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.

Royal Commission of Inquiry Calls Upon the State of Hawai‘i to Comply with International Law and to Work with the Council of Regency

HAWAIIAN KINGDOM – After returning from oral hearings held at the Permanent Court of Arbitration, The Hague, Netherlands, where the Council of Regency represented the Hawaiian Kingdom in Larsen v. Hawaiian Kingdom in December of 2000, the Council of Regency focused its attention on the effects of denationalizationAmericanization where the national consciousness of the Hawaiian Kingdom was obliterated.

Denationalization was formally initiated in 1906 by the Board of Education and carried into effect within the public and private schools throughout the Hawaiian Islands. Within three generations, Hawaiian Kingdom national consciousness had been effectively replaced with American national consciousness and the national language of Hawaiian replaced with English. As part of this inculcation, young students were led to falsely believe that the Hawaiian Islands had become a part of the United States, and they were now American citizens.

According to Professor William Schabas, recognized expert in international criminal law, who provided a legal opinion for the Royal Commission of Inquirydenationalization, among other international crimes committed in the Hawaiian Islands, is a war crime under customary international law. War crimes have no statutes of limitations and criminal culpability will last up to 80 years after the war crime was committed.

The Royal Commission was established, by proclamation of the Council of Regency, on April 17, 2019. Its mandate is to investigate war crimes and human rights violations committed within the territorial jurisdiction of the Hawaiian Kingdom since the unlawful overthrow of the Hawaiian government in 1893, and the subsequent belligerent occupation by the United States ever since.

The lawful authority of the Council of Regency has also been the subject of a recent legal opinion by Professor Federico Lenzerini, a professor of international law from the University of Siena, Italy. The American treatise, Restatement (Third) of the Foreign Relations Law of the United States,, §103(2)(c), 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. In his opinion, Professor Lenzerini concluded that:

1. the Council of Regency possesses the constitutional authority to temporarily exercise the Royal powers of the Hawaiian Kingdom;

2. the Council of Regency 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; and

3. 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. 

Professor Lenzerini further concludes:

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.”

Imposition of United States legislative and administrative measures constitutes the war crime of usurpation of sovereignty under customary international law. This includes the legislative and administrative measures of the State of Hawai‘i and its Counties.

Professor Schabas also identified usurpation of sovereignty as a war crime that has and continues to be committed in the Hawaiian Islands. His legal opinion was also incorporated in a book published by the Royal Commission as chapter 4—War Crimes Related to the United States Belligerent Occupation of the Hawaiian Kingdom. This publication is downloadable as an eBook at no charge.

In 2015, Dr. David “Keanu” Sai met with State of Hawai‘i Governor Ige’s Chief of Staff, Mike McCartney, on three occasions at his office in the Executive Chambers regarding the subject of war crimes and the American occupation. After the meetings, Dr. Sai provided Mr. McCartney a report on July 2, 2015, on the duty and obligation of the State of Hawai‘i to transform itself into a Military government in order to come into compliance with international law. This transformation would take place when the governor declares martial law in accordance with the provisions of the State of Hawai‘i Constitution.

Governor Ige at the time did not take the necessary steps to comply with international law and the law of occupation. Consequently, the State of Hawai‘i and its Counties have continued to commit war crimes and human right violations, as well as violations of international law. As such, the actions and conduct of State of Hawai‘i and County officials have come under the purview of the Royal Commission of Inquiry.

The Royal Commission, however, sees as its priority the establishment of the Military government in order to administer the laws of the occupied State, and, thereby, bringing the State of Hawai‘i and its Counties into compliance with international law of occupation. This is the only way for war crimes and human rights violations to cease.

Members of the State of Hawai‘i and its Counties are not the insurgents of 1893, but rather individuals that found themselves in a tenuous situation without any fault of their own. Their actions viewed through the lens of international humanitarian law, however, have led to the commission of war crimes against the civilian population who have been made aware of the prolonged occupation, and when they were asserting their rights, they were maliciously attacked. Awareness of the American occupation satisfies the mental element necessary for the prosecution of a war crime.

The awareness of the prolonged occupation has reached the National Education Association (NEA) by a resolution introduced in 2017 by the Hawai‘i State Teachers Association at the NEA’s annual convention in Boston. This resulted in three articles that were published by the NEA on its website in 2018. 

Also, the National Lawyers Guild, “the oldest and largest progressive bar association in the United States, calls upon the United States to immediately begin to comply with international humanitarian law in its prolonged and illegal occupation of the Hawaiian Kingdom since 1893.”

The Royal Commission recognizes that war crimes and human rights violations cannot continue to be committed with impunity and the perpetrators must be held accountable, but it does recognize that the Council of Regency must have, as Professor Lenzerini stated in his opinion, 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.”

To this end, a letter of correspondence was sent by Dr. Sai, as Head of the Royal Commission of Inquiry, to State of Hawai‘i Attorney General Clare Connors on June 2, 2020. In his letter, Dr. Sai ends with:

These are not normal times but you are the legal advisor to the Governor, and due to the severity of the situation under international criminal law and the material elements of mens rea and actus reus, I respectfully implore you to carefully review the information I have provided you and to advise the office of the Governor accordingly. Under international humanitarian law, decisions on this matter are not with the federal government nor is it with its military here in the islands, but solely on the shoulders of the State of Hawai‘i as it is the entity in effective control of Hawaiian territory thereby triggering the law of occupation. I should also note that the governmental infrastructure of the State of Hawai‘i is that of the Hawaiian Kingdom. The only change was in name, e.g. the Department of Land and Natural Resources is the Ministry of the Interior. All that was changed in 1893 was the Queen and her cabinet, and the top law enforcement of the kingdom, being forcibly replaced by insurgents calling themselves the Executive and Advisory Councils.

Notwithstanding the warrantless attacks against myself and other officers of the Council of Regency by the State of Hawai‘i, I am hopeful that its current leadership, as the administration of the occupying State, will begin to meet with the Council of Regency in order to establish a “cooperative relationship” provided by international humanitarian law. In the meantime, the Royal Commission will continue to fulfill its mandate of investigating war crimes and human rights violations and providing periodic reports with the purpose of holding perpetrators accountable under international humanitarian law and human rights law.

Far too long the State of Hawai‘i and its Counties, whether by mistake or design, mischaracterized the Council of Regency as a self-declared sovereignty group. Rather, it is assured to be the interim government of the Hawaiian Kingdom established by proclamation on February 28, 1997, and is vested with the rights and powers afforded to a government of an occupied State in accordance with international humanitarian law. A recent documentary, which won several awards at independent film festivals, covers the Council of Regency and its strategy to engage the prolonged occupation of the Hawaiian Kingdom.

IMPORTANT NOTE: The Royal Commission of Inquiry’s mandate is to investigate war crimes and human rights violations and report its findings to countries or international venues for prosecution, which is evidence based. Because war crimes have no statutes of limitations, investigations can occur within 80 years after the commission of the crime because of human longevity. In other words, the Royal Commission can investigate crimes that have been committed 80 years ago. Because war crimes are considered a peremptory norm, which is a serious violation of international law, all countries are obligated to prosecute the alleged perpetrators through their national institutions and may invoke universal jurisdiction. For those countries that a parties to the Rome Statute of the International Criminal Court, they are obligated to prosecute alleged perpetrators who enter their territories for war crimes committed outside of their territory after 2002. According to Article 1 of the Rome Statute, the signatory countries must first investigate and prosecute war crimes, leaving the International Criminal Court the court of last resort. This is called complementary.

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.

Can Hawai‘i Successfully Live with COVID-19 Without a Vaccine? The Answer is Yes But Under the International Law of Occupation

On MSNBC’s Meet the Press, Dr. Michael Osterholm, Director of the Center for Infectious Disease Research and Policy at the University of Minnesota, said in an interview with host Chuck Todd, “What we have to do is figure out how not just to die with the virus, but also how to live with it. And we’re not having that discussion.”

Instead, the discussion around the world has been focused on a vaccine, which some have said could be done within 12 to 18 months from now. But Dr. Rick Bright, former director of the U.S. government’s Biomedical Advanced Research and Development Authority, told members of Congress, “It’s critical to note that when we say 12 to 18 months, that doesn’t mean for an FDA-approved vaccine, it means to have sufficient data and information on the safety and immunogenicity, if not efficacy, to be able to use on an emergency basis, and that is the consideration we have in mind when we talk about an accelerated timeline.”

World Health Organization’s emergencies expert, Dr. Mike Ryan, said on an online briefing, “It is important to put this on the table: this virus may become just another endemic virus in our communities, and this virus may never go away.”

Even after flattening the curve of infections throughout the islands, health experts are expecting a second wave. Unless preventive measures are taken to effectively control the entry of the virus from foreign countries, which includes the United States, a second wave could be devastating on the health and well-being of Hawai‘i’s people and the economy.

A New Legal Reality for Hawai‘i Has Emerged

Before the pandemic crisis reached the islands, undeniable facts had begun to reveal that Hawai‘i has been under a prolonged American occupation since January 17, 1893 after United States troops invaded the Hawaiian Kingdom and overthrew its government.

People have been under the false impression that since Queen Lili‘uokalani was overthrown so was the country. International law distinguishes between the government of the country and the country itself. It was the Queen as head of the government that was illegally overthrown by the United States and not the country the Hawaiian Kingdom.

