, before the PCA could form an arbitration tribunal to resolve the dispute, it had to ensure that the institution had jurisdiction or authority to do so in the first place.

Article 47 of the 1907 Hague Convention (PCA) only allows access to the PCA if one of the parties is a “State” recognized under international law. The proceedings were instituted on November 8, 1999, and after the PCA verified the Hawaiian Kingdom to be a “State” an arbitration tribunal was formed on June 9, 2000. The Secretariat of the PCA, also known as the International Bureau, served as a vetting institution, and after its due diligence in reviewing the evidence through the legal theory of international law, it concluded that the Hawaiian Kingdom is an independent State.

This finding by an intergovernmental institution, falsifies the storytellers using anecdotal evidence. Since then, academics have published peer-review journal articles and publications that speak to the Hawaiian Kingdom as a State in continuity that has been under a prolonged belligerent occupation by the United States since January 17, 1893.

In this time of the pandemic, it is crucial to distinguish anecdotal evidence from scientific evidence. Dr. Anthony Fauci is an expert in this field, and he does have the credentials. More importantly, Dr. Fauci has publications on the topic of COVID-19 in peer-review journals. If Dr. Fauci lived in nineteenth century, the Hawaiian Kingdom Government’s Board of Health would have relied on his opinions and recommendations regarding COVID-19 if it arrived in the Hawaiian Islands.

As an occupied State, international humanitarian law and the law of occupation mandate that the occupying State—the United States and its proxy the State of Hawai‘i must administer the laws of the Hawaiian Kingdom. Since the occupation is prolonged, which has now lasted for over a century, Hawaiian Kingdom laws needed to be brought up to date. This is what prompted the Council of Regency to decree, by proclamation on October 10, 2014, the provisional laws of the Hawaiian Kingdom.

Now, therefore, We, the acting Council of Regency of the Hawaiian Kingdom, serving in the absence of the Monarch and temporarily exercising the Royal Power of the Kingdom, do hereby acknowledge that acts necessary to peace and good order among the citizenry and residents of the Hawaiian Kingdom, such for example, as acts sanctioning and protecting marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfer of property, real and persona, and providing remedies for injuries to person and estate, and other similar acts, which would be valid if emanating from a lawful government, must be regarded in general as valid when proceeding an actual, though unlawful government, but acts in furtherance or in support of rebellion or collaborating against the Hawaiian Kingdom, or intended to defeat the just rights of the citizenry and residents under the laws of the Hawaiian Kingdom, and other acts of like nature, must, in general, be regarded as invalid and void.

And, We do hereby proclaim that from the date of this proclamation all laws that have emanated from an unlawful legislature since the insurrection began on July 6, 1887 to the present, to include United States legislation, shall be the provisional laws of the Realm subject to ratification by the Legislative Assembly of the Hawaiian Kingdom once assemble, with the express proviso that these provisional laws do not run contrary to the express, reason and spirit of the laws of the Hawaiian Kingdom prior to July 6, 1887, the international laws of occupation and international humanitarian law, and if it be the case they shall be regarded as invalid and void.

In a letter from the National Lawyers Guild (NLG) to dated November 20, 2020, the NLG urged:

Governor Ige to proclaim the transformation of the State of Hawai‘i and its Counties into an occupying government pursuant to the Council of Regency’s proclamation of June 3, 2019 in order to administer the laws of the Hawaiian Kingdom. This would include carrying into effect the Council of Regency October 10, 2014 Proclamation that brings Hawaiian Kingdom laws up to date. We further urge you and other officials of the State of Hawai‘i and its Counties to become familiar with the contents of the recent eBook published by the [Royal Commission of Inquiry] and its reports that comprehensively explain the current situation of the Hawaiian Islands and the impact that international humanitarian law and human rights law have on the State of Hawai‘i and its inhabitants.

The following year, the International Association of Democratic Lawyers (IADL) passed a resolution dated February 7, 2021, that supports the NLG’s November 10, 2020 letter to State of Hawai‘i Governor David Ige urging him to “proclaim the transformation of the State of Hawai‘i and its Counties into an occupying government pursuant to the Council of Regency’s proclamation of June 3, 2019, in order to administer the laws of the Hawaiian Kingdom. This would include carrying into effect the Council of Regency’s proclamation of October 10, 2014 that bring the laws of the Hawaiian Kingdom in the nineteenth century up to date.”

The United States and the State of Hawai‘i have not transformed themselves into an occupying government in order to provisionally administer Hawaiian Kingdom law. This is what prompted the filing of a complaint on May 20, 2020 with the United States District Court for the District of Hawai‘i in Hawaiian Kingdom v. Biden. The IADL and NLG filed a amicus brief in the case, and the proceedings led to the closure of the Czech Republic Consulate in Hawai‘i. If they had transformed themselves into an occupying government before the pandemic hit the Hawaiian Islands, Hawaiian quarantine regulations would have secured Hawai‘i’s borders.

Hawaiian Kingdom laws include the Hawaiian Penal Code, which makes the intentional spreading of an “infectious disease,” such as COVID-19, a felony crime.

