On December 16, 2021, United States Magistrate Judge Rom Trader issued an order allowing the United States to file their Response Memorandum to the Hawaiian Kingdom’s Motion for Judicial Notice of Civil Law regarding the action taken by the International Bureau of the Permanent Court of Arbitration acknowledging the Hawaiian Kingdom as a non-Contracting State to the 1907 Convention on the Pacific Settlement of International Disputes from December 16, 2021 to January 14, 2022. The Hawaiian Kingdom will need to file their Reply in support of their Motion for Judicial Notice by January 28, 2022.

The United States will also be filing a Motion to Dismiss the complaint on the same day their Response is due. The Hawaiian Kingdom is scheduled to file their Opposition to the Motion Dismiss on the same day they will be filing their Reply in support of their Motion for Judicial Notice. The United States will then file their Reply in support of their Motion to Dismiss by February 11, 2022.

Judge Trader’s order confirmed a Stipulation Agreement entered into between Dexter Ka‘iama, Attorney General for the Hawaiian Kingdom, and Michael J. Gerardi, Trial Attorney, U.S. Department of Justice. The Stipulation Agreement stated:

In light of the Court’s decision to convert Plaintiff’s request for judicial notice into a motion, the impending deadlines for responding to the complaint and the Rule 16 conference, and the forthcoming federal holidays of Christmas and New Year’s Day, good cause exists to modify the current deadlines. Resolution of the Plaintiff’s pending motion and of Defendants’ motion to dismiss may obviate the need for a Rule 16 conference. Defendants further state that they need additional time to consult with representatives of multiple government agencies, as well as supervisory officials within the Department of Justice, to prepare the necessary filing. Moreover, many federal officials are likely to be unavailable during the holiday season due to preplanned leave.

Gerardi disclosed to Attorney General Ka‘iama that the basis for their Motion to Dismiss would argue that federal courts have already determined that the Hawaiian Kingdom does not exist and, therefore, it presents a political question that would require presiding Judge Leslie Kobayashi to dismiss the case. The political question doctrine applies only to Article III Courts, which are federal courts within the territory of the United States. It does not apply to federal courts established outside of the United States, which are called Article II Courts.

The doctrine prevents the federal courts from determining the question of sovereignty over territory because that determination is committed to the political branches of the federal government. If there is a question of sovereignty over Native American tribal lands the political branch to determine that question in the affirmative would be the legislative branch—the Congress by virtue of federal recognition. If the question of sovereignty concerns a country outside of the United States it would be the executive branch, headed by the President, recognizing a territory as an “independent and sovereign State.”

It would appear that Gerardi is not aware that President Tyler on July 6, 1844 explicitly recognized the Hawaiian Kingdom as an independent State by letter from Secretary of State John C. Calhoun to the Hawaiian Commission comprised of Timoteo Ha‘alilio and William Richards. While in the Washington, D.C., the Hawaiian Commission sent a letter dated December 14, 1842, to Secretary of State Daniel Webster requesting that the United States recognize the Hawaiian Kingdom as a “sovereign and independent State.”

On December 19th, Secretary of State Webster responded by stating that President Tyler is “willing to declare, as the sense of the Government of the United States, that the Government of the Sandwich Islands [Hawaiian Islands] ought to be respected; that no power ought either to take possession of the islands as a conquest, or for the purpose of colonization, and that not power ought to seek for any undue control over the existing Government, or any exclusive privileges or preferences in matters of commerce.” He further stated, “the President does not see any present necessity for the negotiation of a formal treaty, or the appointment or reception of diplomatic characters.” The use of the term “ought” is not conclusive as “shall.”

His his message to the House of Representatives on December 31, 1842, President Tyler stated that the United States “is content with its independent existence,” but did not explicitly recognize the Hawaiian Kingdom as a “sovereign and independent State” as required by customary international law. President Tyler did not declare the United States’ recognition of Hawaiian independence, which prompted to the Hawaiian Commission to travel to Europe to seek explicit recognition from Great Britain and France.

On November 28, 1843, the Hawaiian Commission was able to secure formal recognition of the Hawaiian Kingdom as a “sovereign and independent State” from Great Britain and France by a formal joint proclamation. While in Washington, D.C., after returning from Europe, the Hawaiian Commission sent another letter to Secretary of State Calhoun, who succeeded Webster, on July 1, 1844, inquiring whether the United States considered its “various acts in relation to the Sandwich Islands as a full and perfect recognition of independence.”

Secretary of State Calhoun responded to the Hawaiian Commission on July 6, 1844. He wrote that the appointment of a United States Commissioner to the Hawaiian Islands was “regarded by the President as a full recognition on the part of the United States, of the Independence of the Hawaiian Government.” A Treaty of Friendship, Commerce and Navigation between the Hawaiian Kingdom and the United States was signed in Washington, D.C., on December 20, 1849.

There is no political question for the United States to raise in its Motion to Dismiss because the United States, by its President, formally recognized the Hawaiian Kingdom as a sovereign and independent State. On December 18, 1893, President Grover Cleveland acknowledged the United States’ overthrow of the government of the Hawaiian Kingdom was an act of war and unlawful. The overthrow of the Government of an independent State does not equate to the overthrow of the State itself and its existence. The State would still exist and the situation would be called “belligerent occupation.”