This would be analogous to the United States military defeat of Saddam Hussein’s Iraqi government in Baghdad on April 9, 2003. The overthrow of the government did not affect the status of Iraq as a country, but it did bring the United States, as an occupying power, under the international law of occupation.

For over a century, the United States violated the international law of occupation in the Hawaiian Kingdom which led to the commission of war crimes and human rights violations committed with impunity.

International awareness of Hawai‘i’s occupation was accelerated due to the Larsen v. Hawaiian Kingdom arbitral proceedings held at the Permanent Court of Arbitration in The Hague from 1999-2001 that was based on the American occupation and the unlawful imposition of American laws within Hawaiian territory. Of significance, the Permanent Court acknowledged the continued existence of the Hawaiian Kingdom as a State, which is another word for country, and the Hawaiian Council of Regency as its interim government.

On the subject of Hawai‘i’s occupation and the commission of war crimes, Professor William Schabas, recognized expert in international criminal law, wrote: “In addition to crimes listed in applicable treaties, war crimes are also recognized under customary international law. Customary international law applies generally to States regardless of whether they have ratified relevant treaties. The customary law of war crimes is thus applicable to the situation of Hawai‘i.” Schabas also stated, “Statutory limitation of war crimes is prohibited by customary law.”

Also commenting on the prolonged occupation, international human rights expert, Professor Federico Lenzerini, stated, “among the rights which may be supposed of having been violated by the United States as a result of the occupation of the territory of the Hawaiian Kingdom particular attention should be devoted to those inherently connected to the violations of international humanitarian law determined by the occupation. These violations…would first of all need to be treated as war crimes, which are primarily to be considered under the lens of international criminal law.”

To read Professors Schabas’ and Lenzerini’s full opinions on war crimes and human rights violations and the role of the Hawaiian Royal Commission of Inquiry download the free eBook The Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom.

What effect does this new legal reality have in dealing with COVID-19? The simple answer is that international law broadens the scope as to how to deal with the virus that did not exist before. In particular, it provides for legal authority to close the borders.  

Here is a relevant Hawaiian proverb. “I ke au i hala ka lamaku o ke ala i ke kupukupu.” (The past is the beacon that will guide us into the future)

Why the International Law of Occupation Applies to Hawai‘i

The silver lining in the international law of occupation takes the position that Hawai‘i, which is known internationally as the Hawaiian Kingdom, remains its own separate country despite over a century of an illegal occupation by the United States. As an occupied country, decisions are not made by inept leadership at the United States federal level but rather by the rules of international humanitarian law, which includes the law of occupation, by those who are in effective control of Hawaiian territory.

There are two important tenets of the law of occupation. First, is the duty of the occupying power or its proxy to administer the laws of the Hawaiian Kingdom, and, second, the protection of the health and well-being of the Hawaiian Kingdom’s inhabitants that are both Hawaiian subjects and resident aliens. Occupations by foreign countries are regulated by the 1907 Hague Regulations and the 1949 Fourth Geneva Convention.

However, before the Hague Regulations and the Geneva Convention can be applied over the Hawaiian Islands, the occupying power or its proxy has to be in effective control of the territory. For without effective control, there would be no enforcement mechanism for ensuring effective governance. Article 42 of the Hague Regulations states that “Territory is considered occupied when it is actually placed under the authority of the hostile army.”

Article 42 has three requisite elements before the duty to administer the laws of the occupied country becomes obligatory upon the occupying power or its proxy. First, there must be the presence of a foreign country’s forces; second, the exercise of authority over the occupied territory by the foreign country or its proxy; and, third, the non-consent by the occupied country’s government.

In March of 1893, President Grover Cleveland initiated a presidential investigation into the overthrow of the government of the Hawaiian Kingdom on January 17, 1893 and the creation of the provisional government. After completing the investigation, he notified the Congress of his findings on December 18.

In his message to the Congress, he stated, that a protest “signed by the Queen and her ministers at the time she made way for the provisional government, which explicitly stated that she yielded to the superior force of the United States, whose Minister had caused United States troops to be landed at Honolulu and declared that he would support such provisional government.”

As to the status of the provisional government, the President stated, “I believe that a candid and thorough examination of the facts will force the conviction that the provisional government owes its existence to an armed invasion by the United States. Fair-minded people with the evidence before them will hardly claim that the Hawaiian Government was overthrown by the people of the islands or that the provisional government had ever existed with their consent.”

The President also concluded, “In this state of things if the Queen could have dealt with the insurgents alone her course would have been plain and the result unmistakable. But the United States had allied itself with her enemies.”

The President entered into an agreement of restoration with the Queen as head of the Hawaiian government but political wrangling in the Congress prevented the restoration because proponents in the Congress wanted Hawai‘i as a military outpost.

The only change in the Hawaiian governmental infrastructure was the Queen and her Cabinet that was replaced by 18 insurgents calling themselves the Executive and Advisory Councils. Everyone else in the governing body remained but were coerced into signing oaths of allegiance to the regime while United States military forces were present.

A colloquial term for the illegal overthrow would be a “car-jacking.” All that was changed was the driver and not the car.

Five years later on July 7, 1898, during the Spanish-American War, the Congress passed a law purporting to have annexed the Hawaiian Islands. The United States took control of their insurgents, who were then calling themselves the Republic of Hawai‘i, in 1900 when Congress renamed them as the Territory of Hawai‘i. In 1959, the Congress renamed the Territory to the State of Hawai‘i. What changed was merely the names of purported governments and not the legality of the situation.

A basic principle of United States law is that legislation has no legal effect outside of its territory. In other words, the Congress could no more annex the Hawaiian Islands in 1898 by enacting a law than it could no more annex Canada today by enacting a law. Acquisition of foreign territory is a matter of international law and is done by a treaty. There is no treaty of cession between the Hawaiian Kingdom and the United States.

In 1936, the United States Supreme Court, in United States v. Curtiss Wright Export Corp, made clear, “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 operation of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.”

Mindful of the territorial limits of American legislation, the Office of Legal Counsel for the U.S. Department of Justice, in 1988, concluded “it is therefore unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution.” If it was unclear how the Congress could annex a foreign country, it would be equally unclear how the Congress could have created the Territory of Hawai‘i in 1900 or the State of Hawai‘i in 1959 in a foreign country.

Instead of a treaty, the United States embarked on an effective policy of denationalization through Americanization in the schools throughout the kingdom. It was here that young school children were brainwashed into believing that the Hawaiian Islands had become a part of the United States and that English was the new language. Within three generations, Hawaiian national consciousness was replaced with American national consciousness and the greatest travesty of international law would go unnoticed for over a century.

For a comprehensive explanation of the overthrow and the subsequent American occupation visit the National Education Association’s website neaToday that published three articles on the subject. The “NEA’s 3 million members work at every level of education—from pre-school to university graduate programs. NEA has affiliate organizations in every state and in more than 14,000 communities across the United States.”

How Does the Law of Occupation Apply to COVID-19 in Hawai‘i

The United States presence in the Islands is illegal and its current form of governance has been unlawfully imposed for over a century. But to apply international laws, there needs to be an understanding of the current system, albeit unlawful, in order to understand how to transform the State of Hawai‘i into something recognizable under international law in order begin to comply with the laws of occupation so that administration of the laws of the Hawaiian Kingdom can begin.

The United States is a multitiered governing system called a federation. At the top is the national or federal government, headed by a president, and below it are the various States that are headed by governors. In the case of the State of Hawai‘i, there are the four County governments below the State who are headed by mayors.

As a proxy of the United States, only the State of Hawai‘i and its Counties, and not the federal government, are in effective control of Hawaiian territory. By being in effective control, the State of Hawai‘i and the Counties meets the requirement of effectiveness under Article 42 of the Hague Regulations.

Under Article 43 of the Hague Regulations and Article 64 of the Geneva Convention, the State of Hawai‘i and its Counties are obligated to administer the “laws in force in the country,” which in this case would be the laws of the Hawaiian Kingdom as it stood before the illegal overthrow of the Hawaiian Government on January 17, 1893.

With particular focus on infectious diseases, Article 54 of the Geneva Convention states that the occupying power or its proxy has the obligation to ensure and maintain, “public health and hygiene in the occupied territory, with particular reference to the adoption and application of the prophylactic and preventative measures necessary to combat the spread of contagious diseases and epidemics.”

Professor Marco Sassòli, an expert on the law of occupation, explains, “The expression ‘laws in force in the country’ in Article 43 refers not only to laws in the strict sense of the word, but also to the constitution, decrees, ordinances, court precedents (especially in territories of common law tradition), as well as administrative regulations and executive orders.” Administrative regulations that would specifically apply to the pandemic would include those of the Hawaiian Kingdom’s Board of Health and the Board of Immigration.

As smallpox and COVID-19 are both viruses, there is much to learn from the Hawaiian Kingdom’s past. Like COVID-19, the smallpox virus would spread from person to person by inhaling respiratory droplets or contact with infected persons or material. Smallpox was not eradicated until 1977.

In the nineteenth century, inoculation was the form of a vaccine, but this was a preventive measure. Also, inoculation was not full proof but it was all the nineteenth century had at the time. Once a person became infected there was no medical treatment and all that could be done was to provide hospital care until the virus ran its course. Once an outbreak occurred, quarantine was the only effective response in order to contain the virus. According to the World Health Organization, smallpox had “an incubation period of between 7 and 17 days after exposure and only becomes infectious once the fever develops,” and had a 30% death rate.