Hawaiian Penal Code
Chapter XXXVI—Common Nuisances

1. The offense of common nuisance is the endangering of the public personal safety or health. As, for example, the…spreading or endangering the spreading of the small pox, or other infectious disease.

…

9. Whoever is guilty of the offense of common nuisance in the first degree, for which punishment is not otherwise expressly provided by statute, shall be punished by imprisonment at hard labor not more than six months, or by fine not exceeding five hundred dollars (inflation calculator in 1893 is $14,605.43 in 2020).

10. Whoever is guilty of the offense of common nuisance in the second degree, for which punishment is not otherwise expressly provided by statute, shall be punished by imprisonment at hard labor not more than two months, or by fine not exceeding twenty-five dollars (inflation calculator in 1893 is $730.27 in 2020).

To commit the crime of common nuisance in the first degree, the perpetrator had premeditation with a plan to spread the infectious disease of COVID-19. Second degree is where the perpetrator intended to spread the infectious disease of COVID-19 but had no plan to commit the spreading.

To combat the spreading of infectious diseases, the Hawaiian Kingdom Board of Health would utilize vaccines and quarantine as was the case with smallpox, or if there were no vaccines for an infectious disease such as measles, the defense would be quarantine, isolation and medical care. A vaccine for measles was not available until 1963.

Hawaiian Penal Code
Chapter LIX—The Public Health

1. There shall be appointed by the King in privy council, upon nomination of the minister of the interior, a board of health for the kingdom, consisting of three persons, who shall serve during the King’s pleasure, and be charged with the general oversight and care of the public health.

2. It shall not be lawful for any foreigner, whether naturalized or otherwise, to practice in this kingdom as a physician or surgeon, for compensation or reward, unless he shall have first presented to the board of health, or to such examiners as said board may appoint for that purpose, satisfactory evidence of his professional qualifications and good moral character, and obtained a certificate of approval from said board, and a license from the minister of the interior. Any person violating the provisions of this section shall, upon conviction thereof, be liable to a penalty of one hundred dollars for each offense. (Civil Code, Section 279.)

3. Said board of health may appoint suitable agents in such localities as it may deem necessary, to carry into effect all regulations for the public health; and its shall hold such agents accountable for all moneys received and disbursed by them, on account of the public health, and also for the manner in which they may discharge their several duties. (Civil Code, Sec. 280.)

4. The board of health shall make such regulations respecting nuisances, sources of filth, and causes of sickness, within the respective districts of the kingdom, and on board of any vessels, as it shall judge necessary for the public health and safety. (Civil Code, Section 281.)

5. Said board shall also make such regulations as it may judge necessary for the public health and safety, respecting any articles which are capable of containing, or conveying any infection or contagion, or of creating any sickness, when such articles shall be brought into, or conveyed from any district, or into or from any vessel.

The Hawaiian Kingdom took public health very seriously given the devastating toll that infectious diseases took on the aboriginal Hawaiian population, whether smallpox, whooping cough, measles, or influenza. The Hawaiian crime of common nuisance cuts through any belief of Americanism that people have a choice to spread or not spread an infectious disease to the public. Some Americans claim that they have a personal right to decide whether to take the vaccine and/or not wear masks with complete disregard for the health of the public. They claim that they are sovereign citizens and government cannot take their liberties away to decide. THIS IS NOT AMERICA.

People that are not Hawaiian subjects are also subject to the crime of common nuisance. Section 1, Chapter III—Local Jurisdiction of Offenses states, “All persons, whether subjects of this kingdom, or citizens or subjects of any foreign state, government or country, are, while within the limits of this kingdom, subject to its laws, except so far as exception is made by the law of nations in respect to ambassadors or others.” And Chapter IV—Capacity and Responsibility for Offenses, states:

4. Any person acting under mental derangement, rendering him incompetent to discern the nature and criminality of an act done by him, shall not be subject to punishment thereof: Provided, however, that if any such person, while capable of discerning the nature and criminality of any act, entertained the intent to do the same, and subsequently does it in pursuance and execution of such intent, he shall be held responsible therefore, though the same be done in such state of mental derangement; and so also if any person voluntarily or heedlessly induce the mental derangement by intoxication or otherwise.

5. No person shall be held criminally responsible for any act, to the doing of which he is compelled by force which he cannot resist, or from which he cannot escape: Provided, however, that no compulsion shall be presumed without evidence; and no one shall be able to justify himself against a charge of his doing an injury to another, by showing the threat or imminent danger of an equal or less injury to himself.

Section 5, Chapter I—Definitions of Some of the Terms used in this Code, provides, “Words in the masculine gender, signify both the masculine and feminine gender, and those in the singular or plural number signify both the singular or plural number, and words importing adults, signify youths or children, where, from the subject matter, the sense, and the connection in which the words are used, such construction appears to be intended.”

Yesterday, the Star-Advertiser reported that Cedric Gates stated, “I think what has been going on in our community is an issue of mistrust with government and miscommunication, and just misinformation in general being spread through the masses, through social media and these different platforms.” He also stated that many have been susceptible to their Instagram or Facebook feeds, or what they heard from their cousin’s cousin.

Not everything you read on the internet is true. Here’s a State Farm Insurance ad that first aired 9 years ago. It’s more relevant now than it was then.