Dr. Keanu Sai will be covering in his presentation some of the subjects in his latest article “Setting the Record Straight on Hawaiian Indigeneity” that was recently published in volume 3 of the Hawaiian Journal of Law and Politics at the University of Hawai‘i at Manoa. Dr. Sai asked that everyone read the article before his presentation on April 8, 2021.
Explicit Recognition by the United States of America of the Continued Existence of the Hawaiian Kingdom and its government—the Council of Regency
HONOLULU, 5 April 2021 — On 15 March 2021, Dr. David Keanu Sai, Chairman of the Council of Regency, and Mrs. Kau‘i Sai-Dudoit, Minister of Finance, was notified that the “Securities Commission of the State of Hawaii is about to commence an enforcement action against [them] based upon the sale of unregistered Kingdom of Hawaii Exchequer Bonds, in violation of HRS § 485A-301.” In § 485A-201(2) of the statute it states that bonds issued “by a foreign government with which the United States maintains diplomatic relations” are exempt.
The State of Hawai‘i has taken the dubious position that the Council of Regency is not a government and that the Hawaiian Kingdom does not exist. This position, however, runs counter to the United States explicit recognition of the continuity of the Hawaiian Kingdom, as a State, and its government—the Council of Regency, when arbitral proceedings were instituted at the Permanent Court of Arbitration (PCA) on 8 November 1999 in Larsen v. Hawaiian Kingdom. This explicit recognition by the United States has serious consequences for the State of Hawai‘i because it triggered the Supremacy Clause under federal law, where “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
The United States Supreme Court, in United States v. Curtiss-Wright Export Corp., stated that the rule of the Supremacy Clause holds “in the case of international compacts and agreements [when it forms] the very fact that complete power over international affairs is in the National Government and is not and cannot be subject to any curtailment or interference on the part of the several States.”
Attached to this press release is a Preliminary Report of the Royal Commission of Inquiry that explains not only the United States explicit recognition of the Council of Regency and the continued existence of the Hawaiian Kingdom, but also by the explicit recognition by the other treaty partners of the Hawaiian Kingdom, which includes Austria, Belgium, Denmark, France, Germany, Great Britain, Hungary, Italy, Japan, Luxembourg, Netherlands, Norway, Portugal, Russia, Spain, Sweden, and Switzerland.
The Supremacy Clause has rendered the State of Hawai‘i incapacitated because under international law, congressional acts, which includes the 1959 Statehood Act, have no effect in the territory of a foreign State unless it has the consent by the government of that State. There is no consent from the Hawaiian government since 1893 that would allow American municipal laws to have any effect within the territory of the Hawaiian Kingdom. This was precisely the dispute between Larsen and the Council of Regency. As the PCA stated:
Lance Paul Larsen, a resident of Hawaii, brought a claim against the Hawaiian Kingdom by its Council of Regency (“Hawaiian Kingdom”) on the grounds that the Government of the Hawaiian Kingdom is in continual violation of: (a) its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America, as well as the principles of international law laid down in the Vienna Convention on the Law of Treaties, 1969 and (b) the principles of international comity, for allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.
American municipal laws include the constitution and laws of the State of Hawai‘i. Under international criminal law, the unlawful imposition of American municipal laws within the territory of the Hawaiian Kingdom constitutes the war crime of usurpation of sovereignty. War crimes have no statute of limitation and a person who commits a war crime can be prosecuted even after 50 years from the time the war crime was committed. Under international law, war criminals are subjected to be prosecuted by all States when they enter the State’s territory even though the crimes were committed outside of their territories. Finland and Switzerland are currently prosecuting war criminals for crimes committed in Liberia.
The only way for the State of Hawai‘i and its Counties to continue to govern is in accordance with international humanitarian law and the law of occupation. From a domestic standpoint, the Supremacy Clause renders the existence of the State of Hawai‘i unconstitutional and void because its existence is in conflict with treaties that the United States has ratified, which includes the 1849 Hawaiian-American Treaty of Friendship, Commerce and Navigation. To continue to govern would be to transform themselves into an occupying government within the limits and what is allowed under international law.