Living with Infectious Viruses in the Hawaiian Kingdom

The 1853 smallpox epidemic in the Hawaiian Kingdom was the most devastating health disaster in Hawai‘i’s history with over 5,000 deaths, which meant roughly 16,500 people were infected. The infections and death were predominantly in the city of Honolulu.

Hawaiian historian, Samuel Kamakau, who witnessed the ravage, wrote, “From the last week in June until September the disease raged in Honolulu. The dead fell like dried kukui twigs tossed down by the wind. Day by day from morning till night horse-drawn carts went about from street to street of the town, and the dead were stacked up like a load of wood, some in coffins, but most of them just piled in, wrapped in cloth with heads and legs sticking out.”

The government reported, “No new cases of smallpox has been reported. Those already existing are doing well. The health of the city is otherwise generally good.” After two-months the epidemic passed and Honolulu was virus free.

This was a test for the newly created Smallpox Commission that was established by statute on May 16, 1853. The statute’s preamble stated, “Whereas, the Small-Pox is believed to exist in this Kingdom, and humanity and a just regard to life require that all who are affected with that disease should receive strict care and attention, and whereas it is desirable that the disease shall not extend through the Islands.” Following the outbreak, an Act was passed by the legislature on August 10, 1854 making “compulsory the practice of vaccination throughout the Hawaiian Islands.” The Board of Health eventually assumed complete control in response to future smallpox outbreaks.

After the King, in Privy Council, in 1869 concluded that smallpox was endemic to the west coast of the United States and posed a direct threat to the health and well-being of Hawai‘i’s people, Mokuakulikuli—known today as Sand Island, was designated as the Quarantine Ground. The Hawaiian Gazette reported, “Altogether, about ninety persons can be comfortably accommodated at the quarantine buildings.”

Vaccinations in the nineteenth century were not full proof and another outbreak of smallpox hit Honolulu in 1881 that lasted just over five months. 282 people lost their lives.

There were hard lessons learned from the second outbreak that eventually culminated in the Board of Health’s adoption of a more comprehensive and authoritative quarantine regulations in 1891. The regulations focused on incoming passenger and merchant ships arriving from foreign ports.

Under these quarantine regulations, full authority and centralized control was vested in the Board of Health to make on the spot decisions that had the backing of the Hawaiian government through enforcement. The regulations were driven by medical experts and not politicians.

The regulations also provided who was responsible for the costs of the quarantine, which would not be incurred by the Hawaiian government. If payment was refused, the ship and/or assets were seized and liquidated to pay for the costs the government incurred.

1891 Quarantine Regulations

  1. The Board of Health may, from time to time, establish the quarantine to be performed by all vessels arriving at any port of the Kingdom, and may make such quarantine regulations as may be deemed necessary for the public health and safety. (Civil Code, Section 292).
  2. The quarantine regulations so established shall extend to all persons, goods and effects, arriving in such vessels, and to all persons who may visit or go on board of the same. (Civil Code, Section 293).
  3. Notice shall be given of such quarantine regulations by publication in the manner provided in Section 284 of the Civil Code; after which notice, any person violating such quarantine regulations shall be fined a sum of not less than five dollars (equivalent to $144.04 today) nor more than five hundred dollars (equivalent to $14,403.78). (Civil Code, Section 294).
  4. Any vessel which shall refuse to submit to quarantine or which shall leave the quarantine ground before the expiration of the quarantine imposed upon her, or which shall be the means of clandestinely introducing into this Kingdom any contagious disease, or any disease dangerous to the public health, shall be liable to seizure, confiscation and sale for the benefit of the public treasury. (Civil Code, Section 295).
  5. The Board of Health or its agents may at any time cause a vessel arriving at any port in this Kingdom, when they deem such vessel, or any part of its cargo, to be foul, infected, or in any way dangerous to the public health, to be removed to the nearest quarantine ground, and to be thoroughly purified at the expense of the owners, consignees or persons in possession of the same; and they may also cause all persons arriving in or going on board of such vessel, or handling such infected cargo, to be removed to some place of safety, there to remain under their orders. (Civil Code, Section 296).
  6. If any master, seaman, or passenger, belonging to a vessel on board of which there may be at the time, or may have lately been, or suspected to have been any infectious or contagious disease, or that which may become the source of such disease, or which may have been at or have come from a port where any infectious or contagious disease prevailed that may endanger the public health, shall refuse to make answer on oath to such questions as may be asked him, relating to said disease, or possible source of disease, by the Board of Health or its agents, such master, seaman, or passenger, so refusing, shall be punished by fine not exceeding five hundred dollars (equivalent to $14,403.78), or be imprisoned with hard labor for not more than twelve months, or both, at the discretion of the Court. (Civil Code, Section 297).
  7. Upon arrival of any vessel making the usual marine signal for a pilot, it shall be the duty of pilot or pilots at the port, to immediately put off such vessel, taking with him a white and yellow flag, to inquire into the sanitary condition of the ship and the health of those on board; and upon being assured to satisfaction that there is no danger to be apprehended from any contagious disease, he shall board the vessel, but not otherwise. (Civil Code, Section 594).
  8. Upon boarding the vessel, the pilot shall present to the commanding office a heal certificate to be signed by him, and in case the same shall be signed, the white flag shall be immediately hoisted at the main, and the pilot shall be at liberty to bring the vessel into port; but in case the commanding officer shall decline to sign the certificate of health, the pilot shall deliver to him a yellow flag, which the master shall hoist at the main, and the vessel shall be placed in quarantine outside of the harbor, and anchored where the pilot may direct. Any pilot who shall conduct a vessel into any port in this Kingdom, in violation of provisions of this section, or any of the regulations of the Board of Health, or knowing that there is just ground to suspect the existence of contagion on board, shall be liable to fine not exceeding five hundred dollars (equivalent to $14,403.78); and every vessel, the master of which shall have declined to sign a certificate of health, as above prescribed, shall upon entering port, be liable to seizure, confiscation and sale. (Civil Code, Section 595).
  9. If the Pilot, after boarding any vessel, shall discover the existence of any infectious or contagious disease, be shall not return on shore without the permission of the Board of Health; neither shall it be lawful for any of the ship’s company or passengers to land, or communicate with the shore, or to board any other vessel without the permission of the Board of Health, or the Collector, under penalty of a fine not exceeding five hundred dollars (equivalent to $14,403.78). (Civil Code, Section 596).
  10. The Board of Health and its agents may from time to time, at their discretion, appoint certain places within or near any harbor or anchorage in the Hawaiian Islands, for the performance of quarantine, where all or any vessel or vessels, crews, passengers and other person on board thereof, shall perform the same; and also may appoint stations apart from such vessels, where any persons or things shall be detained for the performance of quarantine.
  11. Every vessel arriving off any port of these Islands, may be boarded by the Port Physician, who shall examine personally the crews and passengers, and if satisfied that no contagious or infectious disease, that is dangerous to the public health, exists, or has recently existed on board, he shall give the Captain a certificate to that effect; but if not so satisfied, he shall give the Captain a certificate to that effect; but if not satisfied, he shall order the Pilot to anchor the vessel outside of the harbor and notify the Board of Health of the facts. No vessel may enter the harbor or any port of this Kingdom, when forbidden to do so by the Port Physician of said port.
  12. All expenses incurred on account of any person, vessel, or goods, shall be paid by such person, vessel or owner, or consignee of such vessel or goods, the vessel causing them not receiving a permit to quit the port until said expenses are paid.
  13. In every case where a vessel is boarded by the Port Physician, his fees and expenses shall be paid by the vessel or its representatives; and if said vessel or its representatives decline to pay these fees, the Collector of Customs shall collect them and shall not grant a clearance to said vessel until such fees and expenses shall have been paid.
  14. The resident physicians who are, or shall be appointed by the Government to take charge of the various districts of these Islands, except Honolulu, are hereby appointed by the Board of Health to act as Port Physicians for all ports in their several districts.
  15. If a vessel, passing on to another port or country, wish to land persons or goods in any port of these islands, the said vessel being obliged to undergo quarantine under the provisions of the previous Sections and these regulations, the person or goods entering said ports of these Islands may be landed and shall undergo such quarantine or other treatment as the Board of Health shall order, after which the vessel shall be free to depart, when her quarantine is raised.
  16. On the arrival of a vessel at any port of this Kingdom, coming from a port known to be infected with cholera, yellow fever, smallpox, scarlet fever, plague or any other contagious or infectious disease deemed by the Board of Health to be dangerous to public health, although no case of such disease may have broken out on board during the voyage, the officers, crew and passengers of such vessel may be kept in quarantine until a period of eighteen days shall have elapsed from the time of her leaving said infected port; and the vessel herself and her cargo shall undergo such process of cleansing and disinfection as the Board of Health shall judge necessary.
  17. On the arrival of a vessel at any port of this Kingdom which has or has had on board during the voyage, any person sick with smallpox or scarlet fever, (1,) the sick persons, if passengers for that port, shall be sent to the quarantine hospital for such a period as may be deemed necessary; (2,) the officers, crew, well passengers and other persons on board shall be placed in quarantine apart from the aforesaid, for such period as may be deemed necessary by the Board of Health; (3,) and the whole or part of the ship and its cargo shall undergo such fumigation and disinfection as the Board may deem necessary. But with regard to all sick passengers other than passengers for that port, and with regard to all persons sick with cholera, yellow fever or plague, and with regard to all persons sick with cholera, yellow fever or plague, the Board will not consider itself bound to receive them or to take care of them in quarantine.
  18. No person shall leave or visit any quarantined vessel, or any house, enclosure or place set apart for quarantine purposes; unless by written permission of the President of the Board of Health, or some agent authorized by said Board.
  19. Under no circumstances provided for by the last preceding regulation, shall clothing, personal baggage, or any goods be allowed to be landed from any vessel or removed from any place, before having undergone such disinfecting process as may be ordered by the Board of Health; nor shall letters or mails be landed in Honolulu except by written permission of the President of the Board of Health, or in any other district of the Kingdom except by permission of the District Port Physician.
  20. Vessels arriving from an Asiatic port, or from any port reported to be infected with cholera, yellow fever, or smallpox shall not enter any port of this Kingdom, though such vessels may show a clean bill of health, until special permission is granted by the Board of Health for entry into the port of Honolulu, or by a duly accredited agent of the Board for entry at any other port in the Hawaiian Islands. Such vessels shall be anchored on quarantine ground, at such places as may be chosen by the Pilot under direction of the Port Physician, and remain at such anchorage until changed or admitted into port by the Board of Health.
  21. The Board of Health may order the fumigation and disinfection of all personal effects from Asiatic ports.
  22. Any vessel placed in quarantine shall fly a yellow flag at the main by night and shall keep such signals hoisted until released from quarantine.
  23. It shall be the duty of the Pilot to deliver to the commanding officer of any vessel he may board a copy of the aforesaid quarantine regulations, with which he shall be provided by the Board of Health for that purpose.

