The U.S. Department of Interior (DOI) will be in the Hawaiian Kingdom holding public meetings throughout the Islands from June 23 to August 8, 2014 to get responses from the Native Hawaiian community to consider reestablishing a government-to-government relationship between the United States and the Native Hawaiian community. Secretary of the Interior Sally Jewell who visited the country last year heads the DOI.

In a press release of June 18, 2014, the DOI stated, “The purpose of such a relationship would be to more effectively implement the special political and trust relationship that currently exists between the Federal government and the Native Hawaiian community. Today’s action, known as an Advanced Notice of Proposed Rulemaking (ANPRM), provides for an extensive series of public meetings and consultations in Hawaii and Indian Country to solicit comments that could help determine whether the Department develops a formal, administrative procedure for reestablishing an official government-to-government relationship with the Native Hawaiian community and if so, what that procedure should be.”

“When I met with members of the Native Hawaiian community last year during my visit to the state, I learned first-hand about Hawaii’s unique history and the importance of the special trust relationship that exists between the Federal government and the Native Hawaiian community,” said Secretary of the Interior Sally Jewell. “Through this step, the Department is responding to requests from not only the Native Hawaiian community but also state and local leaders and interested parties who recognize that we need to begin a conversation of diverse voices to help determine the best path forward for honoring the trust relationship that Congress has created specifically to benefit Native Hawaiians.”

At the center of the public meetings are five “threshold questions” for the community to respond to:

1. Should the Secretary propose an administrative rule that would facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community?

2. Should the Secretary assist the Native Hawaiian community in reorganizing its government, with which the United States could reestablish a government-to-government relationship?

3. If so, what process should be established for drafting and ratifying a reorganized Native Hawaiian government’s constitution or other governing document?

4. Should the Secretary instead rely on the reorganization of a Native Hawaiian government through a process established by the Native Hawaiian community and facilitated by the State of Hawaii, to the extent such a process is consistent with Federal law?

5. If so, what conditions should the Secretary establish as prerequisites to Federal acknowledgment of a government-to-government relationship with the reorganized Native Hawaiian government?

The DOI stated, “Over many decades, Congress has enacted more than 150 statutes that specifically recognize and implement this trust relationship with the Native Hawaiian community, including the Hawaiian Homes Commission Act, the Native Hawaiian Education Act, and the Native Hawaiian Health Care Act. The Native Hawaiian community, however, has not had a formal governing entity since the overthrow of the Kingdom of Hawaii in 1893. In 1993, Congress enacted the Apology Resolution which offered an apology to Native Hawaiians on behalf of the United States for its role in the overthrow and committed the U.S. government to a process of reconciliation. In 2000, the Department of the Interior and the Department of Justice jointly issued a report on the reconciliation process that identified self-determination for Native Hawaiians under Federal law as their leading recommendation.”

A careful review of the joint report by the DOI and the Department of Justice, the report acknowledges that the Hawaiian Kingdom was a recognized sovereign and independent State. “The United States clearly viewed the Kingdom of Hawai‘i as an independent nation as evidenced by the negotiation and signing of several treaties (p. 22).” The report also acknowledges President Cleveland’s withdrawal of the first treaty of annexation entered into with the so-called provisional government and President Harrison’s administration; the subsequent investigation, which concluded the provisional government was self-proclaimed and that the United States was responsible for the illegal overthrow of the Hawaiian government; and the executive agreement between the Queen and the President whereby the U.S. would restore the government and the Queen to grant amnesty.  “President Cleveland did not desire, nor did he have the support of Congress, to engage United States military forces to declare war against the American citizens who controlled the Provisional Government (p. 28).” This was an act of non-compliance to the agreement of restoration, which allowed the insurgents to maintain unlawful control.

The report also acknowledges the failure of the second treaty of annexation entered into between the insurgency, calling themselves the Republic of Hawai‘i, and President McKinley, which resulted in Congress passing a joint resolution instead. The reported stated:

“With the election of President McKinley in 1896, the pro-annexation forces gained strength. The Republic of Hawai‘i continued to push for annexation although many Native Hawaiians were opposed. In September 1897, the “Petition against the Annexation of Hawaii Submitted to the U.S. Senate in 1897 by the Hawaiian Patriotic League of the Hawaiian Islands”, expressed the views of Native Hawaiians. The petition, signed by 21,169 people (more than half of the Native Hawaiian population) from Kaua‘i, Maui, Hawai‘i, Moloka‘i, O‘ahu, Lana‘i, and Kaho‘olawe provides evidence that Native Hawaiians were against annexation and wanted independence under a Monarchy (p. 29).”

