Along with the International Association of Democratic Lawyers and the American Association of Jurists/Asociación Americana de Juristas – accredited non-government organizations to the UN Human Rights Council, AHEC fully supports the National Lawyers Guild’s 2019 resolution that calls upon the U.S. to immediately comply with international humanitarian law and condemns the prolonged and illegal occupation of the Hawaiian Islands. AHEC specifically:
• Condemns the unlawful presence of the U.S. Indo-Pacific Command with its 118 military sites throughout the Hawaiian Islands.
• Calls for the U.S. to comply with international humanitarian law and administer the laws in the Hawaiian Kingdom as an occupied state.
• Calls on the legal and human rights community to view the U.S. presence in the Hawaiian Islands through the prism of international law and to roundly condemn it as an illegal occupation under international law.
• Supports the Hawaiian Council of Regency, which represented the Hawaiian Kingdom in its efforts to seek resolution in accordance with international law as well as its strategy to have the State of Hawaiʻi and its counties comply with international humanitarian law for the administration of the occupying state. On May 20, 2021, the Hawaiian Kingdom filed a case in the U.S. federal court: Hawaiian Kingdom v. Biden, et al.
• Calls on all United Nations member and non-member states to ensure that the U.S. complies with international humanitarian law and brings to an end the unlawful occupation of the Hawaiian Islands.
Category Archives: National
Wai‘anae Aloha ‘Āina Presents Hawaiian Kingdom v. Biden, Monday March 28
KITV News: O’ahu man addresses the UN on transgressions against the Hawaiian Kingdom
Dr. Keanu Sai’s Oral Statement on the U.S. Occupation of Hawai‘i to UN Human Rights Council – March 22, 2022
War Crimes: Russian Invasion of Ukraine and the American Invasion of the Hawaiian Kingdom
Russia’s invasion of Ukraine has highlighted certain rules or norms of international law. These rules of international law include the independence of countries or States that gives rise to sovereignty, which is defined as the “supreme, absolute, and uncontrollable power by which an independent state is governed.” The terms country and State are interchangeable. Ukraine became an independent State on August 24, 1991, after the breakup of the Soviet Union. The Hawaiian Kingdom became an independent State on November 28, 1843.
In the 1928 Island of Palmas case (Netherlands – United States of America), the sole-arbitrator, Max Huber, stated, “Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.”
This rule springs another rule of international law, which is the duty of non-intervention by other States in a State’s internal affairs because of a State’s territorial integrity. These rules are foundational for the international system to operate, and because of this they are considered peremptory norms, also called jus cogens, that cannot be derogated or disparaged. To violate these rules is an internationally wrongful act.
When Russia invaded Ukraine it violated these rules of international law and transformed the state of affairs from a state of peace to a state of war. According to Judge Christopher Greenwood, “Traditional international law was based upon a rigid distinction between the state of peace and the state of war.” This separation provides the proper context by which certain rules of international law would or would not apply. The laws or war, which is also called international humanitarian law, are not applicable in a state of peace. Inherent in the rules of international humanitarian law is the co-existence of two States being that of the invading State and that of the invaded State.
War is regulated by international humanitarian law called the 1907 Hague Regulations, the 1949 Geneva Conventions, as well as customary international law. Since the latter part of the nineteenth century, violations of international humanitarian law could amount to war crimes, which are committed by individuals acting on behalf of a State and not by the government of the State as a whole. In the words of the International Military Tribunal, “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” War crimes have no statute of limitations.
While hostilities are taking place between Russian and Ukrainian forces there are certain rules of international humanitarian that would amount to war crimes committed against the civilian population. These war crimes include:
Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; and
Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.
It would appear from recent news coverage that Russian forces are committing war crimes against the civilian population of Ukraine who pose no threat to the invading forces. The Chief Prosecutor of the International Criminal Court (ICC) has recently launched an investigation of war crimes committed by Russian forces. The ICC Chief Prosecutor Karim Khan stated, “it is clear…directing attacks against civilians and civilian objects amounts to a war crime.” Although Russia and Ukraine are not State parties to the Rome Statute that would have authorized the ICC to investigate war crimes, the ICC was prompted to investigate by a referral of thirty-nine States that are State parties to the Rome Statute.
Should hostilities cease and certain portions of the territory of Ukraine should come under the effective control of Russian forces, international humanitarian law transforms the situation into belligerent occupation and the occupying State must continue to protect the civilian population who reside within the occupied territory. Should Russia be in effective control of territory, it will trigger the law of occupation where Russian forces are obligated to administer the laws of the Ukraine. This rule of international law would continue until the occupation comes to an end when Russian forces leave Ukrainian territory. As professor Ian Brownlie wrote:
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.”
War crimes committed during belligerent occupation against the civilian population include what are called “grave breaches” that are listed under Article 147 of the 1949 Fourth Geneva Convention.
Grave breaches…shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
Along with the list of war crimes as “grave breaches,” there are war crimes that are listed under customary international law. In chapter three of the ebook Royal Commission of Inquiry: Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom, Professor William Schabas provides a list of war crimes, under customary international law, committed in the Hawaiian Kingdom. These include:
war crime of usurpation of sovereignty during occupation;
war crime of compulsory enlistment;
war crime of denationalization;
war crime of pillage;
war crime of confiscation or destruction of property;
war crime of deprivation of fair and regular trial;
war crime of deporting civilians of the occupied territory; and
war crime of transferring populations into an occupied territory.
When United States forces invaded the Hawaiian Kingdom on January 16, 1893, they initiated the state of war between the United States and the Hawaiian Kingdom. Hostilities would only last until the following day when Queen Lili‘uokalani signed a conditional surrender to the United States. She stated:
I, Lili‘uokalani, by the Grace of God, and under the Constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the constitutional Government of the Hawaiian Kingdom by certain persons claiming to have established a Provisional Government of and for this Kingdom.
That I yield to the superior force of the United States of America whose Minister Plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be landed at Honolulu and declared that he would support the said Provisional Government.
Now to avoid any collision of armed forces, and perhaps the loss of life, I do this under protest, and impelled by said force yield my authority until such time as the Government of the United States shall, upon facts being presented to it, undo the action of its representative and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.
Done at Honolulu this 17th day of January, A.D. 1893.
Lili‘uokalani, R.
Samuel Parker, Minister of Foreign Affairs.
Wm. H. Cornwell, Minister of Finance.
John. F. Colburn, Minister of the Interior.
A.P. Peterson, Attorney General.
After completing an investigation, President Grover Cleveland notified the Congress:
And so it happened that on the 16th day of January, 1893, between four and five o’clock in the afternoon, a detachment of marines from the United States steamer, Boston, with two pieces of artillery, landed at Honolulu. The men, upwards of 160 in all, were supplied with double cartridge belts filled with ammunition and with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies. This military demonstration upon the soil of Honolulu was of itself an act of war, unless made either with the consent of the Government of Hawaii or for the bona fide purpose of protecting the imperilled lives and property of citizens of the United States. But there is no pretense of any such consent on the part of the Government of the Queen, which at the time was undisputed and was both the de factor and the de jure government. In point of fact the existing government instead of requesting the presence of an armed force protested against it. There is little basis for the pretense that such forces were landed for the security of American life and property. If so, they would have been stationed in the vicinity of such property and so as to protect it, instead of at a distance and so as to command the Hawaiian Government building and palace. Admiral Skerrett, the officer in command of our naval force on the Pacific station, has frankly stated that in his opinion the location of the troops was inadvisable if they were landed for the protection of American citizens whose residences and places of business, as well as the legation and consulate, were in a distant part of the city, but the location selected was a wise one if the forces were landed for the purpose of supporting the provisional government. If any peril to life and property calling for any such martial array had existed, Great Britain and other foreign powers interested would not have been behind the United States in activity to protect their citizens. But they made no sign in that direction. When these armed men were landed, the city of Honolulu was in its customary orderly and peaceful condition. There was no symptom of riot or disturbance in any quarter. Men, women, and children were about the streets as usual, and nothing varied the ordinary routine or disturbed the ordinary tranquillity, except the landing of the Boston’s marines and their march through the town to the quarters assigned them. Indeed, the fact that after having called for the landing of the United States forces on the plea of danger to life and property the Committee of Safety themselves requested [US] Minister [John Stevens] to postpone action, exposed the untruthfulness of their representations of present peril to life and property. The peril they saw was an anticipation growing out of guilty intentions on their part and something which, though not then existing, they knew would certainly follow their attempt to overthrow the Government of the Queen without the aid of the United States forces.
From this date, the United States was in effective control of Hawaiian territory and international humanitarian law at the time obligated the United States to administer the laws of the Hawaiian Kingdom. Instead of complying with international humanitarian law, the United States unilaterally seized the Hawaiian Islands and transformed it into a military outpost to protect the United States from its adversaries. Since 1898, the United States has committed the war crime of “usurpation of sovereignty,” which is the unlawful imposition of American municipal laws over the territory of the Hawaiian Kingdom. This imposition of American laws is what caused the commission of the other war crimes identified by Professor Schabas.