Although these regulations were applied to arriving ships throughout the kingdom, they are applicable today to airplanes arriving throughout the various airports as well.

If the United States or its proxy the State of Hawai‘i was complying with the international law of occupation by administering the laws of the Hawaiian Kingdom, COVID-19 would have been detected much sooner and quarantine measures would have taken effect followed by a lockdown of the borders to prevent foreign travelers from re-introducing the virus.

Hawaiian Bureau of Immigration and the Authority to Deny Entry

The legislature in 1864 established a Bureau of Immigration within the Ministry of the Interior. Its purpose was “superintending the importation of foreign laborers, and the introduction of immigrants.” The Bureau came under the control of the Minister of the Interior who was “assisted by a committee of five members of the Privy Council of State, to be appointed by His Majesty the King for that purpose.”

On January 14, 1880, the Bureau enacted an ordinance regulating immigration. In particular, Section 7 of the ordinance provided, “Immigrants not desiring to make engagements for labor shall, before leaving the depot, furnish to the President of the Board of Immigration satisfactory evidence that they will not become vagrants or a charge on the community for their support.”

Section 7 was the basis for the denial of a petition for writ of habeas corpus to the Hawaiian Kingdom Supreme Court by two passengers that completed quarantine for smallpox but were still detained by the Minister of the Interior because they did not satisfy section 7 of the regulations of the Board of Immigration.

Before the second outbreak of smallpox in Honolulu, the steamship Septima arrived in Honolulu from China on February 13, 1880. It was determined by the Board of Health that the virus existed amongst the passengers and they were removed to Sand Island for quarantine.

After they were cleared of smallpox by the Board of Health, authority was then passed over to the Board of Immigration. They were further detained by the Minister of the Interior until each of the passengers provided evidence that “they will not become vagrants or a charge on the community for their support.”

Two of the passengers from China refused to agree with section 7 of the regulations and claimed that the ordinance, itself, was unlawful because it was not a law passed by the legislature. In the Matter of Chow Bick Git and Wong Kuen Leong, the Hawaiian Kingdom Supreme Court, in 1881, not only denied the petition by upholding the Board of Immigration’s ordinance as constitutional, it also addressed the authority of the Hawaiian government to deny entry of foreigners.

After the Court cited Vattel’s Law of Nations and the passenger cases before the United States Supreme Court on a State’s authority to deny entry into its territory by foreigners, Associate Justice Albert F. Judd provided a separate opinion in agreement with the Chief Justice. He further stated:

“the State has a right to impose such terms and conditions precedent to the entry of foreigners within its borders as in its opinion are essential to its welfare, peace and good government. I see no reason why a sovereign State may not prescribe these terms, even in the absence of municipal law declaring what they shall be. The State may say to those who seek to become residents within its territory, ‘We will admit you, providing you accede to these terms which we deem to be reasonable and necessary.’”

Living with COVID-19 in the Hawaiian Islands

The American response of “flattening the curve” is an American policy to prevent its hospitals from being overwhelmed until a vaccine can be found. A full proof smallpox vaccine did not exist until the twentieth century where the last natural outbreak of smallpox in the United States occurred in 1949. In the meantime, the Hawaiian Kingdom had to live with the virus and its defense was hospital care and quarantine measures.

Instead of “flattening the curve,” Hawai‘i, like in the nineteenth century, should focus on “eliminating the virus” throughout the Islands by closing the borders until the virus completes its infectious incubation period. During this time, test, tracing and quarantine continues.

In an interview on KITV Island News, Dr. Bruce Anderson from the State of Hawai‘i Board of Health acknowledged that countries that have good quarantine programs and who have the ability to control their borders are relying largely on quarantine and not testing.

New Zealand, like Hawai‘i, is an island country that can control their borders much more effectively than landlocked States of the United States. The ocean now becomes a moat for the defense of a castle.

Advised by epidemiologists, Prime Minister Jacinda Ardern announced on March 14 that almost everyone coming into New Zealand would have to self-quarantine for 14 days. It was one of the earliest moves to isolate a country in the world. A total lockdown for the country followed on March 26 with a moratorium on domestic travel.

The government eventually closed its borders except for “New Zealand citizens, permanent residents and residents with valid travel conditions.” It later allowed transiting travelers to certain countries but they were required to remain in the airport and if the transit flight would be more than 24 hours they cannot enter New Zealand.

The Prime Minister explained, “We’re going hard and we’re going early. We only have 102 cases, but so did Italy once.” The goal of the New Zealand government, with the closing of the borders, was to not have any more community transmissions.

By late April, infections dropped to seven, which motivated the government to ease on its domestic lockdown.  On April 21, the Prime Minister told Radio New Zealand, “We can say with confidence that we do not have community transmission in New Zealand. The trick now is to maintain that.”

The Prime Minister, being advised by epidemiologists, said she was not seeking to eradicate the virus from the country but rather have “zero tolerance for cases.” Her advisors stated their approach would be similar to a response to measles with swift response of medical treatment for those infected, contact tracing and isolation. This is how the Hawaiian Kingdom lived with infectious viruses in the nineteenth century that arrived into the country, swiftly moving to identify infected persons, provide care and quarantine.

According to New Zealand’s Ministry of Health, “effective border control becomes even more important than before. As people within New Zealand are able to travel and mix more freely, the ability of COVID-19 to spread potentially increases. So we must keep it out at the border. We already know the border is one of the main sources of new cases of COVID-19.”

Hawai‘i should follow New Zealand’s lead but it first needs to comply with the law occupation as a governing body recognizable under international law. Once COVID-19 is eliminated in the islands and the borders remain closed under the regulations of the Hawaiian Board of Immigration, interisland flights can resume and Hawai‘i can get back to pre-pandemic life with some adjustments just as the country did after the 1881 breakout of smallpox. 

No Choice for the State of Hawai‘i to Comply with the Law of Occupation

Since 1898, the United States, through its proxy the Territory of Hawai‘i since 1900 and now the State of Hawai‘i since 1959, has been illegally imposing its municipal laws throughout the Hawaiian Islands. Customary international law refers to this unlawful imposition of one country’s laws into the territory of an occupied country as “usurpation of sovereignty,” which is a war crime.

“In the situation of Hawai‘i, the usurpation of sovereignty would appear to have been total since the beginning of the twentieth century,” says Professor Schabas. He argues “that usurpation of sovereignty is a continuous offense, committed as long as the usurpation of sovereignty persists.”

Professor Schabas states that the criminal act, or actus reus, of usurpation of sovereignty “would consist of the imposition of legislation or administrative measures by the occupying power that go beyond those required by what is necessary for military purposes of the occupation.” In other words, if a person or persons imposed American legislative or administrative measures in Hawai‘i you committed the war crime.

The volitional element, or criminal intent, of usurpation of sovereignty,” according to Professor Schabas, is that the “perpetrator was aware of factual circumstances that established the existence of the armed conflict and subsequent occupation.” What is important is not just the criminal act but was there criminal intent to commit the criminal act.

If there was no awareness of the American occupation, there was no intent for prosecution purposes. In other words, was Governor David Ige aware of Hawai‘i’s occupation?

On three separate occasions in June of 2015, Governor Ige’s Chief of Staff Mike McCartney met with Dr. Keanu Sai who was at the time the attorney-in-fact for two war crime victims who were in communication with the Swiss Attorney General’s office for war crimes. Dr. Sai conveyed to McCartney that his clients were willing to forgo filing war crime complaints if the Governor would take corrective measures to address the circumstances of the two victims.