…

“Consistent with the wishes expressed by Native Hawaiians, the Treaty of Annexation failed to pass the United States Senate by a two-thirds majority vote. However, by 1898, with the outbreak of the Spanish-American War in both the Pacific and Caribbean, the Newlands Joint Resolution of Annexation (Annexation Resolution) was offered by the pro-annexation forces and passed by a simple majority of the United States Senate and House of Representatives, thus becoming the instrument used to effect the annexation of the Republic of Hawai‘i. The constitutionality of the use of a Joint Resolution in lieu of a Treaty to annex Hawai‘i was a contentious issue at the time (p. 30).”

From this point the report continues a narrative of historical events to the present day that “assumes” the joint resolution of annexation extinguished the Hawaiian Kingdom as an independent and sovereign State. To support this erroneous position, the report restates a section of the 1993 Apology resolution, “Whereas the Newlands [Annexation] Resolution effected the transaction between the Republic of Hawai‘i and the United States Government (p. 30).” This resolution is problematic on two points: first, as an act of Congress the resolution has no effect beyond United States territory; and, second, the Republic of Hawai‘i was not a government, but self-declared, which the Apology resolution admitted.

What the report conveniently omits is the conclusion of the Department of Justice’s Office of Legal Counsel opinion on the “Newlands [Annexation] Resolution” in its 1988 Opinion “Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea.”  Douglas Kmiec, Acting Assistant Attorney General, authored the memorandum for Abraham D. Sofaer, legal advisor to the U.S. State Department. The Opinion states that the “clearest source of constitutional power to acquire territory is the treaty making power (p. 247).” When it came to Hawai‘i, however, Kmiec had a difficult time explaining how the Congress could acquire territory by a joint resolution. Kmiec referenced a U.S. constitutional scholar, Professor Willoughby, who stated:

“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 not denied, but is 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 (p. 252).”

After covering the limitation of Congressional authority and the objections made by members of the Congress, Kmiec 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 (p. 252).” There has been no followup opinion from the Department of Justice’s Office of Legal Counsel since 1988 that qualified how Congressional legislation could annex foreign territory. If the Department of Justice was unclear as to which constitutional power Congress exercised in 1898 when it purported to have annexed Hawaiian territory by joint resolution, it should still be unclear as to how Congress “has enacted more than 150 statutes that specifically recognize and implement this trust relationship with the Native Hawaiian community, including the Hawaiian Homes Commission Act, the Native Hawaiian Education Act, and the Native Hawaiian Health Care Act” stated in its press release.

It is clear that the Department of Justice had this information since 1988, but for obvious reasons did not cite that opinion in its joint report with the DOI that covered the portion on annexation (p. 26-30). To do so, would have completely undermined all the statutes the Congress has enacted for Hawai‘i, which would also include the lawful authority of the State of Hawai‘i government itself since it was created by an Act of Congress in 1959.

This was precisely the significance of the Office of Hawaiian Affairs CEO Dr. Kamana‘opono Crabbe’s questions to Secretary of State John Kerry. Without any evidence that the United States extinguished the Hawaiian Kingdom as an independent and sovereign State under international law, the Hawaiian Kingdom is presumed to still be in existence and therefore under an illegal and prolonged occupation.

So before the “five threshold questions that will be the subject of the forthcoming public meetings regarding whether the Federal Government should reestablish a government-to-government relationship with the Native Hawaiian community” can be answered by the community, the only question that should be posed to the DOI at the public meetings is:

“Since the Department of Justice’s Office of Legal Counsel did not respond with evidence to the Office of Hawaiian Affairs CEO Dr. Kamana‘opono’s questions dated May 5, 2014 that the Hawaiian Kingdom does not exist as an independent and sovereign State under international law, I have to presume the Hawaiian Kingdom continues to exist. Therefore, my question to you is by what authority is the Department of Interior claiming to be here in Hawai‘i, being a foreign sovereign and independent State, since the Department of Justice has already concluded that Congress could not have annexed the Hawaiian Islands by a joint resolution?”