Russian President Vladimir Putin claimed Russian troops were being sent into Ukraine to protect people who were subjected to bullying and genocide and that Russia was aiming for the “demilitarization and de-Nazification” of Ukraine. The BBC reported, “There has been no genocide in Ukraine: it is a vibrant democracy, led by a president who is Jewish.”
It would appear that Russia’s justification is not credible, just as the United States justification for the invasion of the Hawaiian Kingdom was not credible as well. The difference, however, is that President Cleveland, who was President of the invading force, completed a presidential investigation and acknowledged that the invasion was “illegal” under international law. Consequently, there is no need for an investigation into the invasion and unlawful overthrow of the Government of the Hawaiian Kingdom. Rather, the issue is the United States non-compliance with international humanitarian law for over a century, which has led to the commission of war crimes and human rights violations.
The restored government of the Hawaiian Kingdom, the Council of Regency, brought this to the attention by a diplomatic note to the foreign embassies accredited to the United Nations in New York City. This information was also brought to the attention of the foreign embassies in both New York City and Geneva by a joint letter from the International Association of Democratic Lawyers and the American Association of Jurists—Asociación Americana de Juristas, both of whom have consultative status with the United Nations Human Rights Council.
Association of Hawaiian Evangelical Churches Send Letter to Governor Ige Urging Him to Transform State of Hawai‘i into an Occupying Government
This past July 18, 2021, the General Synod of the United Church of Christ passed a resolution “Encouraging to End 128 years of War between the United States of America and the Hawaiian Kingdom.” The resolution was introduced by the Association of Hawaiian Evangelical Churches (AHEC). Pastor Wendell Davis is the head of AHEC as the Papa Makua.
AHEC is an association of 30 native Hawaiian protestant churches and 6 partnerships that include, as partnership ministries, the State Sunday School Association, Pacific Justice and Reconciliation, Kamehameha Schools, State Council of Hawaiian Congregational Churches, Christian Endeavor Hawai‘i, and the Pacific Islander & Asian American Ministries.
AHEC is a successor of the ‘Ahahui ‘Euanelio o Hawai‘i, also known as the Hawaiian Evangelical Association, that was established in 1854 in the Hawaiian Kingdom. Well known churches such as Kawaiaha‘o and Kaumakapili are members of AHEC. The resolution
“calls upon all settings of the church, denomination officers, conferences, associations, and congregations to live into the 1993 Apology of the United Church of Christ delivered to the Native Hawaiian people by President Paul Sherry.”
“call[s] upon the United Church of Christ’s General Counsel’s office to listen to and consider recommendations from the Association of Hawaiian Evangelical Churches, other Native Hawaiian organizations and Native Hawaiian voices drafting communications to local, national and international leaders and organizations calling for compliance with international humanitarian law and an end to the illegal occupation of the Hawaiian Islands.”
“reaffirm its commitment to stand alongside and in support of the efforts of Native Hawaiians to seek redress and restitution for the war crimes of the US against the Hawaiian Kingdom including, but not limited to, the crime of denationalization.”
In its first communication to local leaders, AHEC sent a certified letter to State of Hawai‘i Governor David Ige on February 23, 2022, stating:
[W]e support the National Lawyers Guild’s letter to you dated November 10, 2020, urging you, as Governor,
[T]o 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 [Royal Commission of Inquiry] 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.
Authors of Amicus Brief Request Judge to Permit the Filing of Joint IADL-AAJ Letter to UN Ambassadors on the Illegal Occupation of the Hawaiian Kingdom
Today the International Association of Democratic Lawyers (IADL), the National Lawyers Guild (NLG) and the Water Protectors Legal Collective (WPLC), who the authors of the amicus brief as to why the court must transform itself into an Article II Occupation Court in Hawaiian Kingdom v. Biden, filed a Motion for Leave to File a Letter Supplement to Amended Amicus Curiae Brief.
Attached to the Motion is a copy of the joint letter by the IADL and the American Association of Jurists—Asociación Americana de Juristas, sent to all the Embassies accredited to the United Nations in New York City and in Geneva on February 16, 2022.
In their Motion, the IADL-NLG-WPLC state, “Movants wish to supplement their amicus brief with a letter, dated February 16, 2022, from two international organizations with special consultative status with the U.N. Economic and Social Council and accredited before the Human Rights Council—the International Association of Democratic Lawyers and the American Association of Jurists—which was sent to all Permanent Missions to the United Nations in New York City and Geneva, Switzerland. The letter addresses the ongoing illegal occupation of Hawai‘i under international law and will be presented before the United Nations Human Rights Council at its 49th session in Geneva beginning on February 28, 2022.”
They also state “The letter is provided for informational purposes to the Court and to provide additional context for the urgent and serious issues raised by this case, which are also the current subject of discussion in international forums.”
The Court will have to grant permission for the filing of the joint letter so that it becomes a part of the record. The decision by the judge is forthcoming.
UPDATE: Last night, Magistrate Judge Rom Trader entered an order denying the IADL-NLG-WPLC’s request to file the IADL-AAJ joint letter. The Court stated, “The letter is not being submitted in support of any moving papers, not all drafters of the letter have been approved as amicus, and the movants do not provide any concrete information as to why the letter is even needed.”
As the IADL-NLG-WPLC did state in its motion, “The letter is provided for informational purposes to the Court and to provide additional context for the urgent and serious issues raised by this case, which are also the current subject of discussion in international forums.”
Aside from the procedural matters as stated by Judge Trader, the letter, for informational purposes, can be accessed by the defendants in this case. The Hawaiian Kingdom v. Biden lawsuit is a case of first impression where proceedings are taking place during a prolonged belligerent occupation by the United States outside of its territory. “In a case of first impression, the exact issue before the court has not been addressed by that court, or within that court’s jurisdiction, thus there is no binding authority on that matter.” The letter provides “additional context.”
Putin Warns US and NATO Countries of Nuclear Attack: Island of O‘ahu Targeted for Nuclear Strike
Yesterday, Russian forces invaded Ukraine from the north, east and south. Russian President Vladimir Putin justified the invasion as a response to the North Atlantic Treaty Organization’s (NATO) coming too close to Russia’s borders. According to the U.S. State Department, NATO “was created in 1949 by the United States, Canada, and several Western European nations to provide collective security against the Soviet Union.” After the fall of the Soviet Union in 1991, Russia has taken the mantle of the former Soviet Union and maintains a very large military force and nuclear weapons. Former Soviet States to the west of Russia became members of NATO with the exception of Ukraine, Belarus and Georgia.
Russia views the encroachment of NATO to its western border as a security threat. In a speech after meeting with French President Emmanuel Macron on February 7, 2022, Putin stated “Of course NATO and Russia potentials are incompatible” and warns of nuclear war if Ukraine joins NATO.
Russia’s aggression against Ukraine is reminiscent of the United States aggression against the Hawaiian Kingdom during the Spanish-American War. As Russia claims NATO is a national security threat to its existence, the United States claimed Japan was an immediate threat of invasion of the United States west coast.
After the United States admitted unlawful overthrow of the Hawaiian Government, Mahan wrote a letter to the Editor of the New York Times where he advocated seizing the Hawaiian Islands. On January 31, 1893, he wrote that the Hawaiian Islands, “with their geographical and military importance, [is] unrivalled by that of any other position in the North Pacific.” Mahan used the Hawaiian situation to bolster his argument of building a large naval fleet. He warned that a maritime power could well seize the Hawaiian Islands, and that the United States should take that first step. He stated that to hold the Hawaiian Islands, “whether in the supposed case or in war with a European state, implies a great extension of our naval power. Are we ready to undertake this?” Mahan would have to wait four years to find an ally in President William McKinley’s Department of the Navy, Assistant Secretary of the Navy, Theodore Roosevelt.
Roosevelt sent a private and confidential letter, on May 3, 1897, to Mahan. He wrote, “I need not tell you that as regards Hawaii I take your views absolutely, as indeed I do on foreign policy generally. If I had my way we would annex those islands tomorrow.” Moreover, Roosevelt told Mahan that Cleveland’s handling of the Hawaiian situation was “a colossal crime, and we should be guilty of aiding him after the fact if we do not reverse what he did.” Roosevelt also assured Mahan “that Secretary [of the Navy] Long shares [their] views. He believes we should take the islands, and I have just been preparing some memoranda for him to use at the Cabinet meeting tomorrow.”
In a follow up letter to Mahan, on June 9, 1897, Roosevelt wrote that he “urged immediate action by the President as regards Hawaii. Entirely between ourselves, I believe he will act very shortly. If we take Hawaii now, we shall avoid trouble with Japan.” Eight days later, on June 16, 1897, the McKinley administration signed a treaty of “incorporation” with its American puppet—the Republic of Hawai‘i, in Washington, D.C. On the following day, Queen Lili‘uokalani submitted a formal protest to the U.S. State Department stating, “I declare such a treaty to be an act of wrong toward the native and part-native people of Hawaii, an invasion of the rights of the ruling chiefs, in violation of international rights both toward my people and toward friendly nations with whom they have made treaties, the perpetuation of the fraud whereby the constitutional government was overthrown, and, finally, an act of gross injustice to me.”
