This past Monday
defense lawyers Dexter Kaiama and Stephen Laudig filed their response to the
State of Hawai‘i Attorney General’s opposition to their clients’ motion to
dismiss. They argued that the Attorney General “cannot be allowed to knowingly
and with intent benefit from the ‘war crime’ of usurpation of sovereignty that
consists in the ‘imposition of legislation or administrative measures by the
occupying power,’ which, in effect, leads to the violation of international law
by denying a Protected Person of the right to a fair and regular trial by a
properly constituted court. The prohibition of ‘war crimes’ is a jus cogens
norm under customary international law and neither the [Attorney General] nor
this Court can derogate from these peremptory norms.”
Kaiama and Laudig represent Deena Oana-Hurwitz, Loretta and Walter Ritte, Pualani Kanakaole-Kanahele, Kaliko Kanaele, Gene P.K. Burke, Alika Desha and Desmon Haumea. Both attorneys are also members of the National Lawyers Guild that “provides legal support to the movement demanding that the U.S., as the occupier, comply with international humanitarian and human rights law within Hawaiian Kingdom territory, the occupied.”
After state law enforcement officers
arrested 39 Kia‘i Mauna (protectors of the mountain) who were opposing
the building of the Thirty-Meter Telescope (TMT) on Mauna Kea on July 17, 2019,
the Attorney General filed charges of obstruction in the Hilo District Court.
On behalf of the 8 defendants, Kaiama and Laudig filed their motions to dismiss
on November 13, 2019, which provided clear and unequivocal evidence that
because the Hawaiian Kingdom continues to exist under international law the
District Court “is not a regularly constituted court” and therefore does not
have lawful jurisdiction to preside over the case.
An opposition to the motion to
dismiss was filed by the Attorney General on December 6, 2019. In its
opposition, the Attorney General provided no counter evidence of the Hawaiian
Kingdom’s existence and that the Hawaiian Islands have never been lawfully a
part of the United States. Instead, the Attorney General argues three points as
to why Judge Kanani Lauback should deny defendants’ motion to dismiss. The
first argument is that the political question doctrine prevents courts from
adjudicating the legality of the overthrow of the Hawaiian Kingdom and the
validity of the State of Hawai‘i. Second, the legal status of the State of
Hawai‘i has been adjudicated. And, third, international law does not override
acts of Congress.
On December 9, Kaiama and Laudig
filed a reply that starts off by stating that the Attorney General’s “statement
of relevant facts violates the principle of jus cogens and is not relevant to
the Court’s consideration of the instant motion.” Jus cogens is a legal
term that federal courts say “enjoy[s] the highest status within international
law,” and as such cannot be denigrated. International crimes, which includes
war crimes, are jus cogens norms.
In its reply, the defense pointed out that the unlawful imposition of United States laws and administrative policies constitute a war crime under customary international law. For their evidence, the defense cited a legal opinion written by Professor William Schabas, a leading expert in international criminal law and war crimes, titled Legal opinion on war crimes related to the United States occupation of the Hawaiian Kingdom since 17 January 1893. The defense argues that all “three fit squarely within the provisions of United States internal law—being legislation and administrative rules, which customary international law precludes a State from invoking as justification for its failure to comply with Article 43 of the Hague Regulations.” Article 43 of the Hague Regulation is a ratified treaty by the United States that obligates an Occupying State to administer the laws of the Occupied State. In this case the Occupying State is the United States and the Occupied States is the Hawaiian Kingdom.
A hearing on the motion to dismiss is scheduled for 8:30am on Friday, December 13, 2019, at the Hilo District Court.
The following is one of the topics covered by Dr. Sai in his letter of July 9, 2019. Maui County Council member Tamara Paltin requested of Dr. Sai his insights into the proposed construction of the Thirty-Meter Telescope. Dr. Sai’s letter is an attachment to Council member Paltin’s letter to University of Hawai‘i President David Lassner on July 12, 2019.
Invalidity of General Lease No. S-4191
Under General Lease No.
S-4191 dated June 21, 1968, the Board of Land and Natural Resources of the
State of Hawai‘i, as lessor, issued a 65-year lease to the University of
Hawai‘i with a commencement date of January 1, 1968 and a termination date of
December 31, 2033. The lease is comprised of 11,215.554 acres, more or less,
being a portion of Government lands of the ahupua‘a of Ka‘ohe situated at
Hamakua, Island of Hawai‘i identified under Tax May Key: 3rd/4.4.15:09.