In a letter of correspondence from Dr. Sai, as Head of the Royal Commission of Inquiry (RCI), to State of Hawai‘i Attorney General Clare E. Connors, dated 2 June 2020, the Attorney General was notified that:
I am not aware whether you were informed of three meetings I had in 2015 with Mike McCartney, former chief of staff for Governor David Ige, at his office in the Executive Chambers regarding the subject of war crimes and the American occupation. This prompted a report I submitted to him that summarized what we discussed in those three meetings and how the State of Hawai‘i has a duty, under international humanitarian law, to transform itself into a Military government by virtue of Article V, section 5 of the Constitution of the State of Hawai‘i. United States practice for Military government is covered in United States Army and Navy FM 27-5, and occupation of an occupied State is covered in FM 27-10. The Adjutant General, MG Kenneth Hara, should be aware of these regulations and the function of a Military government.
…
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.
Both the National Lawyers Guild (NLG) and the International Association of Democratic Lawyers (IADL) have called upon the State of Hawai‘i to transform itself into an occupying government. In its letter to Governor David Ige of 10 November 2020, the NLG stated:
We urge you, Governor Ige, to proclaim the transformation of the State of Hawai‘i and its Counties into an occupying government pursuant to the Council of Regency’s proclamation of June 3, 2019, in order to administer the laws of the Hawaiian Kingdom. This would include carrying into effect the Council of Regency’s proclamation of October 10, 2014 that bring the laws of the Hawaiian Kingdom in the nineteenth century up to date. We further urge you and other officials of the State of Hawai‘i and its Counties to familiarize yourselves with the contents of the recent eBook published by the RCI and its reports that comprehensively explains the current situation of the Hawaiian Islands and the impact that international humanitarian law and human rights law have on the State of Hawai‘i and its inhabitants.”
In its resolution of 7 February 2021, the “IADL fully supports the NLG’s November 10, 2020 letter to State of Hawai‘i Governor David Ige urging him to ‘proclaim the transformation of the State of Hawai‘i and its Counties into an occupying government pursuant to the Council of Regency’s proclamation of June 3, 2019, in order to administer the laws of the Hawaiian Kingdom. This would include carrying into effect the Council of Regency’s proclamation of October 10, 2104 that bring the laws of the Hawaiian Kingdom in the nineteenth century up to date.”
The actions taken by the State of Hawai‘i against government officials of the Hawaiian Kingdom also constitutes a violation of Article 54 of the Fourth Geneva Convention, which states, “The Occupying Power may not alter the status of public officials…in the occupied territories, or in any way apply sanctions to or take any measures of coercion or discrimination against the them.” The Fourth Geneva Convention was ratified by the United States Senate on 6 July 1955 and came into force on 2 February 1956. As such, the Fourth Geneva Convention comes under the Supremacy Clause.
In light of the awareness of the occupation by the leadership of the State of Hawai‘i, these allegations against the Hawaiian government officials constitute malicious intent. As pointed out by Professor Lenzerini, under the rules of international law, “the working relationship between the Regency and the administration of the occupying State would 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.” This unwarranted attack is a violation of the law of occupation, and as a proxy for the United States, it also constitutes an international wrongful act.
Jindal Global Law School’s Centre for International Legal Studies is committed to the study of emerging areas of interest in public international law. Its mandate is to undertake collaborative research within JGU and also with other national and international entities in various areas of international law. The Centre designs training courses, lectures, seminars, conferences, and symposia for students and professionals working in the field and advises national and international public bodies on matters of interpretation and application of international law.
About Jindal Global Law School
Jindal Global Law School (JGLS), the flagship faculty for O.P. Jindal Global (Institution of Eminence Deemed To Be University), is an ambitious entrant into the Indian, and indeed the global—academic scene. The model is simple. Faculty with outstanding academic qualifications have been assembled, given world class facilities, extensive academic freedom, and embedded—in many cases re-embedded—into the Indian academic fabric. The result is an institution for research and scholarship that exists at a unique set of crossroads for almost any research issue. JGLS combines perspectives unique to the Global North as well as to the Global South, applies the potential for global collaboration towards local application, has the ability to disseminate Indian legal and policy research to a global audience, enjoys the in-house expertise to engage in seamless comparative law review, to bridge jurisdictional divides, and to draw upon a global set of faculty contacts to coordinate scholars and scholarship.