While the so-called treaty failed to get the required 2/3’s vote from the Senate for ratification, a joint resolution of annexation, being an internal law of the United States, was submitted to the House Committee on Foreign Affairs on May 4, 1897, in its place, and pushed through both Houses of the Congress. President McKinley signed it into law on July 7, 1898. In a secret session of the Senate on May 31, 1898, whose transcripts were not opened to the public until 1969, Senator Henry Cabot Lodge acknowledged that the McKinley “Administration was compelled to violate the neutrality of those islands, that protests from foreign representatives had already been received, and complications with other powers were threatened, that the annexation or some action in regard to those islands had become a military necessity.”
The United States aggression against the Hawaiian Kingdom, a sovereign and independent State like Ukraine, gives rise to the proverbial idiom, “who’s calling the kettle black.”
Putin’s warning draws the Hawaiian Kingdom, being a neutral State, into a theater of war should the United States enter the Russia-Ukrainian conflict. According to the U.S. Department of Defense’s Base Structure Report for 2012, the U.S. military has 118 military sites that span 230,929 acres of the Hawaiian Islands, which is 6% of the total acreage of Hawaiian territory. As the headquarters for the U.S. Indo-Pacific Command, being the largest unified combatant command in the world, the Hawaiian Islands are targeted for nuclear strikes by Russia, China and North Korea.
The United States prolonged and illegal occupation of the Hawaiian Kingdom is a direct violation of the Hawaiian Kingdom’s neutrality, which is specifically stated in its treaties with Germany, Spain and Sweden and Norway. Article XV of its treaty with Spain provides “Her Majesty the Queen of Spain engages to respect, in time of war the neutrality of the Hawaiian Islands, and to use her good offices with all the other powers having treaties with the same, to induce them to adopt the same policy toward the said Islands.”
Article 1 of the 1907 Hague Convention, V, provides “The territory of neutral Powers is inviolable,” and Article 2 provides “Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power.” The United States’ violation of these Articles have placed the residents of the Hawaiian Islands into harms way when Japan attacked U.S. military installations on O‘ahu on December 7, 1941, and continue to place Hawai‘i’s residents in harms way in the event of a nuclear attack.
In 1990, the United States Federal Emergency Management Agency (FEMA) published Risks and Hazards: A State by State Guide. One of the subjects included nuclear targets and identified 6 nuclear targets on the island of O‘ahu that coincided with the locations of military posts of the U.S. Army, Navy, Air Force and Marines. Also included as a target is the Headquarters of the U.S. Pacific Command at Camp Smith that lies in the back of a residential area in Halawa. According to FEMA, the entire Island of O‘ahu would be obliterated if a nuclear attack were to take place with few survivors and total destruction of buildings.
Americanization has desensitized Hawai‘i’s population and has made the presence of the U.S. military in the islands normal. Americanization has also erased the memory of the U.S. invasion in 1893 and portrayed the military presence as protecting the islands from an aggressor country intent on invasion, when in fact the Hawaiian Islands were seized in 1898 to serve as a defense to protect the United States west coast from invasion.
After the defeat of the Spanish Pacific Squadron in the Philippines, U.S. Congressman Francis Newlands (D-Nevada), submitted House Resolution 259 annexing the Hawaiian Islands (also known as the Newlands Resolution), to the House Committee on Foreign Affairs on May 4, 1898.
Six days later, hearings were held on the Newlands Resolution, and U.S. Naval Captain Alfred Mahan’s testimony explained the military significance of the Hawaiian Islands to the United States:
“It is obvious that if we do not hold the islands ourselves we cannot expect the neutrals in the war to prevent the other belligerent from occupying them; nor can the inhabitants themselves prevent such occupation. The commercial value is not great enough to provoke neutral interposition. In short, in war we should need a larger Navy to defend the Pacific coast, because we should have not only to defend our own coast, but to prevent, by naval force, an enemy from occupying the islands; whereas, if we preoccupied them, fortifications could preserve them to us. In my opinion it is not practicable for any trans-Pacific country to invade our Pacific coast without occupying Hawai‘i as a base.”
The Hawaiian Islands was and continues to be the outpost to protect the United States and their presence in the Hawaiian Islands is in violation of international law and the laws of occupation.
The IADL and AAJ Sent a Joint Letter to all UN Ambassadors Calling for Enforcement of International Law Regarding the Prolonged Occupation of the Hawaiian Kingdom
There may be confusion between resolving a dispute between the Hawaiian Kingdom and the United States, and enforcement regarding the United States violations of international law since January 16, 1893, when US troops invaded a sovereign and independent State.
A dispute did exist between the Hawaiian Kingdom and the United States when the Hawaiian government was overthrown on January 17, 1893. Queen Lili‘uokalani stated in her conditional surrender to the United States that “I yield to the superior force of the United States of America, whose minister plenipotentiary, has caused United States troops to be landed at Honolulu and declared that he would support the said provisional government.” But in a letter from the Secretary of State John Foster to President Benjamin Harrison, “At the time the provisional government took possession of the Government buildings no troops or officers of the United States were present or took any part whatever in the proceedings.”
The Hawaiian Kingdom was claiming the overthrow was a result of an invasion by the United States, and the United States was claiming that the provisional government was established by a successful revolution without any participation of US troops. President Grover Cleveland, who succeeded President Harrison, stated to the Congress that “The truth or falsity of [the Queen’s] protest was surely of the first importance. If true, nothing but the concealment of its truth could induce our Government to negotiate with the semblance of a government thus created, nor could a treaty resulting from the acts stated in the protest have been knowingly deemed worthy of consideration by the Senate. Yet the truth or falsity of the protest had not been investigated.”
President Cleveland initiated an investigation on March 11, 1893, with the appointment of James Blount, former chairman of the House Committee of Foreign Affairs, as Special Commissioner. Commissioner Blount arrived in the Hawaiian Islands late March and began his investigation on April 1st. He sent periodic reports to Secretary of State Walter Gresham in Washington, D.C., and on July 17, 1893, he submitted his final report.
After going over the reports submitted by Commissioner Blount, Secretary of State Gresham stated in a letter to the President on October 18, 1893, “Refusing to recognize the new authority or surrender to it, [the Queen] was informed that the Provisional Government had the support of the American minister, and, if necessary, would be maintained by the military force of the United States then present; that any demonstration on her part would precipitate a conflict with that force; that she could not, with hope of success, engage in war with the United States, and that resistance would result in a useless sacrifice of life.” Gresham further stated:
When [the Queen’s protest] was prepared at the conclusion of the conference, and signed by the Queen and her ministers, a number of persons, including one or more representatives of the Provisional Government, who were still present and understood its contents, by their silence, at least, acquiesced in its statements, and, when it was carried to President Dole, he [endorsed] upon it, “Received from the hands of the late cabinet this 17th day of January, 1893,” without challenging the truth of any of its assertions.
The dispute of these facts were resolved and Queen Lili‘uokalani was proven correct. In his message to the Congress on December 18, 1893, President Cleveland concluded that the provisional government “was neither a government de facto nor de jure,” but rather self-proclaimed. He went further and stated, “that a candid and thorough examination of the facts will force the conviction that the provisional government owes its existence to an armed invasion by the United States.”
Through executive mediation between the Queen and the new U.S. Minister to the Hawaiian Islands, Albert Willis, that lasted from November 13 through December 18, 1893, an agreement of peace was reached. According to the executive agreement, by exchange of notes, the President committed to restoring the Queen as the Executive Monarch, and the Queen, after being restored, to grant a full pardon to the insurgents. Political wrangling in the Congress, however, blocked President Cleveland from carrying out his obligation of restoration of the Queen.
Five years later during the Spanish-American War, the United States Congress enacted a joint resolution of annexation, and President Cleveland’s successor, President William McKinley, signed it into U.S. law on July 7, 1898. The legislation of every independent State, including the United States, through its Congress, are confined in their operation within the territorial borders of the State that enacted the legislation.
In The Lotus case, the Permanent Court of International Justice stated in 1927 that “the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside of its territory except by virtue of a permissive rule derived from international custom or from a convention.” Since 1898, the United States has been unlawfully imposing American municipal laws over the territory of the Hawaiian Kingdom in violation of international laws and the law of occupation.
There is no dispute between the Hawaiian Kingdom and the United States. Instead, there is the lack of enforcement of international law regarding the United States prolonged and illegal occupation of the Hawaiian Kingdom since 1893.
Enforcement of international law is through the governments of States. Enforcement of international law had been asymmetrical and often called the Achilles heel of international law. From April 25 to June 26, 1945, fifty States met in San Francisco who eventually signed the United Nations Charter with the hope that the new organization would prevent another world war.
The United Nations began to address the subject of enforcement of international law. After nearly forty-years of critical review and analysis, the Articles of State Responsibility for Internationally Wrongful Acts was accepted by vote of the United Nations General Assembly in October 2002. By this resolution, the member States of the United Nations accepted the Articles as a reflection of customary international law, which is binding upon all States in the international system whether they are members of the United Nations or not. The main Articles include:
Article 30. The State responsible for the internationally wrongful act is under an obligation to cease that act, if it is continuing.
Article 31. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.