The State of Hawai‘i claims
to have acquired title under Section 5(b) of the 1959 Hawai‘i Admissions Act,
Public Law 86-3 (73 Stat. 4), whereby “the United States grants to the State of
Hawaii, effective upon its admission into the Union, the United States’ title
to all public lands and other public property within the boundaries of the
State of Hawaii, title to which is held by the United States immediately prior
to its admission into the Union.” The United States derives its title from the
1898 Joint Resolution of Annexation (30 Stat. 750), which states
“Whereas the Government of the Republic of Hawaii having, in due form,
signified its consent, in the manner provided by its constitution…to cede and
transfer to the United States the absolute fee and ownership of all public,
Government, or Crown lands.”
The Republic of Hawai‘i proclaimed
itself on July 3, 1894, by a convention comprised of appointed members of the
Provisional Government and eighteen “elected” delegates. The Provisional
Government proclaimed itself on January 17, 1893 and claimed to be the
successor of the Hawaiian Kingdom. The Hawaiian Kingdom’s title derives from
the 1848 Act Relating to the Lands of His Majesty The King and of the
Government, whereby the ahupua‘a of Ka‘ohe is “Made over to the Chiefs and
People, by our Sovereign Lord the King, and we do hereby declare those lands to
be set apart as the lands of the Hawaiian Government, subject always to the
rights of tenants.”
According to President Grover
Cleveland, in his message to the Congress after investigating the illegal
overthrow of the Hawaiian Kingdom government that took place on January 17,
1893, the Provisional Government “was neither a government de facto nor de
jure.”[1] He did
not consider it a government. The President also concluded that “the
provisional government owes its existence to an armed invasion by the United
States.”[2] Being a
creature, or creation, of the US, it could not claim to be the lawful successor
of the Hawaiian Kingdom government with vested title to the ahupua‘a of Ka‘ohe.
As the successor to the Provisional Government, the Republic of Hawai‘i, as it
self-declared successor, could not take any better title than the Provisional
Government and hence did not have title to Ka‘ohe. The U.S. Congress in the
1993 Apology Resolution noted that the Republic of Hawai‘i was “self-declared.”[3]
The United States claims to
have acquired title to Ka‘ohe, by cession, from the Republic of Hawai‘i under
the 1898 Joint Resolution of Annexation. International law recognizes that the
“only form in which a cession can be effected is an agreement embodied in a
treaty between the ceding and the acquiring State.”[4] The Joint Resolution of
Annexation is not “an agreement embodied in a treaty.” It is a U.S. municipal
law from the Congress merely asserting that cession took place. The situation
is not unlike a neighbor holding a family meeting and claiming that they have
agreed that your house is now their house.
In a debate on the Senate
floor on July 4, 1898, Senator William Allen stated:
The Constitution and the statutes are territorial in their operation; that is, they can not have any binding force or operation beyond the territorial limits of the government in which they are promulgated. In other words, the Constitution and statutes can not reach across the territorial boundaries of the United States into the territorial domain of another government and affect that government or persons or property therein.[5]
The joint resolution is ipso facto null and void.[6]
In 1988, the U.S. Department
of Justice, Office of Legal Counsel (“OLC”) issued a legal opinion on the
lawfulness of the annexation of Hawai‘i by a joint resolution.[7] In its
opinion, it cited constitutional scholar Westel Willoughby:
The constitutionality of the annexation of Hawaii, by a simple legislative act, was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was denied, but it was denied that this might be done by a simple legislative act … Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force—confined in its operation to the territory of the State by whose legislature it is enacted.[8]
The OLC concluded, “It is
therefore unclear which constitutional power Congress exercised when it
acquired Hawaii by joint resolution. Accordingly, it is doubtful that the acquisition
of Hawaii can serve as an appropriate precedent for a congressional assertion
of sovereignty over an extended territorial sea.”[9] The United States cannot produce
any evidence of a conveyance of the ahupua‘a of Ka‘ohe from a grantor, vested
with the title. All it can produce is a joint resolution of Congress. This is
not a conveyance from a foreign State ceding territory.