It has been nearly a month since the Office of Hawaiian Affairs (OHA) CEO Dr. Kamana‘opono Crabbe posed four questions to Secretary of State Kerry in a letter dated May 5, 2014.

• First, does the Hawaiian Kingdom, as a sovereign independent State, continue to exist as a subject of international law?
• Second, if the Hawaiian Kingdom continues to exist, do the sole-executive agreements bind the United States today?
• Third, if the Hawaiian Kingdom continues to exist and the sole-executive agreements are binding on the United States, what effect would such a conclusion have on United States domestic legislation, such as the Hawai‘i Statehood Act, 73 Stat. 4, and Act 195?
• Fourth, if the Hawaiian Kingdom continues to exist and the sole-executive agreements are binding on the United States, have the members of the Native Hawaiian Roll Commission, Trustees and staff of the Office of Hawaiian Affairs incurred criminal liability under international law?

These questions centered on the existence of the Hawaiian Kingdom and generated so much attention that it has awakened a sleeping giant—the Hawaiian community. Academics and professionals that stood shoulder to shoulder behind Dr. Crabbe at his press conference on May 12, 2014 showed their solidarity and support. One of these individuals who stood directly behind Dr. Crabbe was Professor Williamson Chang, senior law professor at the University of Hawai‘i Richardson School of Law. In a Star-Advertiser article, Professor Chang described the letter as “a profound and important moment in history.” “He has raised an issue that has not been approached before. It’s remarkable that a state agency is asking these questions,” he said.

What has replaced the rhetoric of politicians and sovereignty activists that often distorts Hawaiian history and law has been replaced by historical accuracy and legal sophistication. Academics armed with Ph.D.’s have begun to address Hawai‘i’s revisionist history that became institutionalized since the American occupation began in 1898, and attorneys have begun to apply this information in the courts throughout Hawai‘i.

From an international law perspective, these questions were cleverly worded and organized and are grounded in the recognized principle of international law called the presumption of continuity of an established sovereign State, which is similar to the principle of presumption of innocence. An assumption is a conclusion “without” facts and a presumption is a conclusion “with” facts. So when a person is accused of committing a crime that person is presumed to be innocent until proven guilty beyond a reasonable doubt because of the fact that the accused has legal rights. In international law, an established sovereign State is presumed to continue to exist because of the fact that it has legal rights, until evidence can be shown by another State that it has extinguished the sovereignty of the former State.

In 2001, the Permanent Court of Arbitration in the Netherlands verified the existence of the Hawaiian Kingdom as an independent State in Larsen v. Hawaiian Kingdom, 119 Int’l L. Rep. 566, 581 (2001) . The Court stated in its arbitration award, “in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties.” As an established State under international law since the nineteenth century, the Hawaiian Kingdom has these legal rights that apply to all States:

1. States are judicially equal;
2. Each State enjoys the rights inherent in full sovereignty;
3. Each State has the duty to respect the personality of other States;
4. The territorial integrity and political independence of the State are inviolable;
5. Each State has the right freely to choose and develop its own political, social, economic and cultural systems; and
6. Each State has the duty to comply fully and in good faith with its international obligations and to live in peace with other States.

According to Professor Crawford, The Creation of States in International Law (2006), p. 34, who is not only the leading authority on States, but was also the presiding arbitrator in Larsen v. Hawaiian Kingdom, “There is a strong presumption that the State continues to exist, with its rights and obligations, despite revolutionary changes in government, or despite a period in which there is no, or no effective, government. Belligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” So despite the illegal overthrow of the Hawaiian Kingdom government by the United States on January 17, 1893, and the prolonged occupation since the Spanish-American War in 1898, the Hawaiian Kingdom, as a State, would continue to exist even if there was no Hawaiian government.