The following month on July 2, Dr. Sai provided McCartney a Report that covered what was discussed in the three meetings and a proposed remedy in line with international law and the relevant rules of the States of Hawai‘i. The opening statement in Dr. Sai’s cover letter stated:

“Enclosed please find a report I authored, titled Military Government: Transformation of the State of Hawai‘i, for your consideration. As you know after we met on three previous occasions, this is a serious matter with profound political and economic consequences. After our last meeting I scoured through the laws and customs of war and international humanitarian law, and I discovered that the State of Hawai‘i is fully authorized to declare itself as a Military Government in accordance with provisions in the State Constitution and the laws and customs of war during occupation.”

McCartney, for whatever reason, did not follow up with Dr. Sai. What is not clear is why there was no follow up. What is unquestionably clear, for the purpose of criminal culpability under international law, is that Governor Ige’s administration was “aware of factual circumstances that established the existence of the armed conflict and subsequent occupation” for the past five years.

Governor Ige was also made aware of Hawai‘i’s occupation by Maui County Council member Tamara Paltin who was communicating with University of Hawai‘i President David Lassner regarding the proposed building of the thirty-meter telescope on the summit of Mauna Kea. Governor Ige and the Attorney General were carbon copied in the communications.

How the State of Hawai‘i Will Comply with the Law of Occupation

In decision theory, a negative-sum game is where everyone loses. Any decision from a loss can only have the effect of a loss—a lose-lose situation. The State of Hawai‘i is presently operating from a position of no lawful authority, and everything that it has done or that it will do is unlawful. There can be no fruit from a poisonous tree. The rapidly growing knowledge and awareness of the prolonged occupation of Hawai‘i has the effect of causing the State of Hawai‘i to speedily descend and crash.

The State of Hawai‘i has found itself in a mammoth negative-sum game. In order to stave off the inevitable, the Council of Regency and the State of Hawai‘i must cooperate so that positive-sums are realized.  The law of occupation provides the legal basis for the State of Hawai‘i to realize positive-sums.

Critical to the administration of Hawaiian law is the establishment of a Military government recognizable under international law, which is “defined as the supreme authority exercised by an armed occupying force over the lands, properties, and inhabitants of an enemy, allied, or domestic territory.”

The establishment of a Military government is not limited to the U.S. military, but to a proxy of the Occupying power that is in effective control of occupied territory. Section 4(b), U.S. Army Field Manual FM 27-5, provides that an occupying Power “has the duty of establishing [Military government] when the government of such territory is absent or unable to function properly.”

What distinguishes the U.S. military stationed in the Hawaiian Islands from the State of Hawai‘i is that the State of Hawai‘i, as a proxy of the United States, is in effective control of the majority of Hawaiian territory. U.S. military sites number 118 that span 230,929 acres of the Hawaiian Islands, which is only 20% of the total acreage of Hawaiian territory. The balance of Hawaiian territory is controlled by the State of Hawai‘i and its Counties.

As a proxy for the Occupying power, the State of Hawai‘i has no choice but to establish itself as a Military government, which is allowable under the laws of occupation, to provisionally serve as the administrator of the “laws in force in the country.”

According U.S. Army FM 27-10, “Military government is exercised when an armed force has occupied such territory, whether by force or agreement, and has substituted its authority for that of the sovereign or previous government. The right of control passes to the occupying force limited only by the rules of international law and established customs of war.”

The proclamation for the establishment of a Military government would be done in like fashion to the declaration of martial law for the Hawaiian Islands from December 7, 1941 to April 4, 1943. Governor Joseph Poindexter and Lieutenant General Walter Short relied on section 67 of the 1900 Territorial Act as the basis to establish a Military government. The Governor appointed General Short as the Military Governor in charge of the Military government.

The 1941 proclamation, however, required the prior approval of President Franklin D. Roosevelt, since the Governor of the Territory of Hawai‘i was a Presidential appointee.

When the Territory was transformed to the State of Hawai‘i in 1959, section 67 was replaced by Article V, section 5 of the State of Hawai’i Constitution, which gives the Governor full and complete authorization to declare the establishment of a Military government without the prior approval of the President.

In order to transform the State of Hawai‘i into a Military government, the Governor will need to decree, by proclamation, the establishment of a Military government in accordance with Article V, section 5 of the State of Hawai’i Constitution, which will bring it in conformity with section 5(3) of FM 27-5 that states the purpose of a Military government is to “fulfill the obligation of the occupying force under international law.”

Additionally, the proclamation should also decree that all State of Hawai‘i judicial and executive officers and employees remain in operation with the exception of the legislative bodies to include the Legislature and County Councils. This reasoning is because “since supreme legislative power is vested in the military governor, existing legislative bodies will usually be suspended.”

Although the Council of Regency recognized “the State of Hawai‘i and its Counties, for international law purposes, as the administration of the Occupying Power whose duties and obligations are enumerated in the 1907 Hague Convention, IV, the 1949 Geneva Convention, IV, and international humanitarian law,” by proclamation on June 3, 2019, it failed to transform itself into a Military government.

A condition of the recognition, as stated in the proclamation, was “that the State of Hawai‘i and its Counties shall preserve the sovereign rights of the Hawaiian Kingdom government, and to protect the local population from exploitation of their persons and property, both real and personal, as well as their civil and political rights under Hawaiian Kingdom law.”

The State of Hawai‘i and its Counties have not preserved the sovereign rights of the Hawaiian Kingdom and has continued to exploit the local population by imposing the legislative and administrative measures of the United States. Once the State of Hawai‘i transforms itself into a Military government, the recognition takes effect.

Until such time, members of the State of Hawai‘i and its Counties could find themselves under investigation for war crimes by the Royal Commission of Inquiry that was established by the Council of Regency on April 17, 2019.

The mandate of the Royal Commission is “to investigate the consequences of the United States’ belligerent occupation, including with regard to international law, humanitarian law and human rights, and the allegations of war crimes committed in that context. The geographical scope and time span of the investigation will be sufficiently broad and be determined by the head of the Royal Commission.”

The Royal Commission recently published an eBook Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom, as well as its first preliminary report The Material Elements of War Crimes and Ascertaining the Mens Rea.

Bringing Hawaiian Kingdom Law Up To Date

Because United States laws, to include the current federal laws and laws of the State of Hawai‘i and its Counties, are unlawful, the only valid laws in Hawai‘i are the laws of the Hawaiian Kingdom, which include “the constitution, decrees, ordinances, court precedents, as well as administrative regulations and executive orders.” 

In order to bring these laws up to date, the Council of Regency proclaimed on October 10, 2014, that “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 assembled, 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.”

Once the Military government has been proclaimed, the Governor should follow up with a supplemental proclamation announcing the Council of Regency’s proclamation of provisional laws.

Reality Check

These are serious times in Hawai‘i for those in power. Since 1893, this power has been unchecked and unbridled but now under the international law of occupation and international criminal law the rule of law has now taken its place front and center.

The decision to transform the State of Hawai‘i into a Military government is not a political decision. It is a decision made in light of indisputable facts, international law, and awareness of the American occupation of a sovereign State.

As Professor Schabas stated, which is also acknowledged by the International Criminal Court, there “is no requirement for a legal evaluation by the perpetrator” of Hawai‘i’s occupation. Rather, there “is only a requirement for the awareness of the factual circumstances that established the existence” of Hawai‘i’s occupation.

Without evidence that denies the continued existence of the Hawaiian Kingdom, international criminal law is a vice grip on individuals where the potential for the prosecution of war crimes can last up to a person’s elderly years. As Professor Schabas stated, “human longevity means that the inquiry into the perpetration of war crimes becomes abstract after about 80 years, bearing in mind the age of criminal responsibility.”

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.

National Lawyers Guild Supports Council of Regency’s Strategic Plan

Posted on the National Lawyers Guild’s website on January 13, 2020.

The National Lawyers Guild (NLG), the oldest and largest progressive bar association in the United States, calls upon the United States to immediately begin to comply with international humanitarian law in its prolonged and illegal occupation of the Hawaiian Kingdom since 1893. As the longest running belligerent occupation of a foreign country in the history of international relations, the United States has been in violation of international law for over a century.

THE HAWAIIAN KINGDOM AS A SOVEREIGN AND INDEPENDENT STATE

On November 28, 1843, Great Britain and France jointly recognized the Hawaiian Kingdom as a sovereign and independent State, which was followed by formal recognition by the United States on July 6, 1844. By 1893, the Hawaiian Kingdom maintained over 90 legations (embassies) and consulates throughout the world, to include a legation in Washington, D.C., and consulates in the cities of New York, San Francisco, Philadelphia, San Diego, Boston, Portland, Port Townsend and Seattle. The United States also maintained a legation and consulate in Honolulu.

The Hawaiian Kingdom also held treaties with the Austro-Hungarian Empire, Belgium, Bremen, Denmark, France, Germany, Great Britain, Hamburg, Italy, Japan, Luxembourg, Netherlands, Portugal, Russia, Samoa, Spain, Switzerland, the unified Kingdoms of Sweden and Norway, and the United States. It was also a member of the Universal Postal Union.