Article 32. The responsible State may not rely on the provisions of its internal law as justification for failure to comply with its obligations under international law.
Article 35. A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed.
Article 41(1). States shall cooperate to bring to an end through lawful means any serious breach of international law.
Article 41(2). No State shall recognize as lawful a situation created by a serious breach of international law, nor render aid or assistance in maintaining that situation.
In a deliberate move to enforce compliance with international law, the International Association of Democratic Lawyers (IADL) and the American Association of Jurists—Asociación Americana de Juristas (AAJ), sent a joint letter to all the Embassies accredited to the United Nations in New York City and in Geneva regarding the prolonged and illegal belligerent occupation of the Hawaiian Kingdom by the United States since January 17, 1893. The joint letter was sent on February 16, 2022. The Hawaiian Kingdom’s Attorney General received a copy of the letter by email from the IADL and the AAJ on February 18. In its joint letter to the ambassadors to the United Nations, the IADL and the AAJ stated:
For the restoration of international law and the tenets of the UN Charter, the IADL and the AAJ calls upon the United States to immediately comply with international humanitarian law and the law of occupation in its prolonged and illegal occupation of the Hawaiian Islands.
The IADL and the AAJ fully supports the NLG’s 10 November 2020 letter to State of Hawai‘i Governor David Ige urging him to “proclaim the transformation of the State of Hawai‘i and its Counties into an occupying government pursuant to the Council of Regency’s proclamation of June 3, 2019, in order to administer the laws of the Hawaiian Kingdom. This would include carrying into effect the Council of Regency’s proclamation of October 10, 2014, that bring the laws of the Hawaiian Kingdom in the nineteenth century up to date.”
We urge all UN Member States to comply with the Articles of State Responsibility for Internationally Wrongful Acts (2001). The U.S. violation of the Hawaiian Kingdom’s sovereignty and its failure to comply with international humanitarian law for over a century is an internationally wrongful act. As such, UN Member States have an obligation to not “recognize as lawful a situation created by a serious breach…nor render aid or assistance in maintaining that situation,” and member States “shall cooperate to bring to an end through lawful means any serious breach [by a member State of an obligation arising under a peremptory norm of general international law].”
Both the IADL and the AAJ, as non-governmental organizations, have special consultative status with the United Nations Economic and Social Council and are accredited to participate in the Human Rights Council’s sessions as Observers. The IADL and the AAJ are planning to bring this to the attention of the United Nations Human Rights Council at its 49th session when it convenes on February 28, 2022, in Geneva, Switzerland.
Latest “Dark History” Podcast: How the US Stole Hawai‘i
U.S. Files Their Reply to Hawaiian Kingdom’s Opposition to the U.S. Motion to Dismiss
Today the United States filed its Reply to the Hawaiian Kingdom’s Opposition to their Motion to Dismiss. At no point in these proceedings has the United States countered the facts and evidence provided by the Hawaiian Kingdom. In other words, the facts of this case have not been contested and, as such, are considered in favor of the Hawaiian Kingdom in its effort to have the federal court transform itself into an Article II Occupation Court.
This is also the first time ever where the United States had to present their position as to its claim of sovereignty over the Hawaiian Islands. In all prior cases that came before the federal courts, the United States relied on the judges of these courts to dismiss the cases because it presents a political question. The political question doctrine prevents federal courts from recognizing the sovereignty of a country if, and only if, the political branches of the President and/or Congress had not already recognized that sovereignty.
In other words, a federal court cannot assert the political question doctrine if a country such as Switzerland filed a complaint in the U.S. District Court in Washington, D.C., against certain officials of the United States because the United States recognized Switzerland as a sovereign and independent State and entered into a treaty of friendship, commerce and extradition with the Swiss government on November 25, 1850.
This is exactly the same situation with the Hawaiian Kingdom where the United States recognized the Hawaiian Kingdom as a sovereign and independent State on July 6, 1844, and entered into a treaty of friendship, commerce and navigation with the Hawaiian Kingdom on December 20, 1849. Just as the United States has a treaty with Switzerland so does the Hawaiian Kingdom has a treaty of friendship, establishment and commerce with Switzerland dated July 10, 1864. The political question doctrine does not apply to the Hawaiian Kingdom but it has been used as an expedient remedy to temporarily protect the United States in its own courts.
In its Motion to Dismiss, the United States takes the position that it has sovereignty over the Hawaiian Islands because the Congress passed a joint resolution of annexation in 1898 and in 1959 Hawai‘i became the 50th State of the Federal Union. This is a frivolous claim because United States laws, which includes the federal constitution, have no force and effect beyond the borders of the United States. If this is true, the United States Congress can pass a joint resolution annexing Canada today. Only by a treaty can one country acquire the territory of another country. As pointed out by the United States Supreme Court, in United States v. Curtiss-Wright Corp., in 1936:
“Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law. As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign.”
This is consistent at the international level where the Permanent Court of International Justice, in The Lotus Case (France v. Turkey), stated, in 1927, “the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State.”
The U.S. District Court claims to be an Article III Court by virtue of Article III of the U.S. Constitution, which provides for the authority of the Judiciary. Because the Supreme Court in Curtiss-Wright stated that “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory,” the U.S. District Court in Hawai‘i cannot claim to be an Article III Court because the U.S. Constitution has no force in foreign territory. It can only exist as an Article II Court under the President’s authority as the commander-in-chief of the armed forces in foreign territory. As stated in the Amicus Brief:
“Under the concept of void ab initio, there are structures that have no legal effect from inception. The United States occupation of Hawai‘i began with unclean hands, and this can only be remedied by a clean slate and a new beginning.”
In the Hawaiian Kingdom’s Opposition to the Motion to Dismiss, it stated that the United States cannot rely on its internal laws, which includes federal court decisions that dismissed cases under the political question doctrine, for its failure to perform its obligation under international law. Under international law, the United States is obligated to administer the laws of the Hawaiian Kingdom because it still exists as a sovereign and independent State despite that its government was illegally overthrown on January 17, 1893. The Permanent Court of Arbitration (PCA), in Larsen v. Hawaiian Kingdom, acknowledged the continued existence of the Hawaiian Kingdom as a State in 1999 and the Council of Regency as its restored government.
In its Reply, the United States continued to attempt to confuse the Court by stating what the Arbitration Tribunal stated and what the PCA did as explained by Italian scholar Professor Federico Lenzerini in his legal opinion, which is attached to the Hawaiian Kingdom’s Motion for Judicial Notice as Exhibit 1. As the Hawaiian Kingdom clearly explained in all of its pleadings to include its Opposition to the Motion to Dismiss, there is a very clear distinction between the institutional jurisdiction of PCA, which is an inter-governmental organization, and the subject matter jurisdiction of the Arbitral Tribunal that is established by the PCA.
In accordance with Article 47 of the 1907 Convention that established the PCA, it allows access to the institutional jurisdiction of the PCA by States that have not signed and ratified the 1907 Convention, which are called non-contracting States. As the Hawaiian Kingdom is not a contracting State to the 1907 Convention, it would have access to the PCA’s institutional jurisdiction under Article 47.
The Arbitral Tribunal in the Larsen case was established in accordance with Article 47 as stated in the PCA’s Annual Reports from 2000 to 2011. If the Hawaiian Kingdom was not a State under international law, there would not have been a Larsen v. Hawaiian Kingdom case. The United States stated in their Reply:
“The primary authority cited as support for Plaintiff’s theory remains Prof. Lenzerini’s interpretation of the significance of the decision by the International Bureau of the Permanent Court of Arbitration (“PCA”) to institute an arbitration involving Plaintiff. The arbitral award explicitly rejects this inference. It demonstrates that the PCA refused to reach a conclusion about Plaintiff’s sovereignty. Nonetheless, even if Plaintiff’s interpretation of the PCA’s actions were correct, it would not matter. The questions raised by Plaintiff and Prof. Lenzerini are classic political questions about the recognition of state sovereignty that the Court has no jurisdiction to answer.”
This statement is convoluted and a word salad. Foremost, the United States implies that the PCA and the Arbitral Tribunal are one in the same when it stated that the “PCA refused to reach a conclusion about Plaintiff’s sovereignty.” This is a false statement because the PCA did reach a conclusion “about Plaintiff’s sovereignty” when it formed the Tribunal on June 9, 2000. The proceedings were initiated on November 8, 1999, but the International Bureau had to be sure that the Hawaiian Kingdom existed as a State before it could form the Tribunal in the first place.
The United States relies on what the Tribunal stated in its Award that “in the absence of the United States of America [as a party], the Tribunal can neither decide that Hawaii is not part of the USA, nor proceed on the assumption that it is not.” What the United States leaves out is that it was the Hawaiian Kingdom that requested the Tribunal to declare that the Hawaiian Kingdom exists as a State. The request was made because the 2000 Annual Report acknowledging the Hawaiian Kingdom’s existence as a State in accordance with Article 47 did not come out yet.