About Addis Ababa University International Humanitarian Law Clinic
The Addis Ababa University International Humanitarian Law Clinic offers a venue for the learning, research, debate and awareness raising of International Humanitarian Law. Only a few months after its establishment, the AAU IHL Clinic has become an important emerging voice in International Humanitarian Law, posting articles by Students, Scholars and IHL practitioners. Our blog is attracting readers from all over the world. Our articles range from theoretical issues of IHL to practical situations of armed conflicts. The AAU IHL Clinic encourages learners to pursue and develop legal research, analytical thinking, legal analysis and problem-solving skills through practical applications of legal rules and principles to real-world situations. It is a platform where students develop their skills in writing, publishing, presentation and correspondence. It is also a venue for scholars and practitioners to write about and present on issues they deem relevant to the proper enforcement of IHL rules. Through projects chosen by the Clinic and our partners, students will get a unique experience in IHL, within the classroom and beyond.
Dr. Keanu Sai will present on “The Hawaiian Kingdom, United States and International Law” on April 8 at 7:30pm (India Time), which is 9am (US Eastern Time) and 4am (Hawai‘i Time). To register here for the event.
November 28th is the most important national holiday in the Hawaiian Kingdom. It is the day Great Britain and France formally recognized the Hawaiian Islands as an “independent state” in 1843, and has since been celebrated as “Independence Day,” which in the Hawaiian language is “La Ku‘oko‘a.” Here follows the story of this momentous event from the Hawaiian Kingdom Board of Education history textbook titled “A Brief History of the Hawaiian People” published in 1891.
**************************************
The First Embassy to Foreign Powers—In February, 1842, Sir George Simpson and Dr. McLaughlin, governors in the service of the Hudson Bay Company, arrived at Honolulu on business, and became interested in the native people and their government. After a candid examination of the controversies existing between their own countrymen and the Hawaiian Government, they became convinced that the latter had been unjustly accused. Sir George offered to loan the government ten thousand pounds in cash, and advised the king to send commissioners to the United States and Europe with full power to negotiate new treaties, and to obtain a guarantee of the independence of the kingdom.
Accordingly Sir George Simpson, Haalilio, the king’s secretary, and Mr. Richards were appointed joint ministers-plenipotentiary to the three powers on the 8th of April, 1842.
Mr. Richards also received full power of attorney for the king. Sir George left for Alaska, whence he traveled through Siberia, arriving in England in November. Messrs. Richards and Haalilio sailed July 8th, 1842, in a chartered schooner for Mazatlan, on their way to the United States*
*Their business was kept a profound secret at the time.
Proceedings of the British Consul—As soon as these facts became known, Mr. Charlton followed the embassy in order to defeat its object. He left suddenly on September 26th, 1842, for London via Mexico, sending back a threatening letter to the king, in which he informed him that he had appointed Mr. Alexander Simpson as acting-consul of Great Britain. As this individual, who was a relative of Sir George, was an avowed advocate of the annexation of the islands to Great Britain, and had insulted and threatened the governor of Oahu, the king declined to recognize him as British consul. Meanwhile Mr. Charlton laid his grievances before Lord George Paulet commanding the British frigate “Carysfort,” at Mazatlan, Mexico. Mr. Simpson also sent dispatches to the coast in November, representing that the property and persons of his countrymen were in danger, which introduced Rear-Admiral Thomas to order the “Carysfort” to Honolulu to inquire into the matter.
Recognition by the United States—Messres. Richards and Haalilio arrived in Washington early in December, and had several interviews with Daniel Webster, the Secretary of State, from whom they received an official letter December 19th, 1842, which recognized the independence of the Hawaiian Kingdom, and declared, “as the sense of the government of the United States, that the government of the Sandwich Islands ought to be respected; that no power ought to take possession of the islands, either as a conquest or for the purpose of the colonization; and that no power ought to seek for any undue control over the existing government, or any exclusive privileges or preferences in matters of commerce.” *
*The same sentiments were expressed in President Tyler’s message to Congress of December 30th, and in the Report of the Committee on Foreign Relations, written by John Quincy Adams.
Success of the Embassy in Europe—The king’s envoys proceeded to London, where they had been preceded by the Sir George Simpson, and had an interview with the Earl of Aberdeen, Secretary of State for Foreign Affairs, on the 22d of February, 1843.
Lord Aberdeen at first declined to receive them as ministers from an independent state, or to negotiate a treaty, alleging that the king did not govern, but that he was “exclusively under the influence of Americans to the detriment of British interests,” and would not admit that the government of the United States had yet fully recognized the independence of the islands.