Instead of providing evidence
of a conveyance of territory, i.e. treaty of cession, the State of Hawai‘i
Supreme Court in its October 30, 2018 majority decision In Re Conservation District Use Application for TMT,
SCOT-17-0000777, quoted from a book titled Who Owns the Crown Lands of
Hawai‘i written by Professor Jon Van Dyke.
The U.S. Supreme Court gave tacit recognition to the legitimacy of the annexations of Texas and Hawaiʻi by joint resolution, when it said in De Lima v. Bidwell, 182 U.S. 1, 196 (1901), that “territory thus acquired [by conquest or treaty] is acquired as absolutely as if the annexation were made, as in the case of Texas and Hawaii, by an act of Congress.” See also Texas v. White, 74 U.S. (7 Wall.) 700 (1868), stating that Texas had been properly admitted as a state in the United States.[10]
It is unclear what Professor
Van Dyke meant when he stated that the U.S. Supreme Court “gave tacit
recognition to the legitimacy of the annexation of Texas and Hawai‘i by joint
resolution,” because tacit, by definition, is to be “understood without being
openly expressed or stated.”[11]
Furthermore, this statement is twice irrelevant: first, the Court as a third
party to any cession of foreign territory has no standing to make such a
conclusion as to what occurred between the ceding and receiving States; and,
second, its opinion is a fabrication or what American jurisprudence calls a
legal fiction. Legal fictions treat “as true a factual assertion that plainly
was false, generally as a means to avoid changing a legal rule that required a
particular factual predicate for its application.”[12]
According to Professor Smith,
a “judge deploys a new legal fiction when he relies in crafting a legal rule on
a factual premise that is false or inaccurate.”[13] These “new legal fictions
often serve a legitimating function, and judges may preserve them—even in the
face of evidence that they are false—if their abandonment would have
delegitimating consequences.”[14]
The proposition that Texas
and Hawai‘i were both annexed by joint resolutions of Congress is clearly
false. In the case of Texas, Congress consented to the admission of Texas as a
State by joint resolution on March 1, 1845 with the following proviso, “Said
State to be formed, subject to the adjustment by this government of all
questions of boundary that may arise with other governments.” This condition
was referring to Mexico because as Texas was comprised of insurgents who were
fighting for their independence, Mexico still retained sovereignty and title to
the land. In its follow up joint resolution on December 29, 1845 that admitted
Texas as a State of the Union, it did state that the Congress consented “that
the territory properly included within, and rightfully belonging to, the
Republic of Texas.” These actions taken by the Congress is what sparked the
Mexican-American War in 1846.
Congress’ statement of
“rightfully belonging” is an opinion and the resolution mentions no boundaries.
The transfer of title to the territory, which included the territory comprising
Texas, came three years later on February 2, 1848 in a treaty of peace that
ended the Mexican-American War.
Under Article V of the treaty, the new boundary line between the United States and Mexico was to be drawn. “The boundary line between the two republics shall commence in the Gulf of Mexico, three leagues from land, opposite the mouth of the Rio Grande, otherwise called Rio Bravo del Norte.”[15] Rio Brava del Norte is the southern tip of Texas. If Texas was indeed annexed in 1845 by a joint resolution with its territory intact, there was no reason for the treaty to specifically include the territory of Texas. If it were true that Texas territory was ceded in 1845, Article V of the treaty would have started the boundary line just west of the Texas city of El Paso, which is its western border, and not from the Gulf of Mexico at its southern border. The truth is that the territory of Texas was not annexed by Congress in 1845 but was ceded by Mexico in 1848. The Rio Grande river is the southern border for the State of Texas.
With regard to the so-called
annexation of Hawai‘i in 1898 by Congress, there is no treaty ceding Hawaiian
territory as in the case of Texas. Like the Texas resolution, Congress stated,
Whereas the Government of the Republic of Hawaii having, in due form, signified its consent, in the manner provided by its constitution to ceded absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies, and also to cede and transfer to the United States the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining…
The reference to consent by
its constitution is specifically referring to Article 32, which states, the
“President, with the approval of the Cabinet, is hereby expressly authorized
and empowered to make a Treaty of Political or Commercial Union between the
Republic of Hawaii and the United States of America, subject to the
ratification of the Senate.”[16] There
is no treaty between the so-called Republic of Hawai‘i and the United States.