This is precisely what occurred when the Allied Powers occupied Germany from 1945-1955 after the Nazi government of Germany was militarily overthrown. According Professor Ian Brownlie:

Thus after the defeat of Nazi Germany in the Second World War the four major Allied powers assumed supreme power in Germany. The legal competence of the German state [its independence and sovereignty] did not, however, disappear. What occurred is akin to legal representation or agency of necessity. The German state continued to exist, and, indeed, the legal basis of the occupation depended on its continued existence.

After reviewing the Hawaiian Kingdom’s Request for Judicial Notice regarding Civil Law on the “Juridical Fact” of the Hawaiian State and the Consequential “Juridical Act” by the Permanent Court of Arbitration, District Court Judge Leslie Kobayashi issued a Minute Order today setting dates for additional filings. Judge Kobayashi will be considering the Request for Judicial Notice as a Non Hearing Motion.

The Order stated that Defendants have until December 21, 2021 to file a Response Memorandum to the Hawaiian Kingdom’s Request for Judicial Notice of Civil Law. The Plaintiff, if it chooses, will need to file a Reply Memorandum by January 4, 2022. After the parties file their submissions, the “Court to issue Order.”

At the center of the federal lawsuit is the court’s jurisdiction, which is its authority to preside over the case. Without proper jurisdiction or authority, the Court cannot make any decision regarding the Hawaiian Kingdom’s allegations in its Amended Complaint, or even any substantive issues raised by the defendants through motions or statements of interest. In its Amended Complaint, the Hawaiian Kingdom explained:

3. While this court is operating within the territory of the HAWAIIAN KINGDOM and not within the territory of Defendant UNITED STATES OF AMERICA, its jurisdiction is found as a de facto Article II Court. According to Professor Bederman:

What, then, is distinctive about a court established under Article II of the Constitution? First, executive tribunals are established without an act of Congress or any other form of legislative concurrence. Congressional intent concerning the status of a presidential court is irrelevant because no congressional approval is needed. The fact that the President alone can create an executive court places it outside the scope of Article III of the Constitution, which demands that Congress shall establish courts inferior to the Supreme Court. Second, the executive courts are created pursuant only to the power and authority granted to the President in Article II of the Constitution. In practice, the only presidential power that would call for the creation of a court is that arising from his responsibility as Commander in Chief of the armed services and his subsequent war-making authority.

4. The authority for this Court to assume jurisdiction as a de facto Article II Court is fully elucidated in the Amicus Curiae brief previously lodged in these proceedings by virtue of the Motion for Leave to File Amicus Curiae Brief on July 30, 2021 [ECF 45] by the International Association of Democratic Lawyers (IADL), the National Lawyers Guild (NLG), and the Water Protector Legal Collective (WPLC). The Amicus brief is instructional for the Court to transition to a de facto Article II Court.

5. An Article II Court was established in Germany after hostilities ceased in 1945 during the Second World War. After the surrender, western Germany came under belligerent occupation by the United States, France and Great Britain. The military occupation officially came to an end on May 5, 1955, with the entry into force of peace treaties called the Bonn Conventions between the Federal Republic of Germany and the three Occupying States. During the occupation, these Article II Courts had jurisdiction “over all persons in the occupied territory,” except for Allied armed forces, their dependents, and civilian officials, for “[a]ll offenses against the laws and usages of war[,] […] [a]ll offenses under any proclamation, law, ordinance, notice or order issued by or under the authority of the Military Government or of the Allied Forces, [and] [a]ll offenses under the laws of the occupied territory or any part thereof.”

6. Like the Article II Court in Germany, this Court has Jurisdiction as a de facto Article II Court because this action arises under international humanitarian law—law of armed conflict, which include the 1907 Hague Convention, IV (1907 Hague Regulations), the 1907 Hague Convention, V, the 1949 Geneva Convention, IV (1949 Fourth Geneva Convention), and Hawaiian Kingdom law. Article 43 of the 1907 Hague Regulations states:

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

7. The Court is authorized to award the requested declaratory and injunctive relief as a de facto Article II Court because it is situated within the territory of the HAWAIIAN KINGDOM that has been under a prolonged belligerent occupation by the United States of America since January 17, 1893.

On August 17, 2021, the International Association of Democratic Lawyers (IADL), the National Lawyers Guild (NLG) and the Water Protector Legal Collective (WPLC) filed a motion for permission to file an amicus curiae brief with the U.S. District Court for the District of Hawai‘i in support of the Hawaiian Kingdom’s complaint against U.S. President Biden and others for violations of international law, the commission of war crimes, and human rights violations in its prolonged occupation of the Hawaiian Kingdom. The motion was filed after the Hawaiian Kingdom filed its Amended Complaint on August 11, 2021.

An amicus curiae is “one (such as a professional person or organization) that is not a party to a particular litigation but that is permitted by the court to advise it in respect to some matter of law that directly affects the case in question.” The amicus brief was attached to the motion for the court to consider. In its request for permission, the IADL-NLG-WPLC stated:

1. The nongovernmental organizations whose views are represented in this brief have expertise in public international law, international human rights, humanitarian law, and norms regarding statehood, sovereignty, and self-determination.

2. Movants submit this brief to ensure a proper understanding and application of the international law and historical precedent relevant to this case regarding Article II occupation courts. The amici are additionally human rights organizations that have an interest in ensuring an informed interpretation of international human rights law in domestic jurisprudence.