As a constitutional monarchy, the kingdom provided universal healthcare for the aboriginal Hawaiian population since 1859 with the establishment of Queen’s Hospital, and it became the fifth country in the world to provide compulsory education for all youth in 1841. This predated compulsory education in the United States by seventy-seven years and its literacy rate was universal and second to Scotland. Also, between 1880 and 1887, a study abroad program was launched where 18 young Hawaiian subjects attended schools in the United States, Great Britain, which included Scotland, Italy, Japan and China where they studied engineering, law, foreign language, medicine, military science, engraving, sculpture, and music.

PRESIDENT GROVER CLEVELAND’S MESSAGE TO THE CONGRESS IN DECEMBER 18, 1893

After completing an investigation into the United States role in the overthrow of the Hawaiian Kingdom government on January 17, 1893, President Cleveland apprised the Congress of his findings and conclusions. In his message to the Congress, he stated, “And so it happened that on the 16th day of January, 1893, between four and five o’clock in the afternoon, a detachment of marines from the United States steamer Boston, with two pieces of artillery, landed at Honolulu. The men, upwards of 160 in all, were supplied with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies. This military demonstration upon the soil of Honolulu was of itself an act of war.” He concluded, that “the military occupation of Honolulu by the United States on the day mentioned was wholly without justification, either as an occupation by consent or as an occupation necessitated by dangers threatening American life and property.”

This invasion coerced Queen Lili‘uokalani, executive monarch of the Hawaiian Kingdom, to conditionally surrender to the superior power of the United States military, where she stated, “Now, to avoid any collision of armed forces and perhaps the loss of life, I do, under this protest, and impelled by said force, yield my authority until such time as the Government of the United States shall, upon the facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.” The President acknowledged, that by “an act of war…the Government of…friendly and confiding people has been overthrown.”

Through executive mediation between the Queen and the new U.S. Minister to the Hawaiian Islands, Albert Willis, that lasted from November 13, 1893 through December 18, 1893, an agreement of peace was reached. According to the executive agreement, by exchange of notes, the President committed to restoring the Queen as the constitutional sovereign, and the Queen agreed, after being restored, to grant a full pardon to the insurgents. Political wrangling in the Congress, however, blocked President Cleveland from carrying out his obligation of restoration of the Queen.

LIMITATION OF THE UNITED STATES CONSTITUTION AND LAWS

Five years later, at the height of the Spanish-American War, President Cleveland’s successor, William McKinley, signed a congressional joint resolution of annexation on July 7, 1898, unilaterally seizing the Hawaiian Islands for military purposes. In the Lotus case, the Permanent Court of International Justice stated that “the first and foremost restriction imposed by international law upon a State is that…it may not exercise its power in any form in the territory of another State.”

This rule of international law was acknowledged by the Supreme Court in United States v. Curtiss-Wright, Corp. (1936), when the court stated, “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.” In 1988, the U.S. Department of Justice’s Office of Legal Counsel concluded, it is “unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution.”

Under international law, “a disguised annexation aimed at destroying the independence of the occupied State, represents a clear violation of the rule preserving the continuity of the occupied State (Marek, Identity and Continuity of States in Public International Law, 2nd ed. 110 (1968)).”

Despite the limitations of United States legislation, the Congress went ahead and enacted the Territorial Act (1900) changing the name of the governmental infrastructure to the Territory of Hawai‘i. Fifty-nine years later, the Congress changed the name of the Territory of Hawai‘i to the State of Hawai‘i in 1959 under the Statehood Act. The governmental infrastructure of the Hawaiian Kingdom continued as the governmental infrastructure of the State of Hawai‘i.

According to Professor Matthew Craven in his 2002 legal opinion for the Hawaiian Council of Regency concluded, “That authority exercised by [the United States] over Hawai‘i is not one of sovereignty i.e. that the [United States] has no legally protected ‘right’ to exercise that control and that it has no original claim to the territory of Hawai‘i or right to obedience on the part of the Hawaiian population. Furthermore, the extension of [United States] laws to Hawai‘i, apart from those that may be justified by reference to the law of (belligerent) occupation would be contrary to the terms of international law.”

INTERNATIONAL HUMANITARIAN LAW OBLIGATES THE UNITED STATES TO ADMINISTER THE LAWS OF THE HAWAIIAN KINGDOM

Despite over a century of occupation, international humanitarian law, otherwise known as the laws of war, obligates the United States to administer the laws of the occupied State. In 2018, United Nations Independent Expert, Dr. Alfred deZayas, sent a communication from Geneva to the State of Hawai‘i that read:

“As a professor of international law, the former Secretary of the UN Human Rights Committee, co-author of [the] book, The United Nations Human Rights Committee Case Law 1977-2008, and currently serving as the UN Independent Expert on the promotion of a democratic and equitable international order, 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 a 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).”

Violations of the provisions of the 1907 Hague Regulations and the 1949 Fourth Geneva Convention are war crimes. Professor William Schabas, recognized expert in international criminal law, determined in a 2019 legal opinion for the Hawaiian Royal Commission of Inquiry, that war crimes have and continue to be committed in the Hawaiian Islands since January 17, 1893. He states, “In addition to crimes listed in applicable treaties, war crimes are also recognized under customary international law. Customary international law applies to States regardless of whether they have ratified relevant treaties. The customary law of war crimes is thus applicable to the situation in Hawai‘i. Many of the war crimes set out in the first Additional Protocol and in the Rome Statute codify customary international law and are therefore applicable to the United States despite its failure to ratify the treaties.” And according to Professor Lenzerini in his 2019 legal opinion for the Royal Commission of Inquiry, that violations of human rights in the Hawaiian Kingdom “would first of all need to be treated as war crimes, which are primarily to be considered under the lens of international criminal law.”

CONCEALING THE ILLEGAL OCCUPATION THROUGH AMERICANIZATION—DENATIONALIZATION

How could such a travesty have gone unnoticed until now? The answer is obliteration of Hawaiian national consciousness through a process of denationalization. Predating the policy of Germanization in the German occupied State of Serbia from 1915-1918, a formal policy of Americanization was initiated in 1906 that sought to obliterate the national consciousness of the Hawaiian Kingdom in the minds of school children throughout the islands. Classroom instruction was in English and if the children spoke Hawaiian they were severely punished. The Hawaiian Gazette reported, “It will be remembered that at the time of the celebration of the birthday of Benjamin Franklin, an agitation was begun looking to a better observance of these notable national days in the schools, as tending to inculcate patriotism in a school population that needed that kind of teaching, perhaps, more than the mainland children do.”

In 1907, a reporter from New York’s Harper’s Weekly visited Ka‘iulani public school in Honolulu and showcased the seeds of indoctrination. The reporter wrote:

“At the suggestion of Mr. Babbitt, the principal, Mrs. Fraser, gave an order, and within ten seconds all of the 614 pupils of the school began to march out upon the great green lawn which surrounds the building.… Out upon the lawn marched the children, two by two, just as precise and orderly as you find them at home. With the ease that comes of long practice the classes marched and counter-marched until all were drawn up in a compact array facing a large American flag that was dancing in the northeast trade-wind forty feet above their heads.… ‘Attention!’ Mrs. Fraser commanded. The little regiment stood fast, arms at side, shoulders back, chests out, heads up, and every eye fixed upon the red, white and blue emblem that waived protectingly over them. ‘Salute!’ was the principal’s next command. Every right hand was raised, forefinger extended, and the six hundred and fourteen fresh, childish voices chanted as one voice: ‘We give our heads and our hearts to God and our Country! One Country! One Language! One Flag!’”

The word “inculcate” imports force such as to convince, implant, or to indoctrinate. Brainwashing is its colloquial term. Within three generations, the national consciousness of the Hawaiian Kingdom was effectively obliterated from the minds of the Hawaiian people.

THE RISE OF NATIONAL CONSCIOUSNESS OF THE HAWAIIAN KINGDOM

The year 1993, which marked the 100th anniversary of the American invasion and occupation, began the resurgence of Hawaiian national consciousness. It was also the year that the Congress enacted a joint resolution apologizing for the United States role in illegally overthrowing the government of the Hawaiian Kingdom. Six years later on November 8, 1999, the Permanent Court of Arbitration in The Hague accepted a dispute between Lance Larsen, a Hawaiian subject, and the restored Hawaiian government—the Council of Regency (Larsen v. Hawaiian Kingdom). Larsen alleged the Council of Regency was legally liable for “allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.” The Regency’s position was that it was not liable and that the United States was responsible under international humanitarian law. Due to the United States decision not to participate in the arbitral proceedings after being invited by the Regency and Larsen’s counsel, Larsen was unable to maintain his suit against the Hawaiian government.

These proceedings, however, drew international attention to the American occupation which prompted the NLG’s International Committee to form the Hawaiian Kingdom Subcommittee in March of 2019. The Subcommittee “provides legal support to the movement demanding that the U.S., as the occupier, comply with international humanitarian and human rights law within Hawaiian Kingdom territory, the occupied. This support includes organizing delegations and working with the United Nations, the International Committee of the Red Cross, and NGOs addressing U.S. violations of international law and the rights of Hawaiian nationals and other Protected Persons.”

In December of 2019, the NLG’s membership voted and passed a resolution where “the National Lawyers Guild calls upon the United States of America immediately to begin to comply with international humanitarian law in its prolonged and illegal occupation of the Hawaiian Islands.”