The Hawaiian Kingdom also knew that even if the Tribunal did pronounce the Hawaiian Kingdom’s existence as a State without the participation of the United States in the proceedings it would only apply and be binding between Larsen and the Hawaiian Kingdom. As stated under Article 59 of the Statute of the International Court of Justice (ICJ), decisions of the ICJ have “no binding force except between the parties and in respect of that particular case.” And as stated by ICJ Judge Thomas Buergenthal before the membership of the American Society of International law in 2009:
“It is clear, of course, that the doctrine of stare decisis is not part of international law. For states not parties to a case, judgments of the ICJ and of some other international courts are formally not lawmaking in character in the sense in which decisions of Common Law courts are binding precedents within their respective jurisdictions.”
The existence of the Hawaiian Kingdom as a State is a question of fact and not a question of law to be decided by an international court because independent States are co-equal to each other and cannot be subjected to an international court unless it consents to its jurisdiction to preside over the dispute. To allow an international court to determine whether a State exists undermines the sovereignty of the State in the first place. Furthermore, to give consent to an international court the party to the case has to be a State in the first place. The United States is trying to argue the significance of an egg without acknowledging the chicken that laid the egg by arguing the egg and the chicken are the same thing.
When the United Nations was considering an Advisory Opinion by the ICJ on the status of Palestine in 1948, Israeli Foreign Minister Eban argued that the “existence of a State is a question of fact and not of law.” Professor Oppenheim also stated, “The formation of a new State is…a matter of fact, and not law.” The Hawaiian Kingdom is not a new State but rather an existing State since the nineteenth century and the United States has not contested the facts that show this.
Because the United States Motion to Dismiss was filed after the Hawaiian Kingdom’s Motion for Judicial Notice of Civil Law that explains the actions taken by the PCA in acknowledging the existence of Hawaiian Statehood, the judge will have to make that determination first. When the Court has transformed itself into an Article II Occupation Court it can then take up the Motions to Dismiss filed by the United States and the Swedish Consul, and also the Statement of Interest by the United States because it would have jurisdiction to address the arguments. But then again, when the Court transforms into an Article II Occupation Court, the Motions to Dismiss and the Statement of Interest are moot and fall to the ground.
Right now it doesn’t have jurisdiction because it is not within the territory of the United States but rather sits within the territory of the Hawaiian Kingdom, being an occupied State. The United States at no time in these proceedings presented any counter evidence, such as a treaty, that the Hawaiian Islands have been ceded to the United States. They solely rely on Congressional law and not international law.
The United States has backed itself into a corner that it cannot get out of and appears to be relying on the Court to try to get it out of a predicament of its own making since 1893. Based on the evidence before this Court and the involvement of 30 other countries that have Consulates in the Hawaiian Kingdom in the case, and the authors of the Amicus Brief, which are the International Association of Democratic Lawyers, the National Lawyers Guild, and the Water Protectors Legal Collective, all of whom are organizations of lawyers and jurists at both the international and national levels, the Court is bound to follow the rule of law and grant the Hawaiian Kingdom’s Motion for Judicial Notice. The United States has given no credible reason for the Court to not take judicial notice, which would lead to the transformation of the Court from an Article III Court to an Article II Occupation Court.
Hawaiian Kingdom files its Reply to the US Opposition of Judicial Notice of Civil Law and Exposes a Conspiracy at the Highest Level of the US Government
On January 14, 2022, the United States filed their Opposition to the Hawaiian Kingdom’s Motion for Judicial Notice of Civil Law regarding the action taken by the International Bureau of the Permanent Court of Arbitration acknowledging the Hawaiian Kingdom as a non-Contracting State to the 1907 Convention on the Pacific Settlement of International Disputes. The United States simultaneously filed a Cross-Motion to Dismiss the Hawaiian Kingdom’s Amended Complaint, which it combined with their Opposition.
Today the Hawaiian Kingdom filed two pleadings in the federal lawsuit. The first filing was its Reply to the United States Opposition to the Hawaiian Kingdom’s Motion for Judicial Notice of the Civil Law. The second filing was its Opposition to the United States Cross-Motion to Dismiss. The United States will need to file their Reply to the Hawaiian Kingdom’s Opposition by February 11, 2022. In its opening of both the Reply and the Opposition, the Hawaiian Kingdom states:
Federal Government Defendants’ (“FGDs”) opposition and cross-motion to dismiss is based entirely on the jurisdiction of this Court as an Article III Court. FGDs contend that Defendant UNITED STATES OF AMERICA is the legitimate sovereign over the Hawaiian Islands because “[t]he United States annexed Hawaii in 1898, and Hawaii entered the union as a state in 1959 [and that] [t]his Court, the Ninth Circuit, and the courts of the state of Hawaii have repeatedly ‘rejected arguments asserting Hawaiian sovereignty’ distinct from its identity as a part of the United States.” FGDs’ claims lack merit on several grounds and are an attempt to obscure, mislead and misinform this Honorable Court’s duty to apply the rule of law. Furthermore, while Plaintiff views the actions taken by this Court as a matter of due diligence regarding Plaintiff’s motion for judicial notice, which is not a dispositive motion, FGDs’ motion to dismiss, being a dispositive motion, can only be entertained after the Court possesses subject matter and personal jurisdiction as an Article II Court.
Both filings are substantially the same but because of the limited word count for the Reply, the Opposition’s word count allowed more information to be added, especially adding critical information of a conspiracy at the highest level of President McKinley’s administration to illegally seize the Hawaiian Islands for military purposes. Leading this conspiracy was the former President Theodore Roosevelt, who at the time was serving as Assistant Secretary of the Navy. Under international law today, this conspiracy would be considered an internationally wrongful act in the unilateral seizure of the territory of a sovereign and independent State.
It is important for the reader to understand this part of the Hawaiian Kingdom’s history from a legal standpoint and why the United States claims of sovereignty over the Hawaiian Islands lack any credible evidence under both international laws and United States laws. These legal proceedings have cleared the “smoke and mirrors” that the United States has relied on in claiming Hawai‘i is the 50th State of the Federal Union. It has forced the United States to admit its claim over the Hawaiian Islands is “only” by virtue of a joint resolution of annexation. Not by conquest and not by prescription, which is lapse of time. But by a joint resolution, which, as a congressional action, has no force and effect beyond the borders of the United States.
In order for the readers to understand the scope and magnitude of the legal consequences of the United States’ actions in its prolonged and illegal occupation of the Hawaiian Kingdom, here follows the Hawaiian Kingdom’s Reply and Opposition in its entirety. The footnotes have been omitted but can be retrieved in the filings.
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II. UNITED STATES RECOGNITION OF THE HAWAIIAN KINGDOM AS A STATE AND ITS GOVERNMENT PREDATES 1898
The legal status of the Hawaiian Kingdom as an independent State predates, not postdates, 1898. FGDs omit in their pleading that President John Tyler on July 6, 1844, explicitly recognized the Hawaiian Kingdom as an independent State by letter from Secretary of State John C. Calhoun to the Hawaiian Commission. This was confirmed by the arbitral tribunal in Larsen v. Hawaiian Kingdom:
[I]n the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties.
The recognition of the Hawaiian Kingdom as a State was also the recognition of its government—a constitutional monarchy, as its agent. Successors in office to King Kamehameha III, who at the time of the United States recognition was King of the Hawaiian Kingdom, did not require diplomatic recognition. These successors included King Kamehameha IV in 1854, King Kamehameha V in 1863, King Lunalilo in 1873, King Kalākaua in 1874, and Queen Lili‘uokalani in 1891.
The legal doctrines of recognition of new governments only arise “with extra-legal changes in government” of an existing State. Successors to King Kamehameha III were not established through “extra-legal changes,” but rather under the constitution and laws of the Hawaiian Kingdom. According to Professor Peterson,
A government succeeding to power according to the constitution, basic law, or established domestic custom is assumed to succeed as well to its predecessor’s status as international agent of the state. Only if there is legal discontinuity at the domestic level because a new government comes to power in some other way, as by coup d’état or revolution, is its status as an international agent of the state open to question.
On January 17, 1893, by an act of war, the United States unlawfully overthrew the government of the Hawaiian Kingdom. President Grover Cleveland entered into an executive agreement with Queen Lili‘uokalani on December 18, 1893, in an attempt to restore the government but was politically prevented from doing so by members of Congress. The failure to restore the government, however, did not affect the legal status of the Hawaiian Kingdom as an independent State under international law.
In Texas v. White, the Supreme Court stated that a State “is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed.” The Supreme Court also stated that a “plain distinction is made between a State and the government of a State.” The Supreme Court’s position is consistent with international law where the “state must be distinguished from the government. The state, not the government, is the major player, the legal person, in international law.”
According to Judge Crawford, “[p]ending a final settlement of the conflict, belligerent occupation does not affect the continuity of the State. The governmental authorities may be driven into exile or silenced, and the exercise of the powers of the State thereby affected. But it is settled that the powers themselves continue to exist. This is strictly not an application of the ‘actual independence’ rule but an exception to it…pending a settlement of the conflict by a peace treaty or its equivalent.” There is no peace treaty or its equivalent between the Hawaiian Kingdom and the United States.