Furthermore, a constitutional provision is not an instrument of conveyance as a
treaty would be. So without a treaty from the Hawaiian Kingdom government as
the ceding State vested with the sovereignty and title to government lands,
which includes the ahupua‘a of Ka‘ohe, there was no change in the ownership of
the government lands.
Furthermore, Hawaiians of the
day knew there was no treaty as evidenced in the Maui News newspaper published
October 20, 1900. The Editor wrote,
Thomas Clark, a candidate for Territorial senator from Maui holds that it was an unconstitutional proceeding on the part of the United States to annex the Islands without a treaty, and that as a matter of fact, the Island[s] are not annexed, and cannot be, and that if the democrats come into power they will show the thing up in its true light and demonstrate that that the Islands are de facto independent at the present time.
The legal fiction that Texas
and Hawai‘i were annexed by a joint resolution of the Congress is just a patently
false when measured “against the results of existing empirical research.”[17] For
the State of Hawai‘i Supreme Court to restate, and embrace, this falsifiable
legal fiction is simply a trick that allows it to fabricate its own false and falsifiable
fiction regarding the State of Hawai‘i. In its TMT decision the Court, in conflict
with overwhelming evidence, stated, “[W]e reaffirm that ‘[w]hatever may be said
regarding the lawfulness’ of its origins, ‘the State of Hawai‘i…is now a lawful
government.’”[18] For
the State of Hawai‘i to be a “lawful government” it must be vested with lawful
authority absent of which it is not lawful. The State of Hawai‘i Supreme Court,
being a branch of the State of Hawai‘i itself, cannot declare it “is now a
lawful government” without making reference to some intervening factor that
vested the State of Hawai‘i with lawful authority.
When addressing the lawful
authority and sovereignty of the United States of America, the United States
Supreme Court specifically referred to a particular and significant intervening
factor. It stated that as “a result of the separation from Great Britain by the
Colonies, acting as a unit, the powers of external sovereignty passed from the
Crown not to the Colonies severally, but to the Colonies in their collective
and corporate capacity as the United States of America.” The Court was
referring to “the Treaty of Paris of September 3, 1783, by which Great Britain
recognized the independence of the United States.”[19]
It has been erroneously assumed
that the US Congress vested the State of Hawai‘i with lawful authority in the
1959 Statehood Act[20] in an
exercise of the constitutional authority of Congress to admit new States into
the Federal union under Article IV, section 3, clause 1. There is no provision
in the US constitution for the admission of a state to the union that is on
territory not owned by the US. So before the US Congress can admit a new State
to the US the US must “own” the territory. According to the United States
Supreme Court:
Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens…, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.[21]
Since the Hawaiian Islands
were never annexed by the United States via treaty, Congressional acts, which are
municipal laws, may only operate on the territory of the United States. The
United States Supreme Court is relatively clear on this point and has stated
that the “municipal laws of one nation do not extend in their operation beyond
its own territory except as regards its own citizens.”[22] In another decision, the
United States Supreme Court reiterated, that “our Constitution, laws and
policies have no extraterritorial operation unless in respect of our own
citizens.”[23]
Under international law, the United
States is an occupying power in the Hawaiian Islands and as such the occupying
Power is obligated, under Article 43 of the 1907 Hague Convention, IV, and
Article 64 of the 1949 Geneva Convention, IV, to administer Hawaiian Kingdom
laws. In his communication to the members of the Judiciary of the State of
Hawai‘i of February 25, 2018, the United Nations Independent Expert, Dr. Alfred
deZayas, reiterated this obligation under international law.
I have come to understand that the lawful political status of the Hawaiian Islands is that of a sovereign nation-state in continuity; but a nation-state that is under a strange form of occupation by the United States resulting from an illegal military occupation and fraudulent annexation. As such, international laws (the Hague and Geneva Conventions) require that governance and legal matters within the occupied territory of the Hawaiian Islands must be administered by the application of the laws of the occupied state (in this case, the Hawaiian Kingdom), not the domestic laws of the occupier (the United States) (Enclosure “6”).