The presumption of continuity places the burden on the United States to show legally relevant facts that the Hawaiian Kingdom does not continue to exist under international law. In other words, the Hawaiian Kingdom does not have to prove its own existence because it is presumed to continue to exist, just as a person does not have to prove their innocence. To effectively remove the presumption of continuity, there must be uncontroverted evidence of the extinguishment of the Hawaiian Kingdom by the United States. Since the Hawaiian Kingdom has legal rights under international law, the United States will have to provide evidence of extinguishment that only international law recognizes. According to Article 38 of the Statute of the International Court of Justice, the following sources of international law, ranked in order of precedence, are:

1. International conventions (treaties), whether general or particular;
2. International custom, as evidence of a general practice accepted as law;
3. The general principles of law recognized by civilized nations; and
4. Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Under international law, a State who claims to be the successor of another State, when not at war, must take place by cession. Professor Oppenheim, International Law (1948), p. 499, explains that, “cession of State territory is the transfer of sovereignty over State territory by the owner-State to another State.” He further points out 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.” The United States only claim to have extinguished the Hawaiian Kingdom is by a joint resolution of annexation passed by its Congress.

A joint resolution, however, is not a treaty or agreement between two states, but rather an agreement between the House of Representatives and the Senate in Washington, D.C. A joint resolution is a municipal law of the United States whose effect is limited to United States territory. The United States Supreme Court, The Apollon, 22 U.S. 362, 370 (1824), affirmatively stated, that the “laws of no nation can justly extend beyond its own territory” for it would be “at variance with the independence and sovereignty of foreign nations” In U.S. v. Belmont, 301 U.S. 324, 332 (1937), the Court also stated that, “our Constitution, laws and policies have no extraterritorial operation.”

Further complicating the problem for the United States was a legal opinion by the United States Department of Justice’s Office of Legal Counsel in 1988. In the 1988 memorandum titled “Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea,” the Office of Legal Counsel addressed the annexation of the Hawaiian Islands by joint resolution. Douglas Kmiec, Acting Assistant Attorney General, authored the memorandum for Abraham D. Sofaer, legal advisor to the U.S. State Department. After covering the limitation of Congressional authority and the objections made by members of the Congress, Kmiec concluded, “Notwithstanding these constitutional objections, Congress approved the joint resolution and President McKinley signed the measure in 1898. Nevertheless, whether this action demonstrates the constitutional power of Congress to acquire territory is certainly questionable. … 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.”

Sovereignty of an established State is never in abeyance or in suspension. The sovereignty is either vested in the Hawaiian State itself or in the United States as its successor.  If the Attorney General’s Office of Legal Counsel is “unclear” as to the authority of Congress, it cannot be considered to have extinguished the Hawaiian Kingdom’s continuity under international law, and, therefore, the presumption of continuity would remain with the Hawaiian Kingdom as an independent sovereign State.

So when we revisit Dr. Crabbe’s letter and his questions posed to Secretary of State Kerry there is only the first question that would need to be answered with clear and convincing evidence that the Hawaiian State no longer exists under international law. But to do so, the United States would need to provide evidence of a treaty of annexation or an international custom that has terminated the Hawaiian State, which it doesn’t have. In other words, Dr. Crabbe’s questions were really rhetorical questions that he already knew the answers to. The significance of the letter, however, is that it was a formal notification of a State of Hawai‘i government official to the Secretary of State that OHA is aware that the Hawaiian Kingdom continues to exist and that it will have to deal with issues of criminal liability under international law.

The next publication of The War Report: 2013 is schedule to be released by Oxford Press on December 6, 2014. The War Report: 2013 is the second in a series of annual reports that will give an overview of armed conflicts and occupations for that particular year, and is designed as a resource for those working in the field, governments, policy-makers, journalists and the United Nations.

For the year 2012, The War Report reported 37 armed conflicts on the territory of 24 states; of the 38 only one was an active international armed conflict, between South Sudan and Sudan. Also reported were 9 “belligerent occupations”, which fall under laws governing international armed conflicts. These occupations included the occupation of Azerbaijan by Armenia; Cyprus by Turkey; Eritrea by Ethiopia; Georgia by Russia; Lebanon by Israel; Moldova by Russia; Palestine by Israel; Syria by Israel; and Western Sahara by Morocco. Each of the occupations reported have the following headings: Classification of the Conflict; Summary of Applicable International Law; History of the Conflict; Parties to the Conflict; Casualties; Displacement; and War Crimes Allegations, Investigations, and Prosecutions.