On September 30, 2021, Federal Magistrate Rom Trader issued an Order granting permission for the IADL-NLG-WPLC to file their amicus brief that supports the Hawaiian Kingdom’s claim that the Court must transform itself into an Article II Court. By granting permission, the Court will not only utilize the amicus brief to assist in its decision regarding its transformation into an Article II Court, but it also acknowledges the merit of the IADL-NLG-WPLC’s argument. If it were a frivolous argument, the Court would not have granted permission to file the brief because granting permission is at the discretion of the Court. The Court was able to issue this Order without having resolved its jurisdiction, because the brief addresses jurisdiction for the Court to consider when it transforms itself into an Article II Occupation Court.

The IADL-NLG-WPLC filed their amicus brief on October 6, 2021 and opened with:

The purpose of this brief is to bring to the Court’s attention customary international law norms and judicial precedent regarding Article II occupation courts that bear on the long-standing belligerent occupation of the Hawaiian Kingdom by the United States at issue in this case.

In assessing the legality of the US occupation of Hawai‘i, the Court should be cognizant of customary international law and international human rights treaties that are incorporated into domestic law by virtue of Article VI, section 2 of the Constitution (the “Supremacy Clause”). International law, which includes treaties ratified by the United States as well as customary international law, is part of U.S. law and must be faithfully executed by the President and enforced by U.S. courts except when clearly inconsistent with the U.S. Constitution or subsequent acts of Congress.

The question here is not whether the Hawaiian Kingdom has standing in an Article III court. The question is whether this court can sit as an Article II occupation court and whether the claims of the Hawaiian Kingdom can be redressed. The answer to both questions is yes.

It is evident that the Court has accepted the arguments that it is not properly constituted because it is located in the territory of the Hawaiian Kingdom and not within the territory of the United States. Adding to the serious consequences of this case was the closure of three consulates of the Czech Republic, Finland, and India. This prompted the United States Department of Justice to file a Statement of Interest on November 5, 2021, that was asking the Court to dismiss the thirty consulates from the lawsuit because the United States claimed they had immunity.

Of the summons that were served, 12 foreign consulates failed to respond within 21 days and entries of default were entered by the Clerk of the Court.  These foreign consulates include Austria, Belgium, Chile, Germany, Japan, Luxembourg, Netherlands, Norway, Philippines, South Korea, Spain, and Thailand. Default is where a defendant has failed to defend against a claim that has been brought by the filing of a complaint. By default, these foreign consulates accept the allegation of the Hawaiian Kingdom that it is true they are unlawful. The next stage is to get a judgment of default by the judge so that they can be ordered to close. The Hawaiian Kingdom, however, is prevented from filing a motion for judgment of default because the Court is not an Article II Court that operates in territory belligerently occupied by the United States.

The Hawaiian Kingdom filed a Response to the United States Statement of Interest on November 7, 2021, stating the consulates cannot claim to be immune from the lawsuit because they were never lawful under international law to begin with because the Hawaiian Kingdom did not give its permission to have the consulates established within its territory. Rather, these consulates, as stated by the United States in its Statement of Interest, were established by the United States Department of State. In its Response, the Hawaiian Kingdom also maintained that the “Court is compelled by international and U.S. constitutional law to first transform itself from an Article III Court to a de facto Article II Court before it may lawfully assert subject-matter and personal jurisdiction to address any of the issues raised.” 

On November 29, 2021, the Hawaiian Kingdom filed a Supplemental Response to the United States’ Statement of Interest that explained the significance of the action taken by the Permanent Court of Arbitration (PCA) through the civil law tradition of understanding of the “juridical fact” of the Hawaiian Kingdom’s continued existence under the rules of customary international law, and the consequential “juridical act” by the International Bureau of the PCA that acknowledged the Hawaiian Kingdom’s existence, which authorized the PCA to form an arbitral tribunal on June 9, 2000 to resolve the dispute in Larsen v. Hawaiian Kingdom.

Here is a link to an explanation by the University of California, Berkeley Law School of the civil law tradition and the common law and why they are distinct. The United States and the Hawaiian Kingdom are common law systems where juries determine “facts” and the judges determine “laws.” In a civil law system, there are no juries and the judge determines both laws and facts, which is why there are certain facts, called “juridical facts,” that create legal consequences, as opposed to other facts that don’t create legal consequences.

The Supplemental Response also explained the consequences of the United States and the thirty countries that have their consulates named in the lawsuit of serving on the PCA’s Administrative Council and acknowledged the Hawaiian Kingdom as a non-Contracting State to the 1907 Hague Convention under customary international law, opinio juris.

Yesterday, the Hawaiian Kingdom filed a Request for Judicial Notice regarding Civil Law on the “Juridical Fact” of the Hawaiian State and the Consequential “Juridical Act” by the Permanent Court of Arbitration. Attached to the Request is a legal opinion by Professor Federico Lenzerini from the University of Siena, Italy, which is a civil law country. In its Request, the Hawaiian Kingdom stated:

Plaintiff HAWAIIAN KINGDOM hereby requests that, pursuant to FRCP Rule 44.1, the Court take judicial notice of the civil law regarding the juridical act of the Permanent Court of Arbitration (“PCA”) recognizing the juridical fact of the Statehood of the Hawaiian Kingdom and the Council of Regency as its government.