Sir George and Mr. Richards did not, however, lose heart, but went on to Brussels March 8th, by a previous arrangement made with Mr. Brinsmade. While there, they had an interview with Leopold I., king of the Belgians, who received them with great courtesy, and promised to use his influence to obtain the recognition of Hawaiian independence. This influence was great, both from his eminent personal qualities and from his close relationship to the royal families of England and France.
Encouraged by this pledge, the envoys proceeded to Paris, where, on the 17th, M. Guizot, the Minister of Foreign Affairs, received them in the kindest manner, and at once engaged, in behalf of France, to recognize the independence of the islands. He made the same statement to Lord Cowley, the British ambassador, on the 19th, and thus cleared the way for the embassy in England.
They immediately returned to London, where Sir George had a long interview with Lord Aberdeen on the 25th, in which he explained the actual state of affairs at the islands, and received an assurance that Mr. Charlton would be removed. On the 1st of April, 1843, the Earl of Aberdeen formally replied to the king’s commissioners, declaring that “Her Majesty’s Government are willing and have determined to recognize the independence of the Sandwich Islands under their present sovereign,” but insisting on the perfect equality of all foreigners in the islands before the law, and adding that grave complaints had been received from British subjects of undue rigor exercised toward them, and improper partiality toward others in the administration of justice. Sir George Simpson left for Canada April 3d, 1843.
Recognition of the Independence of the Islands—Lord Aberdeen, on the 13th of June, assured the Hawaiian envoys that “Her Majesty’s government had no intention to retain possession of the Sandwich Islands,” and a similar declaration was made to the governments of France and the United States.
At length, on the 28th of November, 1843, the two governments of France and England united in a joint declaration to the effect that “Her Majesty, the queen of the United Kingdom of Great Britain and Ireland, and His Majesty, the king of the French, taking into consideration the existence in the Sandwich Islands of a government capable of providing for the regularity of its relations with foreign nations have thought it right to engage reciprocally to consider the Sandwich Islands as an independent state, and never to take possession, either directly or under the title of a protectorate, or under any other form, of any part of the territory of which they are composed…”
This was the final act by which the Hawaiian Kingdom was admitted within the pale of civilized nations. Finding that nothing more could be accomplished for the present in Paris, Messrs. Richards and Haalilio returned to the United States in the spring of 1844. On the 6th of July they received a dispatch from Mr. J.C. Calhoun, the Secretary of State, informing them that the President regarded the statement of Mr. Webster and the appointment of a commissioner “as a full recognition on the part of the United States of the independence of the Hawaiian Government.”
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.
After the Guardian reporter reached out to the U.S. Department of State and State of Hawai‘i Governor for comment on Jennifer Ruggles’ position that war crimes are being committed throughout the Hawaiian Islands and on the memorandum of the United Nations Independent Expert to State of Hawai‘i Judges stating that the Hague and Geneva Conventions obligate the United States to administer Hawaiian Kingdom laws and not the domestic laws of the United States, both offices gave no comment. If Hawai‘i was not an occupied State, but rather legally a part of the United States, and that the Hague and Geneva Conventions don’t apply to Hawai‘i, the State Department and the Governor’s office would have surely stated that. Instead they gave no comment. When a government agency gives no comment it would imply that they cannot deny the facts of the story.
Dr. deZayas statement that Hawai‘i is “formally” a part of the United States. Careful statement made because the word formally is defined as “pertaining to the outward aspect of something as distinguished from its substance or material.” Formally is not the same as legally.
Spokesman from the United Nations Office of the Commissioner for Human Rights stated “They are [Dr. deZayas’] own views.” This is true because it was his view as United Nations Independent Expert before his term expired in April 2018.
In his February 25, 2018 memorandum to the State of Hawai‘i, Dr. deZayas clearly stated, “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.”
The Guardian reported, “Keanu Sai, a political science lecturer at the University of Hawaii and member of the Hawaiian Kingdom provisional government, says the unilateral annexation of Hawaii by passing a law was tantamount to the US passing a law annexing the UK or any other country. Sai said: ‘You can’t pass a law annexing a foreign country.'”
The Hawaiian nationality is termed Hawaiian subject and not Hawaiian citizen. The distinction between subject and citizen is that the former is the political status of an individual in a monarchical form of government, whether absolute or constitutional, and the latter is the political status of an individual in a republic or non-monarchical government.