The United States never
acquired any kind of title to Ka‘ohe and, since one can only convey what one
has, it could not convey what it did not have to the State of Hawai‘i under
Section 5(b) of the 1959 Admissions Act. Thus the State of Hawai‘i was never
lawfully vested with any title to the ahupua‘a of Ka‘ohe, and therefore its so-called
general lease no. S-4191 to the University of Hawai‘i dated June 21, 1968 is
defective. Under Hawaiian Kingdom law, the ahupua‘a of Ka‘ohe is government
land under the management of the Ministry of
the Interior and not the State of Hawai‘i Board of Land and Natural
Resources. Consequently, all 10 subleases from the University of Hawai‘i that
extend to December 31, 2033 are defective as well, which include:
National Aeronautics and Space
Administration dated November 29, 1974;
Canada-France-Hawai‘i Telescope
Corporation dated December 18, 1975;
Science Research Council dated
January 21, 1976;
California Institute of Technology
dated December 20, 1983;
Science and Engineering Research
Council dated February 10, 1984;
California Institute of Technology
dated December 30, 1985;
Associated Universities, Inc., dated
September 28, 1990;
National Astronomical Observatory of
Japan dated June 5, 1992;
National Science Foundation dated
September 26, 1994; and
Smithsonian Institution dated
September 28, 1995.
As such, the University of Hawai‘i’s sublease to TMT International Observatory, LLC, is also defective. Therefore, the University of Hawai‘i cannot sublease what it does not have to TMT International Observatory LLC.
[7] Douglas Kmiec,
Department of Justice, “Legal Issues Raised by Proposed Presidential
Proclamation to Extend the Territorial Sea,” 12 Opinions of the Office of Legal Counsel 238 (1988).
WAILUKU, Hawaii – In an urgent plea, Maui County Council member Tamara Paltin announced that she has asked University of Hawaii President David Lassner to put a hold on moving forward with the construction of the Thirty Meter Telescope (“TMT”) planned for the summit of Mauna Kea.
Paltin issued a letter of inquiry to President Lassner on Friday, July 12th in response to Governor Ige’s news conference last week announcing that construction would begin next week on July 15th. In her letter Paltin expressed “grave concerns for the safety of Maui County’s residents and all individuals mobilizing to access and assemble atop Mauna Kea.”
It is anticipated that kupuna to keiki and all ages in betweenfrom all islands will be present to exercise traditional Native Hawaiian cultural and religious access, as well as protest the construction of the TMT. With emotions high, extreme weather conditions, law enforcement presence and talk of the potential deployment of LRAD (Long-Range Acoustic Hailing Devices) for crowd control, Councilmember Paltin fears for the safety and protection of all who will be present on the summit.
Councilmember Paltin sought out insight from Dr. Keanu Sai who has served as a resource for and provided training presentations to the Council’s Planning and Sustainable Land Use Committee, of which Paltin chairs, concerning the proposed construction of the TMT on the summit of Mauna Kea, in light of the ahupua`a of Ka`ohe being so-called ceded lands.
Paltin’s letter reiterates Dr. Sai’s focus on three topics underlying the proposed TMT construction: the invalidity of General Lease No. S-4191 between the State of Hawai`i Board of Land and Natural Resources, as the lessor, and the University of Hawai`i, as the lessee; the war crime of destruction of property on the summit of Mauna Kea by the previous telescopes; and the third topic of native tenant rights within the ahupua`a of Ka`ohe, and describes Dr. Sai’s response as “quite illuminating to say the least.”
Councilmember Paltin requested that President Lassner have the University’s legal counsel review Dr. Sai’s assessment of the situation, and stated that, “this is not a political issue, but an issue of the rule of law, which is foundational, and for our communities throughout the islands to have confidence that the State of Hawai`i officials, to include the Counties, believe in and abide by.”
A full copy of Councilmember Tamara Paltin’s letter to UH President Lassner can be located at mauicounty.us/paltin/.
For more information, please contact Councilmember Paltin’s office.
(BIVN)– The Hawaiʻi County Council again heard testimony from “protected persons” in support of absent Puna councilmember Jen Ruggles on Wednesday.
Hawaiian Kingdom subjects and advocates, as they have in the past, told the council to “cease and desist from legislating” until the county’s Corporation Counsel can assure the governing body that they are not incurring criminal liability under U.S. and international law. Ruggles’ council seat has sat empty during meetings as she awaits an opinion from Corp Counsel.