Attached to the accompanying declaration as Exhibit “1” is an expert opinion of Professor Federico Lenzerini, a professor of international law at the University of Siena, Italy. Italy’s legal system is civil law and Professor Lenzerini is very familiar with the civil law tradition providing the ontological legal basis of the juridical fact of the Statehood of the Hawaiian Kingdom and the Council of Regency as its government, and of the juridical act taken by the PCA within the “reasonings and analogies of the…civil law.” Furthermore, the PCA is situated in the Netherlands, which is a civil law country like Italy.

Plaintiff contends, in support of its amended complaint for declaratory and injunctive relief, that the Court’s transformation to an Article II Court has a direct nexus to the PCA’s juridical act of acknowledging the Hawaiian Kingdom, a juridical fact, as a non-Contracting State to the 1907 Hague Convention for the Pacific Settlement of International Disputes. Accordingly, in support of said allegations and such evidence, Plaintiff requests that the Court takes judicial notice of the relevant provisions of the civil law regarding juridical facts and juridical acts.

FRCP Rule 44.1 provides as follows:

A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination shall be treated as a ruling on a question of law.

The recent filing brings in an expert’s legal opinion on the role that civil law had when the International Bureau of the PCA acknowledged the Hawaiian Kingdom’s continued existence as a State to be a “juridical fact.” Civil law refers to the action taken by the International Bureau as a “juridical act.” The International Bureau is headed by a Secretary General who is Dutch by nationality, and that the Netherlands, like Italy, is a civil law system. In other words, the Secretary General would have been familiar with a “juridical fact” and the consequential “juridical act” in accepting the international dispute of Larsen v. Hawaiian Kingdom under the jurisdiction of the PCA. In his legal opinion, attached to the Hawaiian Kingdom Request for the Court to take judicial notice, Professor Lenzerini explains:

According to a civil law perspective, the juridical act of the International Bureau of the PCA instituting the arbitration in the case of Larsen v. Hawaiian Kingdom may be compared – mutatis mutandis – to a juridical act of a domestic judge recognizing a juridical fact (e.g. filiation) which is productive of certain legal effects arising from it according to law. Said legal effects may include, depending on applicable law, the power to stand before a court with the purpose of invoking certain rights. In the context of the Larsen arbitration, the juridical fact recognized by the PCA in favour of the Hawaiian Kingdom was its quality of State under international law. Among the legal effects produced by such a juridical fact, the entitlement of the Hawaiian Kingdom to be part of an international arbitration under the auspices of the PCA was included, since the existence of said juridical fact actually represented an indispensable condition for the Hawaiian Kingdom to be admitted in the Larsen arbitration, vis-à-vis a private entity (Lance Paul Larsen). Consequently, the International Bureau of the PCA carried out the juridical act consisting in establishing the arbitral tribunal as an effect of the recognition of the juridical fact in point. Likewise, e.g., the recognition of the juridical fact of filiation by a domestic judge, also the recognition of the Hawaiian Kingdom as a State had in principle retroactive effects, in the sense that the Hawaiian Kingdom did not acquire the condition of State per effect of the PCA’s juridical act. Rather, the Hawaiian Kingdom’s Statehood was a juridical fact that the PCA recognized as pre-existing to its juridical act.

It is expected that the Court will take judicial notice of the civil law as explained by Professor Lenzerini. By doing so, the Court would appear to be moving closer to transforming itself into an Article II Court in accordance with the international law of occupation.

The day after celebrating Hawaiian Independence Day (Lā Kūʻokoʻa), the Hawaiian Kingdom filed a Supplemental Response to the United States Statement of Interest that the Department of Justice filed on November 5, 2021.

In its Supplemental Response, the Hawaiian Kingdom opened with:

The Plaintiff would like to expand on what it stated in its conclusion that the “jurisdiction of the Court as an Article II Court is consequential to the existence of the Hawaiian Kingdom as a State,” by drawing the Court’s attention to the consequences of the United States and those States whose Consulates are Defendants in this case that did not object to the Permanent Court of Arbitration (“PCA”), by its International Bureau, of its juridical act of acknowledging the Hawaiian Kingdom’s existence as a non-Contracting State, is a reflection of customary international law and the practice of States—opinio juris, thereby precluding the United States and Defendant foreign Consulates from denying otherwise.

The Plaintiff hereafter explains the significance of the PCAʻs juridical act by tying it directly to the continuity of the Hawaiian Kingdom as a juridical fact through the application of the civil law, as opposed to the common law, in international proceedings.

Throughout the world there are different legal systems. The predominant legal system is called citizens law or civil law, which draws from Roman law and spread throughout continental Europe. It developed over time on the basis of general principles that derived from a book titled Corpus Iuris Civilis (Body of Civil Law) and a set of universities. Great Britain, however, operates under a common law system derived from centuries of judge made law. The underlying difference is civil law is made by citizens and common law is made by judges. There are nearly 150 countries that have a civil law legal system.

The Hawaiian Kingdom also stated in its Supplemental Response the impact that the civil law had and continues to have in international law and international institutions such as the PCA.

According to Professor Picker, “[t]here is a wide degree of support for the proposition that civil law has served as the most significant influence on international law.” He goes on to state that “some would even argue that international law is essentially a civil law system.” And Professor Nagle explains, “[i]t is the civil-law traditions that have most widely influenced international law [and] international organizations.” Furthermore, as stated by Professors Merryman and Clark, “[t]he civil law was the legal tradition familiar to the Western European scholar-politicians who were the fathers of international law. The basic charters and the continuing legal development and operation of the European Communities are the work of people trained in the civil law tradition.”