Under Hawaiian law, nationality can be acquired four ways:
Born within Hawaiian territory—jus soli, also called native-born or natural-born;
Born outside of Hawaiian territory from parents with Hawaiian nationality—jus sanguinis;
Naturalize. The Minister of the Interior, with the approval of the Monarch, shall have the power in person upon the application of any alien foreigner who shall have resided within the Kingdom five years or more, stating his intention to become a permanent resident of the Kingdom, to administer the oath of allegiance to such foreigner, if satisfied that it will be for the good of the Kingdom. (§429, Article VIII, Hawaiian Civil Code);
Denizen. The Monarch can confer upon any alien resident abroad, or temporarily resident in this Kingdom, letters patent of denization, conferring upon such alien, without abjuration of allegiance, all the rights, privileges and immunities of a native. The letters patent shall render the denizen in all respects accountable to the laws of the Hawaiian Kingdom, and impose upon him the like fealty to the King, as if he had been naturalized. (§433, Article VIII, Hawaiian Civil Code).
Once a State is occupied, international law preserves the status quo of the occupied State as it was before the occupation began. To preserve the nationality of the occupied State from being manipulated by the occupying State to its advantage, international law only allows individuals born within the territory of the occupied State to acquire the nationality of their parents. In order to preserve the status quo, Article 49 of the 1949 Fourth Geneva Convention mandates that the “Occupying Power shall not…transfer parts of its own civilian population into the territory it occupies.” To do so is a war crime.
For individuals, who were born within Hawaiian territory, to be a Hawaiian subjects they must be a direct descendant of an individual who was a Hawaiian subject prior to the illegal overthrow of the Hawaiian Kingdom government on January 17, 1893. All other individuals born after this date to the present are aliens who can only acquire the nationality of their parents.
According to the 1890 government census, Hawaiian subjects numbered 48,107, with the aboriginal Hawaiians, both pure and part, numbering 40,622, being 84% of the national population, and the non-aboriginal Hawaiians numbering 7,485, being 16%. Despite the massive migrations of foreigners to the Hawaiian Islands since 1893, which, according to the State of Hawai‘i Office of Hawaiian Affairs, numbers 1,302,939 in 2009, with the aboriginal Hawaiian population at 322,812 (25.3%), the status quo of the national population of the Hawaiian Kingdom is maintained.
In other words, with the increase in numbers of Hawaiian subjects, both aboriginal and non-aboriginal, since 1898, the status quo of the Hawaiian national population has been maintained to date. Therefore, under the international laws of occupation, the aboriginal Hawaiian population of 322,812 in 2009 would continue to be 84% of the Hawaiian national population, and the non-aboriginal Hawaiian population of 61,488 would continue to be 16%. The balance of the population in 2009, being 918,639, are aliens.
RT Moscow film producer Vyacheslav Guz and his film crew were recently in the Hawaiian Kingdom in August 2017 filming a documentary that includes the American occupation of Hawai‘i. The film covers three countries whose governments were overthrown by the United States: Guatemala, Libya and Hawai‘i.
In March of 2000, the United States, by its Department of State, recognized, de facto, the acting Council of Regency that stemmed from arbitration proceedings in Larsen v. Hawaiian Kingdom held at the Permanent Court of Arbitration.
When the South China Sea Tribunal cited in its award on jurisdiction the Larsen v. Hawaiian Kingdom case held at the Permanent Court of Arbitration, it should have garnered international attention, especially after the Court acknowledged the Hawaiian Kingdom as a state and Larsen a private entity. The Larsen case was a dispute between a Hawaiian national and his government, who he alleged was negligent for allowing the unlawful imposition of American laws over Hawaiian territory that led to the alleged war crimes of unfair trial, unlawful confinement and pillaging. Larsen sought to have the Tribunal adjudge that the United States of America violated his rights, after which he sought the Tribunal to adjudge that the Hawaiian government was liable for those violations. Although the United States was formally invited it chose not to join in the arbitration thus raising the indispensable third party rule for Larsen to overcome. What is almost completely unknown today is Hawai‘i’s international status as an independent and sovereign state, called the Hawaiian Kingdom, that has been in an illegal state of war with the United States of America since 16 January 1893. The purpose of this article will be to make manifest, in the light of international law, the current illegal state of war that has gone on for well over a century and its profound impact on the international community today.