In 1996, remedial steps were taken to restore the Hawaiian government. An acting Council of Regency was established in accordance with the Hawaiian Constitution and the doctrine of necessity to serve in the absence of the Executive Monarch. The Council was established in similar fashion to the Belgian Council of Regency after King Leopold was captured by the Germans during the Second World War. As the Belgian Council of Regency was established under Article 82 of its 1821 Constitution, as amended, in exile, the Hawaiian Council was established under Article 33 of its 1864 Constitution, as amended, in situ. According to Professor Oppenheimer, the inability for the Belgian Council to convene the Legislature under Article 82 to provide a Regent due to Germany’s belligerent occupation it “did not create any serious constitutional problems. … While this emergency obtains, the powers of the King are vested in the Belgian Prime Minister and the other members of the cabinet.”
Like Belgium, Article 33 provides that the Cabinet Council “shall be a Council of Regency, until the Legislative Assembly, which shall be called immediately shall proceed to choose by ballot, a Regent or Council of Regency, who shall administer the Government in the name of the King, and exercise all the Powers which are constitutionally vested in the King.” Like the Belgian Council, the Hawaiian Council was bound to call into session the Legislative Assembly to provide for a regency but because of the prolonged belligerent occupation it was impossible for the Legislative Assembly to function. Until the Legislative Assembly can be called into session, Article 33 provides that the Cabinet Council, comprised of the Ministers of the Interior, Foreign Affairs, Finance and the Attorney General, “shall be a Council of Regency, until the Legislative Assembly” can be called into session. The operative words are “shall” and “until.”
The Hawaiian Council was established in accordance with the domestic laws of the Hawaiian Kingdom as they existed prior to the unlawful overthrow of the previous administration of Queen Lili‘uokalani, and, therefore, did not require diplomatic recognition like the previous administrations. Hence, the FGDs are estopped, as a matter of United States practice from 1846 to 1893 and international law, from denying the existence of the Hawaiian Kingdom as a State and its government—the Council of Regency.
III. PRESUMPTION OF CONTINUITY OF THE HAWAIIAN STATE
Under international law, there “is a presumption that the State continues to exist, with its rights and obligations…despite a period in which there is…no effective, government,” and that belligerent “occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” “A presumption is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted.” “If one were to speak about a presumption of continuity,” explains Professor Craven, “one would suppose that an obligation would lie upon the party opposing that continuity to establish the facts sustaining its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by a reference to a valid demonstration of legal rights, or sovereignty, on the part of the United States, absent of which the presumption remains.”
According to Craven, “[under international law,] as it existed at the critical date of 1898, it was generally held that a State might ceased to exist in one of three scenarios: a) By the destruction of its territory or by the extinction, dispersal or emigration of its population (a theoretical disposition). b) By the dissolution of the corpus of the State (cases include the dissolution of the German Empire in 1805-6; the partition of the Pays-Bas in 1831 or of the Canton of Bale in 1833). [And] c) By the State’s incorporation, union, or submission to another (cases include the incorporation of Cracow into Austria in 1846; the annexation of Nice and Savoy by France in 1860; the annexation of Hannover, Hesse, Nassau and Schleswig-Holstein and Frankfurt into Prussia in 1886). Of the three scenarios only the third would in principle apply to the Hawaiian situation, which occurs by an agreement that is evidenced by a valid treaty between the acquiring and the ceding State, whether in a state of peace or in a state of war. Since 1893, the Hawaiian Kingdom has been in a state of war with the United States.
The 1898 joint resolution of annexation is not a treaty of State “incorporation” under international law but rather an internal law of the United States that stems from a failed treaty. To give the joint resolution proper context, the legislative history is important in understanding the backstory of the joint resolution. The driving force for annexation was military interest as advocated by U.S. Naval Captain Alfred Mahan.
After the United States admitted unlawful overthrow of the Hawaiian Government, Mahan wrote a letter to the Editor of the New York Times where he advocated seizing the Hawaiian Islands. On January 31, 1893, he wrote that the Hawaiian Islands, “with their geographical and military importance, [is] unrivalled by that of any other position in the North Pacific.” Mahan used the Hawaiian situation to bolster his argument of building a large naval fleet. He warned that a maritime power could well seize the Hawaiian Islands, and that the United States should take that first step. He stated that to hold the Hawaiian Islands, “whether in the supposed case or in war with a European state, implies a great extension of our naval power. Are we ready to undertake this?” Mahan would have to wait four years to find an ally in President William McKinley’s Department of the Navy, Assistant Secretary of the Navy, Theodore Roosevelt.
Roosevelt sent a private and confidential letter, on May 3, 1897, to Mahan. He wrote, “I need not tell you that as regards Hawaii I take your views absolutely, as indeed I do on foreign policy generally. If I had my way we would annex those islands tomorrow.” Moreover, Roosevelt told Mahan that Cleveland’s handling of the Hawaiian situation was “a colossal crime, and we should be guilty of aiding him after the fact if we do not reverse what he did.” Roosevelt also assured Mahan “that Secretary [of the Navy] Long shares [their] views. He believes we should take the islands, and I have just been preparing some memoranda for him to use at the Cabinet meeting tomorrow.”
In a follow up letter to Mahan, on June 9, 1897, Roosevelt wrote that he “urged immediate action by the President as regards Hawaii. Entirely between ourselves, I believe he will act very shortly. If we take Hawaii now, we shall avoid trouble with Japan.” Eight days later, on June 16, 1897, the McKinley administration signed a treaty of “incorporation” with its American puppet—the Republic of Hawai‘i, in Washington, D.C. On the following day, Queen Lili‘uokalani submitted a formal protest to the U.S. State Department stating, “I declare such a treaty to be an act of wrong toward the native and part-native people of Hawaii, an invasion of the rights of the ruling chiefs, in violation of international rights both toward my people and toward friendly nations with whom they have made treaties, the perpetuation of the fraud whereby the constitutional government was overthrown, and, finally, an act of gross injustice to me.”
Ignoring the protest, President McKinley submitted the treaty for Senate ratification, which required a minimum of 60 votes under United States law. The Senate, however, was not convening until December 6, 1897. This prompted two Hawaiian political organizations to mobilize signature petitions protesting annexation. According to Professor Silva, the “strategy was to challenge the U.S. government to behave in accordance with its stated principles of justice and of government of the people, by the people, and for the people.” The Hawaiian Political Association (Hui Kalai‘āina) gathered over 17,000 signatures, and the Hawaiian Patriotic League (Hui Aloha ‘Āina) gathered 21,269 signatures. The last official census, done in 1890, tallied Hawaiian subjects at 48,107, and, therefore, the petitions, in fact, represented the majority of the Hawaiian citizenry.
The leaders representing the Hawaiian Patriotic League and the Hawaiian Political Association, arrived in Washington, D.C., on December 6, 1897, the same day the Senate opened its session, and were told there were 58 votes for annexation. The next day, they met with Queen Lili‘uokalani and chose her as chair of the Washington Committee. In that meeting, “they decided to present only the petitions of Hui Aloha ‘Āina because the substance of the two sets of petitions were different. Hui Aloha ‘Āina’s petition protested annexation, but the Hui Kālai‘āina’s petitions called for the monarchy to be restored. They agreed that they did not want to appear divided or as if they had different goals.”
Senators Richard Pettigrew and George Hoar met with the Committee and said they would lead the opposition in the Senate. Senator Hoar stated he would introduce opposition into the Senate and the Senate Foreign Relations Committee. “On December 9, with the delegates present, Senator Hoar read the text of the petitions to the Senate and had them formally accepted.” In the days that followed, the Committee would meet with many Senators urging them not to ratify the treaty. Two of the leading Senators for annexation were Senators Henry Cabot Lodge and John Morgan, who were both strong believers in Captain Mahan’s views on Hawai‘i.
Unbeknownst to the Queen and the Hawaiian delegates, Senators began to inquire into the military importance of annexing the Hawaiian Islands. On this matter, Senator James Kyle made a request, by letter, to Mahan, on February 3, 1898, where he wrote, “[r]ecent discussions in the Senate brought prominently to the front the question of the strategic features of the Hawaiian Islands, and in this connection many quotations have been made from your valuable and highly interesting contribution to literature in regard to these islands.”
This was war rhetoric to justify the preemptive seizure of a neutral State for military interests. It was precisely what Germany did in 1914 to justify its invasion and occupation of Luxembourg. Germany invaded Luxembourg before formally declaring war against France. German military commander, Herr von Jagow then stated, “to our great regret, the military measures which have been taken have become indispensable by the fact that we have received sure information that the French military were marching against Luxemburg. We were forced to take measures for the protection of our army and the security of our railway lines.” Herr von Jagow then issued a proclamation stating “all the efforts of our Emperor and King to maintain peace have failed. The enemy has forced Germany to draw the sword. France has violated the neutrality of Luxemburg and has commenced hostilities on the soil of Luxemburg against German troops, as has been established without a doubt.” The French protested against this German invasion and confirmed there were no French troops in Luxembourg. Thus, according to Garner, “The alleged intentions of France were merely a pretext, and the violation of Luxemburg was committed by Germany solely in her military interest and in no sense on the ground of military necessity.”