Of the 44 Contracting States to the 1907 Convention that established the PCA at the Hague Conference in 1907, the United States and Great Britain, as common law States, were the only States that were not from a civil law tradition. The other 42 States were represented by men who were “trained in the civil law tradition.” This includes the Netherlands where the PCA is situated in its city The Hague. The current number of Contracting States to the 1907 Convention is 122, the majority of which are based on the civil law tradition.

Therefore, it stands to reason that the action taken by the PCA in acknowledging the continuity of the Hawaiian Kingdom as a State for purposes of its institutional jurisdiction should be viewed through the reasonings of the civil law tradition as opposed to the common law.

The two legal systems deal with evidence differently mainly because there are no juries in the civil law system. Jury trials originated in England. In the common law system, the judge determines the law and its effect, but the jury determines the facts. In the civil law system, because there is no jury, certain facts can create a juridical or legal effect. Juridical is another word for legal.

In the civil law system, the opposing parties argue points of law and the judge controls the gathering of evidence or facts. While in the common law system, the parties to the conflict gathers evidence to support their side of the argument. The judge does not get involved with evidence except to ensure the introduction of evidence is according to certain rules. In its Supplemental Response, the Hawaiian Kingdom explains how facts work in a civil law system:

In the civil law tradition, a fact is juridical or legal when it produces a legal effect, by virtue of a legal rule. In Schexnider v. McDermott Int’l Inc., the federal court in Louisiana stated juridical facts are defined as “events having prescribed legal effects.” According to the German tradition of the civil law, a juridical act, which is triggered by a juridical fact, “sets the law in motion and produces legal consequences.” Under American jurisprudence, the equivalent of a juridical act in the civil law tradition is judicial notice of a fact or facts.

The Hawaiian Kingdom, as an independent and sovereign State in continuity, is a juridical fact according to the civilian law. Both rights and powers held by a subject of international law may arise from a juridical fact, which is precisely what occurred when arbitral proceedings were initiated in Larsen v. Hawaiian Kingdom at the PCA, being a subject of international law. An arbitration agreement was entered into between Larsen and the Hawaiian Kingdom on October 30, 1999, and a notice of arbitration was filed by the claimant on November 8, 1999, with the PCA’s International Bureau. Access to the institutional jurisdiction of the PCA would only be triggered by the juridical fact of the Hawaiian Kingdom being a non-Contracting “State,” and not by Larsen as a “private party.” This juridical fact set in motion and produced legal consequences, which was the convening of the ad hoc arbitral tribunal on June 9, 2000.

Prior to the formation of the tribunal under the auspices of the PCA, as an intergovernmental organization and subject of international law, it required that the international dispute conform to the provisions of the 1907 Hague Convention on the Pacific Settlement of International Disputes (1907 Convention) as a matter of international law. Access to the auspices of the PCA are for Contracting and non-Contracting States, and the Hawaiian Kingdom is a non-Contracting State to the 1907 Convention. Private parties do not have access to the PCA unless sponsored by their State. In this case, the Plaintiff did not sponsor Larsen in its suit, but rather waived its sovereign immunity by consenting to submit their dispute to the PCA for resolution of the dispute by virtue of Article 47, which is a legal rule that provides for non-Contracting States to have access to the jurisdiction of the PCA.

The juridical fact of the Hawaiian State and its continuity produced a legal effect for the International Bureau of the PCA to do a juridical act of accepting the dispute under the auspices of the PCA by virtue of Article 47, being a legal rule. The international dispute between Larsen and the Hawaiian Kingdom was not created by the juridical fact, but rather the juridical fact determined the legal conditions for the PCA’s acceptance of the dispute, which is the juridical act by which the dispute is established in order to have access to the jurisdiction of the PCA.

The significance of the juridical act taken by the International Bureau acknowledging the Hawaiian Kingdom’s continued existence, is that the United States, as a member of the PCA Administrative Council, was fully aware of the Larsen case and did not object to the juridical act by the International Bureau. In fact, the United States entered into an agreement with the Council of Regency to access all records and pleadings of the case.

State continuity of the Hawaiian Kingdom is determined by the rules of customary international law. And while State members of the Administrative Council furnishes to all Contracting States “with an annual Report” in accordance with Article 49, it does represent “State practice [that] covers an act or statement by…State[s] from which views can be inferred about international law,” and it “can also include omissions and silence on the part of States.” The fact that the United States, to include all member States of the Administrative Council and those States whose consulates are Defendants in this case, did not object to the International Bureau’s juridical act of acknowledging the Hawaiian Kingdom’s existence as a non-Contracting State, is a reflection of the practice of States—opinio juris. Furthermore, the Administrative Council is a treaty-based component of an intergovernmental organization comprised of representatives of States, and “their practice is best regarded as the practice of States.”

In other words, the member States of the Administrative Council, by their failure to protest the International Bureauʻs juridical act of acknowledging the Hawaiian Kingdom as a State, is considered the practice of States, which is a part of customary international law. By their silence they admit that according to the rules of customary international law, the Hawaiian Kingdom continues to exist. It also acknowledges that the continued existence of the Hawaiian Kingdom is a juridical fact, and not just a fact.