On September 24, Ruggles held a community meeting in Keaʻau to explain her ongoing absence from council, and to show her constituents how she came to understand the Hawaiian Kingdom still exists as a state in continuity that is under a “strange form of occupation” by the United States.
During the Keaʻau meeting, and in a subsequent media release, Ruggles announced she was putting Queen’s Health Systems on notice, saying that changes to the hospital’s charter since 1909 “appear to violate article 47 and 50 of the Geneva Convention IV.” Ruggles said she called upon the Chief Executive Office of the Queen’s Health System, Mr. Art Ushijima, and the “Board of Trustees to comply with the 1859 Charter and to admit aboriginal Hawaiians, as that term was understood under Kingdom law, for medical care free of charge. Failure to do so [would] appear to constitute war crimes under Article 47 and 50 of the [Geneva Convention, IV].”
Ruggles said, “as an agent of the the United States as defined under the Hague Convention and whistleblower, it is my duty to hold individuals and other officials of the State of Hawai‘i and the United States government accountable for apparent violations of the Hague and Geneva Conventions and the rights of civilians within the occupied territory under the title of protected persons.”
Ruggles’ fellow Hawaiʻi County Councilmembers weighed-in on the situation in recent news articles. A “perplexed” Hilo councilman Aaron Chung told the Hawaiʻi Tribune-Herald he found it very confusing that Ruggle’s “would use her title in the County Council to advance a particular position.”
The West Hawaiʻi Today reported on October 2 that Council Chair Valerie Poindexter said she was “not going to fund the office if she’s not going to do any more legislative work,” and has refused Ruggles’ request to hire a council aide to fill the position recently vacated by one of Ruggles’ two staffers.
Testifiers took aim at Poindexter on Wednesday. Kale Gumapac told the chair to “please be aware that by impeding Councilwoman Ruggles in anyway only provides more evidence for ‘War Crime’ charges against you with no statute of limitation.”
Council member Jen Ruggles released a letter she sent last week notifying Queen’s Health Systems of the illegal and prolonged occupation of Hawai’i and how it appears it may be violating the rights of protected persons in Hawai’i. She stated that she, as an agent for the United States, which is an occupying Power, and one who took an oath to support the constitution of the United States, is bound to uphold the 1907 Hague Convention, IV, and the 1949 Geneva Convention, IV, and ensure respect for the conventions in all circumstances.
In her letter Council member Ruggles referenced a February 25, 2018 communication from United Nations Independent Expert, Dr. Alfred M. deZayas, to the State of Hawai‘i judges in which he stated:
“I have come to understand that the lawful political status of the Hawaiian Islands is that of a sovereign nation-state in continuity; but a nation-state that is under a strange form of occupation by the United States resulting from an illegal military occupation and a fraudulent annexation. As such, international laws (the Hague and Geneva Conventions) require that governance and legal matters within the occupied territory of the Hawaiian Islands must be administered by the application of the laws of the occupied state (in this case, the Hawaiian Kingdom), not the domestic laws of the occupier (the United States).”
The U.S. Senate ratified the Hague and Geneva Conventions making both of these treaties part of federal law under Article VI of the federal constitution and which must be faithfully carried out in territory that the United States is occupying. As a whistle blower, Council member Ruggles sees it as her duty to hold individuals and other officials of the State of Hawai‘i and the United States government accountable for violations of the provisions of the Hague and Geneva Conventions and the rights of civilians within the occupied territory under the title of protected persons.
Council member Ruggles came to learn that the Queen’s Hospital was formed as a corporation on June 20, 1859. Article One of the Hospital’s Charter provides for the establishment of a permanent hospital for the “treatment of indigent sick and disabled Hawaiians, as well as such foreigners and others who may choose to avail themselves of the same.” It was understood, at the time, that the term ‘Hawaiians’ meant aboriginal Hawaiians, both pure and part. Under the Charter, the Hawaiian Monarch served as President of a Board of Trustees comprised of ten persons to be appointed by the government and ten persons to be elected by corporation shareholders.
The government appropriated funding for the maintenance of the hospital.
In 1900, George W. Smith, a Trustee of Queen’s Hospital, stated in an article published by the Pacific Commercial Advertiser that “Queen’s Hospital is, from the nature of its charter, a quasi-private institution. When it was chartered it was provided that all Hawaiians of native birth, should be treated free of charge. Foreigners were to be treated by payment of fees.”