  • NLG strongly condemns the prolonged and illegal occupation of the Hawaiian Islands.
  • NLG also condemns the unlawful presence and maintenance of the United States Indo-Pacific Command with its 118 military sites throughout the Hawaiian Islands, which has caused the islands to be targeted for nuclear strike by North Korea, China and Russia.
  • NLG calls for the United States to immediately comply with international humanitarian law and begin to administer the laws of the Hawaiian Kingdom as the occupied State.
  • NLG calls on the legal and human rights community to view the United States presence in the Hawaiian Islands through the prism of international law and to roundly condemn it as an illegal occupation under international law.
  • NLG supports the Hawaiian Council of Regency, who represented the Hawaiian Kingdom at the Permanent Court of Arbitration, in its efforts to seek resolution in accordance with international law as well as its strategy to have the State of Hawai‘i and its Counties comply with international humanitarian law as the administration of the Occupying State.
  • NLG calls on all United Nations member States and non-member States to not recognize as lawful a situation created by a serious violation of international law, and to not render aid or assistance in maintaining the unlawful situation. As an internationally wrongful act, all States shall cooperate to ensure the United States complies with international humanitarian law and consequently bring to an end the unlawful occupation of the Hawaiian Islands.

The National Lawyers Guild, whose membership includes lawyers, legal workers, jailhouse lawyers, and law students, was formed in 1937 as the United States’ first racially-integrated bar association to advocate for the protection of constitutional, human and civil rights.

Attorneys for Mauna Kea Protectors Argue State of Hawai‘i is Engaging in “War Crimes”

This past Monday defense lawyers Dexter Kaiama and Stephen Laudig filed their response to the State of Hawai‘i Attorney General’s opposition to their clients’ motion to dismiss. They argued that the Attorney General “cannot be allowed to knowingly and with intent benefit from the ‘war crime’ of usurpation of sovereignty that consists in the ‘imposition of legislation or administrative measures by the occupying power,’ which, in effect, leads to the violation of international law by denying a Protected Person of the right to a fair and regular trial by a properly constituted court. The prohibition of ‘war crimes’ is a jus cogens norm under customary international law and neither the [Attorney General] nor this Court can derogate from these peremptory norms.”

Kaiama and Laudig represent Deena Oana-Hurwitz, Loretta and Walter Ritte, Pualani Kanakaole-Kanahele, Kaliko Kanaele, Gene P.K. Burke, Alika Desha and Desmon Haumea. Both attorneys are also members of the National Lawyers Guild that “provides legal support to the movement demanding that the U.S., as the occupier, comply with international humanitarian and human rights law within Hawaiian Kingdom territory, the occupied.”

After state law enforcement officers arrested 39 Kia‘i Mauna (protectors of the mountain) who were opposing the building of the Thirty-Meter Telescope (TMT) on Mauna Kea on July 17, 2019, the Attorney General filed charges of obstruction in the Hilo District Court. On behalf of the 8 defendants, Kaiama and Laudig filed their motions to dismiss on November 13, 2019, which provided clear and unequivocal evidence that because the Hawaiian Kingdom continues to exist under international law the District Court “is not a regularly constituted court” and therefore does not have lawful jurisdiction to preside over the case.

An opposition to the motion to dismiss was filed by the Attorney General on December 6, 2019. In its opposition, the Attorney General provided no counter evidence of the Hawaiian Kingdom’s existence and that the Hawaiian Islands have never been lawfully a part of the United States. Instead, the Attorney General argues three points as to why Judge Kanani Lauback should deny defendants’ motion to dismiss. The first argument is that the political question doctrine prevents courts from adjudicating the legality of the overthrow of the Hawaiian Kingdom and the validity of the State of Hawai‘i. Second, the legal status of the State of Hawai‘i has been adjudicated. And, third, international law does not override acts of Congress.

On December 9, Kaiama and Laudig filed a reply that starts off by stating that the Attorney General’s “statement of relevant facts violates the principle of jus cogens and is not relevant to the Court’s consideration of the instant motion.” Jus cogens is a legal term that federal courts say “enjoy[s] the highest status within international law,” and as such cannot be denigrated. International crimes, which includes war crimes, are jus cogens norms.

In its reply, the defense pointed out that the unlawful imposition of United States laws and administrative policies constitute a war crime under customary international law. For their evidence, the defense cited a legal opinion written by Professor William Schabas, a leading expert in international criminal law and war crimes, titled Legal opinion on war crimes related to the United States occupation of the Hawaiian Kingdom since 17 January 1893. The defense argues that all “three fit squarely within the provisions of United States internal law—being legislation and administrative rules, which customary international law precludes a State from invoking as justification for its failure to comply with Article 43 of the Hague Regulations.” Article 43 of the Hague Regulation is a ratified treaty by the United States that obligates an Occupying State to administer the laws of the Occupied State. In this case the Occupying State is the United States and the Occupied States is the Hawaiian Kingdom.

A hearing on the motion to dismiss is scheduled for 8:30am on Friday, December 13, 2019, at the Hilo District Court.

Hawaiian Royal Commission of Inquiry

In response to over a century of the United States’ violations of international humanitarian law and the commission of war crimes with impunity that have occurred within the territory of the Hawaiian Kingdom, the acting Council of Regency established the Royal Commission of Inquiry (Commission), by proclamation, on April 17, 2019. The Commission was established by “virtue of the prerogative of the Crown provisionally vested in [the Council of Regency] in accordance with Article 33 of the 1864 Constitution, and 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.”

The Commission’s mandate “shall be to investigate the consequences of the United States’ belligerent occupation, including with regard to international law, humanitarian law and human rights, and the allegations of war crimes committed in that context”—Article 1(2).  To accomplish this mandate, Dr. David Keanu Sai”—Article 1(1), who currently serves as Minister of the Interior and Minister of Foreign Affairs ad interim, shall head the Commission and has been authorized to seek “recognized experts in various fields”—Article 3, whose opinions shall form the basis of the Commission’s reports.

The Commission shall first come out with a preliminary report that will provide the “geographical scope and time span of the investigation”—Article 1(2), and the identification of the specific war crimes to be investigated as well as a list of human rights recognized during belligerent occupations. The preliminary report will be followed by periodic reports that will identify the perpetrators of these war crimes and human rights violations. These periodic reports will have the evidential basis of mens rea and actus reus that have a direct nexus to the elements that constitute a particular war crime(s) as provided in the legal opinion of Professor William Schabas. War crimes have no statute of limitations, and, for those war crimes that are recognized under customary international law, States are obligated to prosecute perpetrators of war crimes under its universal jurisdiction. 

These reports “will be presented to the Council of Regency, the Contracting Powers of the 1907 Hague Convention, IV, respecting the Laws and Customs of War on Land, the Contracting Powers of the 1949 Geneva Convention, IV, relative to the Protection of Civilian Persons in Time of War, the Contracting Powers of the 2002 Rome Statute, the United Nations, the International Committee of the Red Cross, and the National Lawyers Guild”—Article 1(3).

The Commission has been convened with experts in international law in the fields of State continuity, humanitarian law, human rights law and self-determination of a people of an existing State under belligerent occupation. These experts authored legal opinions for the Commission, which include: Professor Matthew Craven, University of London SOAS, School of Law; Professor William Schabas, Middlesex University London, School of Law; and Professor Federico Lenzerini, University of Siena (Italy), Department of Political and International Sciences. Dr. Sai, who is also from the University of Hawai‘i, will also provide his expertise in the legal and political history of Hawai‘i.

Dr. David Keanu Sai, Memorandum—Hawaiian Constitutional Governance (2019).

Dr. David Keanu Sai, Memorandum—United States Belligerent Occupation of the Hawaiian Kingdom (2019).

Professor Matthew Craven, Legal Opinion—Continuity of the Hawaiian Kingdom under international law (2002).

Professor William Schabas, Legal Opinion—War crimes related to the United States occupation of the Hawaiian Kingdom since 17 January 1893 (2019).

Professor Federico Lenzerini, Legal Opinion—International Human Rights Law and Self-Determination of Peoples Related to the United States Occupation of the Hawaiian Kingdom since 17 January 1893 (2019)

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:

Mauna Kea: Maui County Official Says UH Lease to TMT “Invalid”

WAILUKU, Hawaii – In her second letter to University of Hawaii President David Lassner, Maui County Councilmember Tamara Paltin has reiterated her concern over what appears to be the invalidity of General Lease S-4191, originally granted to University of Hawaii by the Board of Land and Natural Resources in 1968 and now subleased to TMT.

President Lassner assured Paltin in his July 18th response to her July 12th letter that “the project has all approvals required by law.” However, his brief correspondence did not address the concerns for native tenant rights and the war crime of destruction of property presented in Paltin’s original letter.

Councilmember Paltin reminded President Lassner that the general public’s understanding of Hawaii’s legal and political history has evolved significantly since the lease was originally granted to the University of Hawaii. In her latest letter, Paltin has suggested that the information that has come to light since 1968, including that found in the Apology Resolution of 1993, sets the general lease in a new context.

Referencing this new understanding of Hawaii’s legal history, Paltin wrote, “The United States Congress, in its Apology Resolution in 1993 (107 Stat. 1512), admitted…the so-called transfer of Hawaiian government and crown lands, which included the ahupua‘a of Ka‘ohe, to the United States in 1898, was done ‘without the consent of or compensation to the Native Hawaiian people of Hawai‘i or their sovereign [Hawaiian Kingdom] government.’” Therefore, because the transfer of property occurred without consent, Paltin continued, the sublease to TMT is invalid.