In the civil law system not every fact produces legal consequences. A chair in the kitchen is a fact, but it doesn’t produce legal consequences. But the existence of a State, which is a subject of international law, is a juridical fact because it does produce legal consequences. The PCA’s juridical act is an acknowledgment that the existence of the Hawaiian Kingdom as a State is a juridical fact in the civil law system. The nearly 150 countries in the world that have a civil law legal system would have to accept that the Hawaiian Kingdom is a juridical fact by virtue of the juridical act done by the PCA. Juridical facts create juridical acts. A juridical act does not operate on its own. It has to stem from a juridical fact.

In common law States, like the United States, facts can produce legal consequences but the facts need to be recognized by a judge, which is called judicial notice. According to the Legal Information Institute, when “a court takes judicial notice of an indisputable fact in a civil case, the fact is considered conclusive.” When one of the parties in a federal lawsuit does not recognize the status of a country as an independent State, the court could, on its own, reach out to the U.S. State Department to see whether that country in question is a State, and take judicial notice of the determination by the State Department that it is a State for purposes of international law. Rule 201(b)(2) of the Federal Rules of Evidence provides that the “court may judicially notice a fact that is not subject to reasonable dispute because it…can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.”

In Hawaiian Kingdom v. Biden, the Magistrate Judge or the District Court Judge can, by judicial notice, recognize the continued existence of the Hawaiian Kingdom by virtue of the actions taken by the PCA because the PCA is a source “whose accuracy cannot reasonably be questioned.” This would then allow the federal court to transform itself into an Article II Court. In its conclusion, the Hawaiian Kingdom stated:

This Court is in the same situation as the PCA regarding jurisdiction as an institution. Where the PCA’s juridical act stems from the juridical fact of the Hawaiian State’s continued existence whereby the PCA established the arbitral tribunal pursuant to Article 47 of the 1907 Convention regarding jurisdiction, this Court, as a matter of jurisdiction, is capable of an Order taking judicial notice of the fact of the Hawaiian State’s continued existence that would grant this Court subject matter and personal jurisdiction pursuant to Article 43 of the 1907 Hague Regulations, where “[t]he authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”

The Hawaiian Kingdom filed an Amended Complaint on August 11, 2021. According to federal court proceedings, when a complaint is filed, a court must take the alleged facts as true. In reviewing a motion to dismiss, all allegations in the complaint and all reasonable inferences that can be drawn from the complaint must be accepted as true and viewed in the light most favorable to the complainant, which in this case is the Hawaiian Kingdom.

In its amended complaint, the Hawaiian Kingdom alleged that the foreign consulates named as defendants in the case are unlawful because they did not get permission to establish themselves as consuls from the Hawaiian Kingdom government. Instead, the consulates were given permission by the United States government. The United States can only give permission for consulates to be established within its own territory and not the territory of the Hawaiian Kingdom despite being belligerently occupied by the United States since 1893. The Hawaiian Kingdom is seeking the Court to declare that these foreign consuls are unlawful under both international law and Hawaiian Kingdom law.

While no media outlet is covering this case, it is gaining the attention of foreign countries that have consulates in Hawai‘i and the U.S. State Department. Since the lawsuit was initiated by the Hawaiian Kingdom on May 20, 2021, three countries closed their consulates in Hawai‘i—the Czech Republic, Finland and India.

Of the summons that were served, 12 foreign consulates failed to respond within 21 days and entries of default were entered by the Clerk of the Court.  These foreign consulates include Austria, Belgium, Chile, Germany, Japan, Luxembourg, Netherlands, Norway, Philippines, South Korea, Spain, and Thailand. Default is where a defendant has failed to defend against a claim that has been brought by the filing of a complaint. By default, these foreign consulates accept the allegation of the Hawaiian Kingdom that it is true they are unlawful. The next stage is to get a judgment of default by the judge so that they can be ordered to close. The Hawaiian Kingdom, however, is prevented from filing a motion for judgment of default because the Court is not an Article II Court that operates in territory belligerently occupied by the United States.

Sweden was the only foreign consulate to respond by filing a Motion to Dismiss on September 21, 2021. Anders Nervell, who is also a law partner at Clay Chapman Iwamura Pulice & Nervell, is named as a defendant in his official capacity as Honorary Consul for Sweden. Nervell does not seek to dismiss the complaint in its entirety, but only over himself because he is claiming personal immunity from the jurisdiction of the federal court.

In his filing, Nervell claims that he is immune from jurisdiction of the federal court under article 71(1) of the Vienna Convention on Consular Relations. The Vienna Convention is a treaty that has been signed and ratified by 181 States, to include the United States.

The federal court ordered the Hawaiian Kingdom to file a response no later than October 20, 2021, and that if Nervell would like to file a reply to the Hawaiian Kingdom response, it must be no later than November 3, 2021.

On September 30, 2021, Federal Magistrate Rom Trader issued an Order granting permission for the International Association of Democratic Lawyers, the National Lawyers Guild and the Water Protectors Legal Collective (IADL-NLG-WPLC) to file their amicus brief that supports the Hawaiian Kingdom’s claim that the Court must transform itself into an Article II Court.

By granting permission, the Court will not only utilize the amicus brief to assist in its decision regarding its transformation into an Article II Court, but it also acknowledges the merit of the IADL-NLG-WPLC’s argument. If it were a frivolous argument, the Court would not have granted permission to file the brief because granting permission is at the discretion of the Court. The IADL-NLG-WPLC filed their amicus brief on October 6, 2021.