No other country or government in the world at the time is known by her to have had such a system of government subsidized health care for a majority of its national population which was free of charge. The Soviet government followed this practice in 1920, but that was due to the political theory of communism. After the Second World War, in 1948, the British government followed suit, which, like the Hawaiian Kingdom, was not a communist State. The Nordic countries followed with Sweden in 1955, Iceland in 1956, Norway in 1956, Denmark in 1961, and Finland in 1964. The United States has never subsidized health care free of charge.
After pressure to sever the Hawaiian government’s interest in Queen’s Hospital and to no longer admit native Hawaiians free of charge, the Board of Trustees, with the approval of Territorial Governor, Walter F. Frear, amended the Charter. In 1909, the phrase in the original 1859 Charter “for the treatment of indigent sick and disabled Hawaiians” was replaced with “for the treatment of sick and disabled persons.” The change was made secretively. The only news coverage it received at the time was in one newspaper, the Evening Bulletin, which made no mention of the change of servicing aboriginal Hawaiians free of charge. Under the title of “IS APPROVED TRUSTEES REDUCED,” the Bulletin wrote,
“By the new amendment to their character, the application for which was approved by Governor Frear this morning, the number of trustees of Queen’s Hospital will be reduced from twenty to seven members. The responsibility of the government trusteeship will also cease with the new articles of incorporation.”
By 1939, Victor Stewart Kaleoaloha Houston, a former Congressional delegate for the Territory of Hawai‘i, “was presenting lectures at various Hawaiian Civic Clubs castigating Queen’s Hospital for ignoring Native Hawaiians’ medical needs and reneging on the promises of the original charter. In newspapers the main themes of Houston’s one man challenge to Queen’s practices was set out for the public by these questions: What ever happened to free medical care for Hawaiians and what is Queen’s doing with the Queen Emma Trust monies?”
Gradually aboriginal Hawaiians were denied health care unless they paid, and as time went on, this provision of the Queen’s Hospital charter was nearly forgotten. In 1967, the name of Queen’s Hospital was changed to the Queen’s Medical Center. In 1985, the Queen’s Health Systems with a Board of Trustees was established as the parent company of Queen’s Medical Center along with Molokai General Hospital, North Hawai‘i Community Hospital, Queen Emma Land Company, Queen’s Development Corporation, and Queen’s Insurance Exchange. Under Queen’s Health Systems there are four hospitals—The Queen’s Medical Center, The Queen’s Medical Center – West O‘ahu, Molokai General Hospital, and North Hawai‘i Community Hospital—and seven health care centers in Hawai‘i Kai, Hilo, two in Honolulu, Kapolei, Kaua‘i and Kona. I will refer to the corporation by its original name, the Queen’s Hospital.
Hawaiian subjects of aboriginal blood, both pure and part, are protected persons whose rights during the U.S. occupation are protected under the Geneva Convention. Council member Ruggles sees that it is also her duty as a whistle blower and agent for the United States to ensure that their rights are respected and enforced. According to the Office of Hawaiian Affairs, “Today, Native Hawaiians are perhaps the single racial group with the highest health risk in the State of Hawai‘i. This risk stems from high economic and cultural stress, lifestyle and risk behaviors, and late or lack of access to health care.” The ‘lack of access to health care’ is what troubles Council member Ruggles knowing that the Queen’s Hospital was specifically established, under Hawaiian Kingdom law, to provide for their health care, free of charge.
According to the International Committee of the Red Cross Commentaries, Article 47 of the Geneva Convention means that “changes made in the internal organization of the State must not lead to protected persons being deprived of the rights and safeguards provided them. Consequently it must be possible for the Convention to be applied to them in its entirety, even if the Occupying Power has introduced changes in the institutions or government of the occupied territory.” Furthermore, under the provisions of Article 50 of the GCIV regarding preferential measures for children’s medical care, in this case with the Queen’s Hospital, the occupying State “who occupied the whole or part of a territory where such measures are in force, cannot on any pretext abrogate them or place obstacles in the way of their application. This rule applies not only to preferential measures prescribed in the Convention but to any other measures of the same nature taken by the occupied State.”