Councilmember Paltin once again requested that President Lassner have the University’s legal counsel review the assessment of the situation presented in her original letter and defend the validity of the general and sublease.

A full copy of Councilmember Tamara Paltin’s 07/26/19 letter to UH President Lassner can be located at mauicounty.us/paltin/.

War Crime: State of Hawai‘i Supreme Court Admits Mauna Kea Summit has been Destroyed

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.


War Crime of Destruction of Property on the Summit of Mauna Kea

According to Article 55 of the 1907 Hague Convention, IV, “The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the [occupied] State, and situated in the occupied territory. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.” As the title to Ka‘ohe remains vested in the Hawaiian government as public land there is a duty that anything done on public property must be in accordance with the rules of usufruct, which, by definition, is the “right of using and enjoying and receiving the profits of property that belongs to another.”[1]

NOTE: The international laws of occupation apply to hostile States at war with each other or occupied States that have not engaged in the war but are neutral. Belligerent occupation is a term used to apply where the territory of a foreign country is occupied without the consent of the occupied State. Neutral States, such as the Hawaiian Kingdom, can be belligerently occupied and the laws of occupation still applies.

Article 147 of the Geneva Convention, IV, lists as a grave breach the “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” This grave breach is expanded under Article 53, any “destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State [Hawaiian Kingdom], or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.” The Commentary to the Geneva Convention, IV, states:

In the very wide sense in which the Article must be understood, the prohibition covers the destruction of all property (real or personal), whether it is the private property of protected persons (owned individually or collectively), State property, that of the public authorities (districts, municipalities, provinces, etc.) or of co-operative organizations. The extension of protection to public property and to goods owned collectively, reinforces the rule already laid down in the Hague Regulations, Articles 46 and 56 according to which private property and the property of municipalities and of institutions dedicated to religion, charity and education, the arts and sciences must be respected.[2]

Section 402 of the United States Army Field Manual 27-10 provides:

Real property of the [occupied] State which is essentially of a non-military nature, such as public buildings and offices, land, forests, parks, farms, and mines, may not be damaged or destroyed unless such destruction is rendered absolutely necessary by military operations … The occupant does not have the right of sale or unqualified use of such property. As administrator, usufructuary, he should not exercise his rights in such a wasteful and negligent manner as seriously to impair its value.

In international criminal law, the actus reus present on Mauna Kea are the acts of destruction of property belonging to the Hawaiian Kingdom as the Occupied State. The mens rea requires that the perpetrator act with intent to destroy the property and with knowledge that the owner of the property is the Hawaiian Kingdom government. The actus reus and mens rea are met as evidenced in the State of Hawai‘i Supreme Court decisions In the Matter of Contested Case Hearing Re Conservation District Use Application (CDUA) HA-3568 for the Thirty Meter Telescope at the Mauna Kea Science Reserve, Ka‘ohe Mauka, Hamakua, Hawai‘i, TMK (3) 404015:009.

On October 30, 2018, the Hawai‘i Supreme Court affirmed a decision of the Board of Land and Natural Resources which issued a conservation district use permit for TMT near the summit of Mauna Kea.[3] In its decision, the majority of the court did not, because it could not, refute the claim that “the ahupua‘a of Ka‘ohe in the District of Hamakua are lands still held by the Hawaiian Kingdom.”[4] Somewhat amazing was its open acknowledgement that eleven observatories built since 1970[5] on the summit of Mauna Kea did destroy the property.

The majority stated:

Construction of these observatories and roads has had significant cumulative adverse impacts on cultural, archaeological, and historic resources in the MKSR [Mauna Kea Science Reserve]. The observatories have also had significant cumulative adverse impacts on geology, soils, and slope stability in the MKSR because they significantly modified the preexisting terrain, the tops of certain pu‘u were flattened to accommodate observatory foundations, and some materials removed from the pu‘u were pushed over their sides, creating steeper slopes more susceptible to disturbance.[6]

Associate Justice Michael Wilson dissented from the majority of the court and filed his dissent on November 9, 2018. At the heart of Justice Wilson’s dissent was the destruction of the summit of Mauna Kea. He acknowledged that

the party responsible for the substantial adverse impact to this protected resource is the State of Hawai‘i (State). It is uncontested that the State authorized previous construction within the Astronomy Precinct of the MKSR that created a substantial adverse impact. Thus, the party that caused the substantial adverse impact is empowered by the degradation principle to increase the damage. Now the most extensive construction project yet proposed for the Astronomy Precinct—a 180-foot building 600 feet below the summit ridge of Mauna Kea—is deemed to have no substantial adverse impact due to extensive degradation from prior development of telescopes in the summit area.[7]

He concluded that the “substantial adverse impacts to cultural resources presently existing in the Astronomy Precinct of Mauna Kea combined with the impacts from TMT—a proposed land use that eclipses all other telescopes in magnitude—would constitute an impact on existing cultural resources that is substantial and adverse.”[8]


[1] Black’s Law, p. 1544.

[2] Oscar M. Uhler, Henri Coursier, Frédéric Siordet, Claude Pilloud, Roger Boppe, René-Jean Wilhelm and Jean Pierre Schoenholzer, Commentary IV, Geneva Convention relative to the Protection of Civilian Persons in Time of War, Geneva: International Committee of the Red Cross, 1958, p. 301.

[3] In Re Conservation District Use Application for TMT, SCOT-17-0000777, Opinion, State of Hawai‘i Supreme Court (Oct. 30, 2018), available at: http://www.courts.state.hi.us/wp-content/uploads/2018/10/SCOT-17-0000777.pdf.

[4] Id., p. 45.

[5] The University 2.2-meter Telescope (1970), the United Kingdom Infrared Telescope (“UKIRT”)(1979)(now owned by the University), the NASA Infrared Telescope Facility (operated by the University)(1979), the Canada-France-Hawaiʻi Telescope (1979); (5) the California Institute of Technology (“Caltech”) Submillimeter Observatory (“CSO”)(1986), the James Clerk Maxwell Telescope (“JCMT”)(1986)(now owned by the University), the Very Long Baseline Array (1992), the W. M. Keck Observatory, first phase (1992) and second phase (1996), the Subaru Observatory (“Subaru”)(1999), the Gemini North Observatory (1999), and the Submillimeter Array (2002).

[6] In Re Conservation District Use Application for TMT, SCOT-17-0000777, Opinion, State of Hawai‘i Supreme Court (Oct. 30, 2018), p. 5-6.

[7] In Re Conservation District Use Application for TMT, SCOT-17-0000777, Dissenting Opinion, Wilson, J. (Nov. 9, 2018), p. 5, available at: http://www.courts.state.hi.us/…/11/SCOT-17-0000777dis.pdf.

[8] Id., p. 36.

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).

Maui County Council member Tamara Paltin Sought Dr. Keanu Sai’s Expertise and Calls upon UH President Lassner to halt TMT Construction Due to Invalidity of General Lease and War Crimes

WAILUKU, Hawaii – In an urgent plea, Maui County Council member Tamara Paltin announced that she has asked University of Hawaii President David Lassner to put a hold on moving forward with the construction of the Thirty Meter Telescope (“TMT”) planned for the summit of Mauna Kea. 

Paltin issued a letter of inquiry to President Lassner on Friday, July 12th in response to Governor Ige’s news conference last week announcing that construction would begin next week on July 15th.  In her letter Paltin expressed “grave concerns for the safety of Maui County’s residents and all individuals mobilizing to access and assemble atop Mauna Kea.”    

It is anticipated that kupuna to keiki and all ages in betweenfrom all islands will be present to exercise traditional Native Hawaiian cultural and religious access, as well as protest the construction of the TMT.  With emotions high, extreme weather conditions, law enforcement presence and talk of the potential deployment of LRAD (Long-Range Acoustic Hailing Devices) for crowd control, Councilmember Paltin fears for the safety and protection of all who will be present on the summit.     

Councilmember Paltin sought out insight from Dr. Keanu Sai who has served as a resource for and provided training presentations to the Council’s Planning and Sustainable Land Use Committee, of which Paltin chairs, concerning the proposed construction of the TMT on the summit of Mauna Kea, in light of the ahupua`a of Ka`ohe being so-called ceded lands.  

Paltin’s letter reiterates Dr. Sai’s focus on three topics underlying the proposed TMT construction: the invalidity of General Lease No. S-4191 between the State of Hawai`i Board of Land and Natural Resources, as the lessor, and the University of Hawai`i, as the lessee; the war crime of destruction of property on the summit of Mauna Kea by the previous telescopes; and the third topic of native tenant rights within the  ahupua`a of Ka`ohe, and describes Dr. Sai’s response as “quite illuminating to say the least.”

Councilmember Paltin requested that President Lassner have the University’s legal counsel review Dr. Sai’s assessment of the situation, and stated that, “this is not a political issue, but an issue of the rule of law, which is foundational, and for our communities throughout the islands to have confidence that the State of Hawai`i officials, to include the Counties, believe in and abide by.”

A full copy of Councilmember Tamara Paltin’s letter to UH President Lassner can be located at mauicounty.us/paltin/.

For more information, please contact Councilmember Paltin’s office.