The Court’s Order and the filing of the amicus brief was timely for the Hawaiian Kingdom’s response to Nervell.

On October 19, 2021, the Hawaiian Kingdom filed its Response. While citing article XII of the 1852 Treaty of Friendship, Commerce and Navigation between the Hawaiian Kingdom and the Kingdoms of Sweden and Norway that requires any Swedish consul must be approved and admitted by the Hawaiian Kingdom and not by the United States, the Hawaiian Kingdom maintained that the “Court is compelled by international and U.S. constitutional law to first transform itself from an Article III Court to a de facto Article II Court before it may lawfully assert subject-matter and personal jurisdiction to address any of the issues raised” by Nervell. The Hawaiian Kingdom also maintained that Nervell was never a lawful Honorary Consul for Sweden approved by the Hawaiian Kingdom, and therefore could not claim to be protected by the Vienna Convention on Consular Relations. The Vienna Convention only applies to lawfully established consuls.

In its Response, the Hawaiian Kingdom drew attention to the jurisdiction of the court, which it stated in federal court proceedings, a judgment is void “if the court that rendered judgment lacked jurisdiction of the subject-matter, or of the parties, or acted in a manner inconsistent with due process.” In other words, before the Court can make any judgment in this lawsuit, which would include Nervell’s motion to dismiss, it needs to have lawful jurisdiction first. If it doesn’t, which is the position taken by the Hawaiian Kingdom and the IADL-NLG-WPLC in its amicus brief, all judgments made are void and of no effect. The filing of the amicus brief supported the Hawaiian Kingdom’s response.

The Hawaiian Kingdom, in its response, cited the U.S. Supreme Court, in Pennoyer v. Neff, which stated:

No State can exercise direct jurisdiction and authority over persons or property without its territory. The several States are of equal dignity and authority, and the independence of one implies the exclusion of power from all others. And so it is laid down by jurists as an elementary principle that the laws of one State have no operation outside of its territory except so far as is allowed by comity, and that no tribunal established by it can extend its process beyond that territory so as to subject either persons or property to its decisions.

On November 3, 2021, Nervell filed his Reply where he stated that the Hawaiian Kingdom merely gave, in its response, “tendentious ramblings regarding international law,” and it “can play no role here.” The irony of this statement is that the so-called “ramblings regarding international law” were along the same lines as the amicus brief regarding Article II Courts, which the Magistrate Judge accepted as having merit. In other words, international law regarding Article II Courts is playing a “role here.”

Two days later, on November 5, the United States Department of Justice filed a Statement of Interest attempting to influence the Court to dismiss all of the 30 defendant Consuls General and Honorary Consuls, and to set aside entry of default of the 12 Consuls General and Honorary Consuls. The United States filed its Statement of Interest “to set forth its views with respect to the immunity of the consular officers named as defendants in this lawsuit.”

Like Nervell, the United States also attempts to discredit the Hawaiian Kingdom. In its introduction, the United States stated that this “lawsuit is brought by a group of individuals who call themselves the ‘Council of Regency,’ which in turn purports to the be the government of the Hawaiian Kingdom (‘Plaintiff’). Plaintiff requests that the Court declare that the Council of Regency, not the democratically-elected government, is the rightful ruler of Hawaii.”

The United States also adopts the legal arguments in Nervell’s Motion to Dismiss, which provided the opportunity for the Hawaiian Kingdom to respond to the United States’ Statement of Interest, and also to reveal the errors in Nervell’s November 3 reply.

On November 7, 2021, the Hawaiian Kingdom filed its Response to the United States’ Statement of Interest. The Hawaiian Kingdom opened with:

By filing its statement of interest, the UNITED STATES engages in unfounded and disparaging remarks directed at Plaintiff in a poor attempt to present a false narrative of Plaintiff’s status and the UNITED STATES’ factual and undisputed recognition of that status. Exposure of this false narrative, as more fully set forth herein below, opens for clear view of an argument, by the UNITED STATES, that strains credibility and subject to terminable contradiction by the facts and laws presented in these proceedings.

In its Response, the Hawaiian Kingdom views the United States’ use of the term purport as “a pejorative statement inserted in a non-answer pleading that attempts to influence the Court that its argument that the Defendant Consulates have immunity from jurisdiction via the Vienna Convention on Consular Relations has merit.” The Hawaiian Kingdom goes on to state:

As the Council of Regency are officers de facto of a government, albeit a government of an occupied State where democratic principles have no play in a belligerent occupation, the UNITED STATES, as a government itself of an independent and sovereign State, must provide rebuttable evidence that another government of a co-equal independent and sovereign State is not what it claims to be. To do otherwise, is an insult to its dignity because the Council of Regency is the Head of the Hawaiian Kingdom government. According to Oppenheim,

“Since dignity is a recognized quality of States as International Persons, all members of the Family of Nations grant reciprocally to one another by custom certain rights and ceremonial privileges. (These are chiefly the rights to demand—that their heads shall not be libelled and slandered […].) Every State must not only itself comply with the duties corresponding to these rights of other States, but must also prevent its subjects from such acts as violate the dignity of foreign States, and must punish them for acts of that kind which it could not prevent. The Municipal Laws of all States must therefore provide for the punishment of those who commit offences against the dignity of foreign States, and, if the Criminal Law of the land does not contain such provisions, it is no excuse for failure by the respective States to punish offenders.”