The genevalunch.com reported, “The long-term trend from officially declared wars between sovereign states to armed conflicts inside states and territories has important implications for international justice,” says Dr. Stuart Casey-Maslen, editor of The War Report. “Without a clearer legal basis for what constitutes an armed conflict under international law, accused perpetrators of war crimes will not be prosecuted.”

“The classification of an armed conflict under international law is an objective legal test and not a decision left to national governments or any international body, not even the UN Security Council,” says Andrew Clapham, Director of the Academy and Graduate Institute Professor in International Law.

“It is not always clear when a situation is an armed conflict, and hence when war crimes can be punished,” added Professor Clapham. “The War Report aims to change this and bring greater accountability for criminal acts perpetuated in armed conflicts.”

On May 24, 2014, Dr. Maslen notified Dr. Keanu Sai by email that Hawai‘i would be noted in the next publication of The War Report: 2013. When Dr. Sai met with Dr. Maslen at the Geneva Academy of International Humanitarian Law’s office in Geneva on March 26, 2014, the staff of the War Report was already in their final stages of editing the reported armed conflicts and occupations for the year 2013 before submitting the manuscript to Oxford Press. Dr. Sai sought to have Hawai‘i included, but realized at the meeting it was too late for this edition.

At the meeting, Dr. Sai presented a power point presentation on the history of the Hawaiian Kingdom and how it came under an illegal and prolonged occupation. Dr. Maslen was also provided with information and evidence of the occupation. In March, Dr. Maslen assured Dr. Sai that a decision would be made and if it has been determined that Hawai‘i is occupied according to the Academy’s criteria it will be listed on its website Rule of Law in Armed Conflicts in June. The website provides monthly updates on armed conflicts and occupations and is currently under construction, but was scheduled to be completed by June. Dr. Maslen also told Dr. Sai in the email that the website will be completed at the end of July instead of June as previously thought.

It would appear that the information on Hawai‘i’s occupation is what prompted Dr. Maslen to note Hawai‘i’s occupation in the publication of The War Report: 2013. Dr. Sai was very thankful to Dr. Maslen and his staff for the last minute notation, and he has been told that the Geneva Academy will be monitoring the developments in Hawai‘i for inclusion in the next publication, which will be released in December 2015.  

Due to the war crimes that continue to be committed with impunity by the State of Hawai‘i, an illegal regime, against innocent civilians, the acting government of the Hawaiian Kingdom has temporarily refrained from pursuing its proceedings at the International Court of Justice and has decided to focus its attention to secure a Protecting Power pursuant to the Fourth Geneva Convention (GCIV) and the Additional Protocol I (API). A Protecting Power is a State that ensures compliance of the Hawaiian Kingdom and the United States to the provisions of the GCIV and API, with particular focus on the protection of civilians.

As a State Party to the GCIV and AP, article 5(1) of the API, states, “It is the duty of the Parties to a conflict from the beginning of that conflict to secure the supervision and implementation of the Conventions and of this Protocol by the application of the system of Protecting Powers, including inter alia the designation and acceptance of those Powers, in accordance with the following paragraphs.” And according to article 5(3) of the API, if a Protecting Power has not been designated, “the International Committee of the Red Cross…shall offer its good offices to the Parties to the conflict with a view to the designation without delay of a Protecting Power to which the Parties to the conflict consent.”

On December 18, 2013, at its headquarters in Geneva, Switzerland, the International Committee of the Red Cross (ICRC) was formally requested to assist the Hawaiian Kingdom in securing a Protecting Power in accordance with the GCIV and API. In this pursuit, the acting government has been in the process of securing a meeting with the Swiss government in order to formally request that it be a Protecting Power and to work with the ICRC. The Swiss government has a long history of serving as a mediator to international conflicts and did serve as a protecting power in the past. A meeting was secured on March 26, 2014, and the Swiss Federal Department of Foreign Affairs’ Directorate of International Law in Bern, Switzerland, received the acting government’s Envoy Extraordinary and Minister Plenipotentiary. Negotiations to secure Switzerland as a Protecting Power for the illegal and prolonged occupation of the Hawaiian Kingdom have begun.