It appears the Senators were not swayed by Mahan’s position because by the time the Hawaiian Committee left Washington, D.C., on February 27, 1897, they had successfully chiseled the 58 Senators in support of annexation down to 46. Unable to garner the necessary 60 votes, the treaty failed by March, yet war with Spain was looming over the horizon, and the Hawaiian Kingdom would have to face the belligerency of the United States again. American military interests would be the driving forces behind the occupation of the islands, and Mahan’s philosophy, the guiding principles. On April 25, 1898, Congress declared war on Spain.
On May 1, 1898, the U.S.S. Charleston, a protect cruiser, was commissioned. Then on May 5, it was ordered to lead a convoy of 2,500 troops to reinforce Dewey in the Philippines and Guam. In a move to deliberately violate Hawaiian neutrality, the convoy set a course to re-coal and arrived in Honolulu harbor on June 1. This convoy took on 1,943 tons of coal before it left on June 4. A second convoy of troops arrived in Honolulu harbor on June 23 and took on 1,667 tons of coal. On June 8, H. Renjes, the Spanish Vice-Counsel in Honolulu, lodged a formal protest. Renjes declared, “In my capacity as Vice Consul for Spain, I have the honor today to enter a formal protest with the Hawaiian Government against the constant violations of Neutrality in this harbor, while actual war exists between Spain and the United States of America.”
The U.S. gave formal notice to the other powers of the existence of war so that these powers could proclaim neutrality, yet the United States was also violating the neutrality of the Hawaiian Kingdom at that time. From Professor Bailey’s view, the position taken by the United States “was all the more reprehensible in that she was compelling a weak nation to violate the international law that had to a large degree been formulated by her own stand on the Alabama claims. Furthermore, in line with the precedent established by the Geneva award, Hawaii would be liable for every cent of damage caused by her dereliction as a neutral, and for the United States to force her into this position was cowardly and ungrateful.” Bailey also wrote, “At the end of the war, Spain or a cooperating power would doubtless occupy Hawaii, indefinitely if not permanently, to insure payment of damages with the consequent jeopardizing of the defenses of the Pacific Coast.”
On May 4, Representative Francis Newlands submitted a joint resolution for the annexation of the Hawaiian Islands to the House Committee on Foreign Affairs. On May 17, the joint resolution was reported out of the Committee without amendment and headed to the floor of the House of Representatives. The joint resolution’s accompanying Report justified the congressional action to seize the Hawaiian Islands as a matter of military interest, which was advocated by Mahan.
The Congressional record clearly showed that when the joint resolution of annexation reached the floor of the House of Representatives, members of Congress knew the limitations of congressional laws. Representative Thomas H. Ball emphatically stated, “[t]he annexation of Hawaii by joint resolution is unconstitutional, unnecessary, and unwise. …Why, sir, the very presence of this measure here is the result of a deliberate attempt to do unlawfully that which can not be done lawfully.” When the resolution reached the Senate, Senator Augustus Bacon sarcastically remarked that the “friends of annexation, seeing that it was not possible to make this treaty in the manner pointed out by the Constitution, attempted then to nullify the provision in the Constitution by putting that treaty in the form of a statute, and here we have embodied the provisions of the treaty in the joint resolution which comes to us from the House.” Senator William Allen added, “[t]he Constitution and the statutes are territorial in their operation; that is, they can not have any binding force or operation beyond the territorial limits of the government in which they are promulgated.” He later reiterated, “I utterly repudiate the power of Congress to annex the Hawaiian Islands by a joint resolution.”
Despite these objections the Congress passed the joint resolution and President McKinley signed it into law on July 7, 1898. This notwithstanding, the Department of Justice in 1988 concluded in a legal opinion, it is “unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution. Accordingly, it is doubtful that the acquisition of Hawaii can serve as an appropriate precedent for a congressional assertion of sovereignty over an extended territorial sea.”
Since the United States failed to carry out its obligation to reinstate the Executive Monarch and her Cabinet, under the executive agreement concluded with the Cleveland administration, the McKinley administration took complete advantage of its puppet called the Republic of Hawai‘i, and deliberately violated Hawaiian neutrality during the war. This served as leverage to force the hand of Congress to pass the joint resolution purporting to annex a foreign State. This was revealed while the Senate was in secret session on May 31, 1898, where Senator Lodge argued that the “[a]dministration was compelled to violate the neutrality of those islands, that protests from foreign representatives had already been received, and complications with other powers were threatened, that the annexation or some action in regard to those islands had become a military necessity.”
The transcripts of the secret session would not be made public until January 1969, after a historian noted there were gaps in the Congressional records. The transcripts were made public after the Senate passed a resolution authorizing the U.S. National Archives to open the records. The Associated Press in Washington, D.C., reported that “the secrecy was clamped on during a debate over whether to seize the Hawaiian Islands—called the Sandwich Islands then—or merely developing leased areas of Pearl Harbor to reinforce the U.S. fleet in Manila Bay.”
In violation of international law and the treaties with the Hawaiian Kingdom, the United States maintained the insurgents’ control until the Congress could reorganize its puppet. By statute, the Congress changed the name of the Republic of Hawai‘i to the Territory of Hawai‘i on April 30, 1900. Later, on March 18, 1959, the Congress, again by statute, changed the name of the Territory of Hawai‘i to the State of Hawai‘i. According to the U.S. Supreme Court, however, “[n]either the Constitution nor the laws passed in pursuance of it have any force in foreign territory,” which renders these congressional acts ultra vires. Of significance is this Court’s Article III status that derives from Section 9(a) of the 1959 Statehood Act.
Under the maxim ex injuria jus non oritur, FGDs’ argument that “[t]he United States annexed Hawaii in 1898, and Hawaii entered the union as a state in 1959” fails to constitute “a valid demonstration of legal rights, or sovereignty, on the part of the United States.” Therefore, the United States has provided no “facts sustaining its rebuttal” of the continuity of the Hawaiian State. Furthermore, under international law, the 1898 joint resolution of annexation and the 1959 Statehood Act, are considered internationally wrongful acts, and the FGDs are estopped from asserting that it is the legitimate sovereign over the Hawaiian Islands.
IV. DEFENDANTS ARE PRECLUDED FROM INVOKING ITS INTERNAL LAW AS A JUSTIFICATION FOR NOT COMPLYING WITH ITS INTERNATIONAL OBLIGATIONS
When the United States assumed control of its installed puppet under the new title of Territory of Hawai‘i in 1900, and later the State of Hawai‘i in 1959, it surpassed “its limits under international law through extraterritorial prescriptions emanating from its national institutions: the legislature, government, and courts.” The purpose of this extraterritorial prescription was to conceal the belligerent occupation of the Hawaiian Kingdom and bypass their duty to administer the laws of the occupied State in accordance with customary international law at the time, which was later codified under Article 43 of the 1907 Hague Regulations. According to Professor Benvinisti, “[t]he occupations of Hawaii, The Philippines, and Puerto Rico reflected the same unique US view on the unlimited authority of the occupant.” This extraterritorial application of American municipal laws is prohibited by the rules of jus in bello.
The occupant may not surpass its limits under international law through extra-territorial prescriptions emanating from its national institutions: the legislature, government, and courts. The reason for this rule is, of course, the functional symmetry, with respect to the occupied territory, among the various lawmaking authorities of the occupying state. Without this symmetry, Article 43 could become meaningless as a constraint upon the occupant, since the occupation administration would then choose to operate through extraterritorial prescription of its national institutions.
According to Article 27 of the 1969 Vienna Convention on the Law of Treaties, FGDs are prohibited from “invok[ing] the provisions of its internal law as justification for its failure to perform a treaty,” which is Article 43 of the 1907 Hague Regulations. Although the United States has not ratified the Vienna Convention, U.S. foreign relations law pronounced the rule that no State may invoke its internal law as justification for the nonobservance of a treaty by which it is bound. In Coplin v. United States, the Supreme Court referred to the U.S. government’s brief in Weinberger v. Rossi: “[a]though the Vienna Convention is not yet in force for the United States, it has been recognized as an authoritative source of international treaty law by the courts…and the executive branch.” The court was referring to Article 27 of the Vienna Convention. “The first sentence of article 27 gives expression to a well-established principle of international law that a State may not evade its international obligations by pleading its own law as an excuse for noncompliance.” While the Federal Rules of Civil Procedures and the Local Rules of the Court are not internal law, they are administrative rules that do not have binding force but are instructional for the purposes of these proceedings until the Court transforms itself into an Article II Court and declare these rules to be binding.
V. DISTINGUISHING THE INSTITUTIONAL JURISDICTION OF THE PERMANENT COURT OF ARBITRATION FROM THE SUBJECT MATTER JURISDICTION OF THE LARSEN ARBITRAL TRIBUNAL
FGDs erred when they stated that “[c]entral to Professor Lenzerini’s opinion is an arbitration between an individual, Lance Larsen, and the Plaintiff before the Permanent Court of Arbitration (“PCA”) at the Hague, which Plaintiff and Professor Lenzerini believe is a tacit acknowledgment of Plaintiff’s status as a sovereign entity. However, the final arbitral award from the PCA in this dispute, issued on February 5, 2001, explicitly stated that, ‘in the absence of the United States of America [as a party] the Tribunal can neither decide that Hawaii is not part of the USA, nor proceed on the assumption that it is not.’”