Though it cites NERVELL’S REPLY, the UNITED STATES, like NERVELL, fails to counter the factual allegations in the Amended Complaint that: (a) the UNITED STATES, to include Sweden and all States of the other Consular Defendants, as members of the Permanent Court of Arbitration’s Administrative Council, acknowledged the HAWAIIAN KINGDOM as a non-Contracting State under Article 47 of the 1907 Hague Convention on the Pacific Settlement of International Disputes, and the Council of Regency as its government and; (b) the UNITED STATES, by its embassy in The Hague, entering into an agreement with the Council of Regency, as the government of the Hawaiian Kingdom, to have access to all records and pleadings of the arbitral proceedings.

The Response stated that the arguments by the United States and Nervell “are blatantly unsubstantiated denials and desperate attempts by both to distract this Court from the facts of this case. Furthermore, Sweden, as a co-equal sovereign and independent State is responsible for NERVELL’s pleadings, which has a tenor of arrogance.” The Hawaiian Kingdom then went on to address the flaws of Nervell’s citing of State of Hawai‘i and federal court decisions regarding the Hawaiian Kingdom as they serve as precedent cases. Nervell fails to mention that these decisions are in personam, which only bind the litigants of that particular case, and not decisions in rem, which would apply to a thing, such as the territory of the Hawaiian Kingdom.

All NERVELL cites in his reply is both State of Hawai‘i and federal court decisions regarding the Hawaiian Kingdom. These court decisions only reflect the allegations of facts made or not made by the defendants in the cases cited. It has no application to the instant case before this Court because these decisions are in personam and not in rem. What these decisions do provide, however, are instructional for defendants that claim the Hawaiian Kingdom exists in their particular case, to provide evidence of the Hawaiian State’s existence. NERVELL’S REPLY cites United States v. Lorenzo, where the court stated, “[t]he appellants have presented no evidence that the Sovereign Kingdom of Hawaii is currently recognized by the federal government (emphasis added).” The operative words here are “presented no evidence.”

NERVELL’s REPLY further goes on to cite Keliihuluhulu v. Keanaaina, where the federal court stated, “[a]s stated by the Hawai‘i Intermediate Court of Appeals (“ICA”), a statement that is as true now as it was when the ICA stated in 1994, ‘presently there is no factual (or legal) basis for concluding that the [Hawaiian] exists as a state in accordance with recognized attributes of a state’s foreign nature.’ Hawaii v. French, 77 Haw. 222, 228, 883 P.2d 644, 650 (CT. App. 1994) (quotations omitted) (emphasis added).” The operative word here is “presently.” In other words, these federal court decisions clearly state that the defendants provided no factual or legal evidence of the Hawaiian Kingdom’s existence as a State.

On the contrary, the HAWAIIAN KINGDOM, as the Plaintiff, has provided “a factual (or legal) basis for concluding that the [Hawaiian] Kingdom exists as a state” despite the UNITED STATES admitted illegal overthrow of its government on January 17, 1893. The Amici also address the French case in their filed amicus brief [ECF 96].

“In Defendant County of Kaua‘i’s Motion to Dismiss Plaintiff’s original Complaint, the County cites Hawai‘i v. French, 77 Haw. 222, 228, 883 P.2d 644, 650 (Ct. App. 1994) in support of the statement that there is ‘no factual (or legal) basis for concluding that the [Hawaiian] Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature. [ECF No. 15-1, Page ID #158]. This assertion is factually and legal incorrect. The 1994 ruling in French stands in stark contrast to the 2001 Arbitral Award of the Permanent Court of Arbitration of the Larsen v. Hawaiian Kingdom and the PCA Annual Reports from 2000-2011, that explicitly found Hawai‘i to be a continued state to-date under international law (emphasis added).”

The Court’s Order granting permission for Amici to file their amicus brief stated that the “briefing ‘supplement[s] the efforts of counsel, and draw[s] the court’s attention to law that escaped consideration.’” As such, the amicus brief, which supplements the Amended Complaint regarding its jurisdictional statement, must also be considered true. Reinforcing the merit of the amicus is that the Court granted permission to the Amici to file their brief.

The Hawaiian Kingdom concludes its Response to the United States Statement of Interest with:

The jurisdiction of the Court as an Article II Court is consequential to the existence of the Hawaiian Kingdom as a State. In the Lotus case, the Permanent Court of International Justice stated, “[t]he first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State.” There is no permission from the HAWAIIAN KINGDOM giving its consent to the UNITED STATES, whether by its Congress or otherwise, to establish an Article III Court within the territorial jurisdiction of the HAWAIIAN KINGDOM. In the absence of consent by the HAWAIIAN KINGDOM, authorization for this Court to transform into an Article II Court is by virtue of Article 43 of the Hague Regulations.

Until this Court transforms itself into an Article II Court, it is precluded from considering the relief sought by the UNITED STATES SOI and NERVELL’S MTD because, as an Article III Court, it does not possess subject matter and personal jurisdiction. In colloquial terms, the UNITED STATES, on behalf of the Consular Defendants, including NERVELL, appear to be asking for a chicken without first qualifying the egg. Furthermore, the Federal Rules of Civil Procedure, the Local Rules of the Court, and Court decisions, to include the United States Supreme Court, are instructional and not binding until the Court, as an Article II Court, declares otherwise in conformity with the laws of armed conflict—international humanitarian law.