Plaintiff is puzzled by this statement, given Plaintiff’s previous pleadings clearly distinguishes between the institutional jurisdiction of the PCA and the subject matter jurisdiction of the arbitral tribunal. What are the undisputed facts is that a notice of arbitration was filed by Larsen’s counsel with the International Bureau of the PCA on November 8, 1999, and that six months later the International Bureau, by virtue of Article 47 of the 1907 Convention for the Pacific Settlement of International Disputes (“1907 Convention”), established the arbitral tribunal on June 9, 2000. Professor Lenzerini, in his opinion attached to Plaintiff’s motion for judicial notice, addressed the actions taken by the International Bureau of the PCA prior to the formation of the arbitral tribunal, which the civil law tradition explains from an evidentiary standpoint, and not the arguments of the arbitral tribunal, which did not have subject matter jurisdiction because of the indispensable third-party rule. Without the Hawaiian Kingdom being a juridical fact, the International Bureau could not have completed the juridical act of establishing the arbitral tribunal in the first place.
The institutional jurisdiction of the International Criminal Court (“ICC”) was also recently the central issue relating to the “Situation in the State of Palestine.” Like Article 47 of the 1907 Convention, Article 12(2)(a) of the Rome Statute grants the ICC the authority to “exercise its jurisdiction” to investigate international crimes within the territory of a State Party to the Statute. Professor Malcolm Shaw authored an amicus curiae brief filed with the ICC’s Pre-Trial Chamber I on March 16, 2020, that addressed the question of Palestinian Statehood. According to Shaw:
[W]hether or not Palestine is a state is actually critical to defining and determining the Court’s territorial jurisdiction in this matter. If Palestine is not a state, then it cannot have sovereignty over territory and cannot come within the terms of article 12 of the Statute. Thus, in the absence of clear and irrefutable evidence of Palestine’s existence as a state and taking into account the lack of an international consensus in this regard, both quantitative and qualitative, the Court cannot assert that there is such a state at this point in time.
Article 12 does not refer to the subject matter jurisdiction of an ICC trial court, but rather provides institutional jurisdiction for the Prosecutor of the ICC to investigate international crimes that may or may not go to trial. Similarly, Article 47 does not refer to the subject matter jurisdiction of the arbitral tribunal, but rather provides the institutional jurisdiction for the International Bureau to form the arbitral tribunal to resolve an international dispute.
VI. CONCLUSION
The FGDs have provided no legal basis for the Court to grant FGDs’ cross-motion to dismiss. While this Court has yet to transform itself from an Article III Court to an Article II Court, the Plaintiff perceives this Court to be in a state of due diligence regarding Plaintiff’s motion for judicial notice. In the meantime, neither the Plaintiff nor the FGDs can get relief for their amended complaint and cross-motion to dismiss, respectively, until the Court possesses subject matter and personal jurisdiction as an Article II Court pursuant to Pennoyer v. Neff.
On September 30, 2021, Magistrate Judge Rom A. Trader issued an Order granting the Motion for Leave to File Amended Amicus Curiae Brief on Behalf of Nongovernmental Organizations with Expertise in International Law and Human Rights Law [ECF 90]. Amici filed their Amended Amicus Curiae Brief on October 6, 2021 [ECF 96]. Before the Court can address FGDs’ motion to dismiss it must first transform itself into an Article II Court for the reasons stated in the filed Amicus Brief, which is “trustworthy evidence of what [international] law really is.”
Therefore, this Court is bound by treaty law to take affirmative steps to transform itself into an Article II Court by virtue of Article 43 of the 1907 Hague Regulations, just as the International Bureau of the PCA established the arbitral tribunal by virtue of Article 47 of the 1907 Convention because of the juridical fact of the Hawaiian Kingdom’s existence as a State. This Court is bound to transform itself into an Article II Court because it is situated within the territory of the Hawaiian Kingdom and not within the territory of the United States. Furthermore, FGDs have provided no rebuttable evidence to the contrary other than invoking its internal laws as justification for not complying with its international obligations, which are barred by customary international law and treaty law.
Clerk Enters Default for State of Hawai‘i Officials in Hawaiian Kingdom v. Biden and U.S. Files Response to Judicial Notice of Civil Law
Yesterday, the Clerk of the United States District Court for the District of Hawai‘i entered default for the State of Hawai‘i, Governor David Ige, Securities Commissioner Ty Nohara, and Director of the Department of Taxation Isaac Choy, in federal lawsuit Hawaiian Kingdom v. Biden.
In talks with Hawaiian Kingdom Attorney General Dexter Ka‘iama, the State of Hawai‘i Attorney General’s office requested an extension of time to file a response to the Amended Complaint that was filed on August 11, 2021. It was mutually agreed that the filing of a response was due no later than January 10, 2022.
The entry of default against the State of Hawai‘i and its officials prevents them from participating in the proceedings, and, more importantly, an entry of default is an acceptance of the allegations made against them by the Hawaiian Kingdom to be true. The next step is for the Hawaiian Kingdom to file a motion with the Court for default judgment so that it can grant the relief as stated in the Amended Complaint.
Before the Hawaiian Kingdom can file a motion for default judgment, the Court needs to first transform itself into an Article II Occupation Court so that it has jurisdiction over the case.
The Hawaiian Kingdom’s Motion for Judicial Notice of Civil Law on Juridical Fact of the Hawaiian State and the Consequential Juridical Act by the Permanent Court of Arbitration is critical for the Court to transform itself into an Article II Occupation Court, similar to Federal Article II Courts that were established in occupied Germany from 1945-1955.
The Hawaiian Kingdom did not file a Motion for Judicial Notice but rather a Request for Judicial Notice of the Civil Law. It was the Court that transformed the Request into a Motion and gave a timeline for the United States to respond and the Hawaiian Kingdom to reply to that response. A Request for Judicial Notice is considered by the Court alone. The United States filed their response on January 14, 2022, and the Hawaiian Kingdom is preparing to file their reply on January 28.
Instead of refuting the information provided in the Motion for Judicial Notice, the United States argues that it is the legitimate sovereign over the Hawaiian Islands because the “United States annexed Hawaii in 1898, and Hawaii entered the union as a state in 1959.” From this position it then argues that this “Court, the Ninth Circuit, and the courts of the state of Hawaii have repeatedly ‘rejected arguments asserting Hawaiian sovereignty’ distinct from its identity as a part of the United States.”
The Hawaiian Kingdom views the actions taken by the Court regarding the Motion for Judicial Notice as a matter of due diligence on the part of the Court, and, therefore, will be responding to the United States arguments and show why it is without merit.
The legal status of the Hawaiian Kingdom as an independent State predates, not postdates, 1898. The United States fails to address in its filing that President John Tyler on July 6, 1844, explicitly recognized the Hawaiian Kingdom as an independent State by letter from Secretary of State John C. Calhoun to the Hawaiian Commission. This was confirmed by the arbitral tribunal in Larsen v. Hawaiian Kingdom:
“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.”
On January 17, 1893, by an act of war, the United States unlawfully overthrew the government of the Hawaiian Kingdom. President Grover Cleveland entered into an executive agreement with Queen Lili‘uokalani on December 18, 1893, in attempt to restore the government but was politically prevented from doing so by members of Congress. The failure to restore the government, however, did not affect the legal status of the Hawaiian Kingdom as a sovereign and independent State under international law.
In Texas v. White, the Supreme Court stated that a “‘state,’ in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed.” The Supreme Court further stated that a “plain distinction is made [in the U.S. Constitution] between a State and the government of a State.”
Therefore, when the rebels seized control of the Texas government and joined the Confederacy in the Civil War it did not affect or change the State of Texas under the U.S. Constitution. The Supreme Court’s position is consistent with international law where the “state must be distinguished from the government. The state, not the government, is the major player, the legal person, in international law.”
According to Judge Crawford, “Pending a final settlement of the conflict, belligerent occupation does not affect the continuity of the State. The governmental authorities may be driven into exile or silenced, and the exercise of the powers of the State thereby affected. But it is settled that the powers themselves continue to exist. This is strictly not an application of the ‘actual independence’ rule but an exception to it…pending a settlement of the conflict by a peace treaty or its equivalent.” There is no peace treaty or its equivalent between the Hawaiian Kingdom and the United States.
In its reply, the Hawaiian Kingdom will expound on the legal presumption of continuity of the Hawaiian Kingdom as a State under international law, why the United States cannot invoke its internal law as a justification for not complying with international obligations, and distinguishing the institutional jurisdiction of the Permanent Court of Arbitration from the subject matter jurisdiction of the Larsen v. Hawaiian Kingdom arbitration tribunal, when it acknowledged the continued existence of the Hawaiian Kingdom as a juridical fact.
UPDATE: Federal Government Given Extension to File Opposition to Hawaiian Kingdom’s Motion for Judicial Notice of Civil Law
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.
Dr. Keanu Sai on “Tavis Smiley Talk Radio Show” on Pearl Harbor Attack
Click here to listen.