Council member Ruggles stated that the changes to the charter since 1909 violate the Hague and Geneva Conventions. In light of these violations, she called upon the Chief Executive Office of the Queen’s Health System, Mr. Art Ushijima, and the “Board of Trustees to comply with the 1859 Charter and to admit aboriginal Hawaiians, as that term was understood under Kingdom law, for medical care free of charge. Failure to do so [would] appear to constitute to constitute war crimes under Article 47 and 50 of the [Geneva Convention, IV].”
Council member Ruggles alerted Mr. Ushijima to the fact that there “seems to be a direct nexus of deaths of aboriginal Hawaiians as ‘the single racial group with the highest health risk in the State of Hawai‘i [that] stems from…late or lack of access to health care’ to the crime of genocide as defined by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The Genocide Convention was also ratified by the United States Senate, and, like the Hague and Geneva Conventions, are a part of United States federal law.
(BIVN)– A community meeting organized by Puna councilwoman Jen Ruggles to explain her ongoing absence from council drew a standing room-only crowd to the Keaʻau Community Center on Monday night.
Ruggles declared on August 21 “that she had come to understand that she may be in violation of her oath of office to uphold the U.S. Constitution and may be incurring criminal liability under both U.S. federal law and international law,” a media release stated. “Through her attorney, Stephen Laudig, she formally requested the County Office of Corporation Counsel provide her a proper legal opinion.”
Laudig was present at the meeting, as was Dr. David Keanu Sai, a scholar and expert in international law. Sai has also served as the lead agent for the Hawaiian Kingdom in international arbitration proceedings before the Permanent Court of Arbitration at the Hague, Netherlands.
Using a power point presentation projected onto the community center wall, Ruggles walked constituents through her understanding of the Hawaiian Kingdom as a state in continuity that is under a “strange form of occupation” by the United States. Ruggles shared letters she received that prompted her to make her decision, and took questions from the audience.
In an earlier media release, Ruggles said she intended “to educate her constituents on their rights as protected persons under U.S. and international law, and share what work she has started to continue to represent and advocate on behalf of her district.”
(BIVN)– In lengthy public testimony before the Hawaii County Council meeting got underway in Hilo on Wednesday, Hawaiian Kingdom supporters spoke out in support of absent councilwoman Jen Ruggles, and demanded the council “cease and desist” legislative activity.
Ruggles’ seat was empty as the councilmember from Puna announced she would “refrain from legislating” until the county’s corporation counsel can provide a “proper legal opinion” that will assure her that she “is not incurring criminal liability under international humanitarian law and U.S. law.”
Ruggles’ recent decisionwas not on the Wednesday’s council agenda for discussion, so testifiers seeking to support Ruggles’ position spoke on other matters, such as Bill 160 – a measure that amends the County Code of Ethics by requiring that officials “provide accurate and factual information to the public” to the best of their knowledge.
Public testifiers – both Hawaiian Kingdom subjects as well as American citizens – identified themselves as protected persons as defined under Article 4 of the 1949 Fourth Geneva Convention. Many read from similarly worded written testimony.
“I too have come to learn that the Hawaiian Kingdom continues to exist as an independent and sovereign State that has been under an illegal and prolonged occupation by the United States since January 17, 1893,” stated Kale Gumapac, who testified in Hilo. “I am also aware that the United Nations Independent Expert Dr. Alfred deZayas sent a memorandum to members of the State of Hawai‘i judiciary which stated ‘international laws (the Hague and Geneva Conventions) require that governance and legal matters within the occupied territory of the Hawaiian Islands must be administered by the application of the laws of the occupied state (in this case, the Hawaiian Kingdom), not the domestic laws of the occupier (the United States).’ And according to Amnesty International, war crimes are crimes that violate the laws or customs of war defined by the Hague and Geneva Conventions.”
“Article 43 of the Hague Regulations and Article 64 of the Fourth Geneva Convention obligates the United States to administer Hawaiian Kingdom law, not United States law,” Gumapac continued. “This deliberate in failure by the United States to administer Hawaiian kingdom law has led to grave breaches under Article 147 of the Fourth Geneva Convention and international humanitarian law. which constitutes war crimes committed against me as a protected person.”
Gumapac finished with a statement that was often repeated by others speakers on Wednesday. “This body illegally enacts United States laws in violation of the Hague and Geneva Conventions and as a victim of war crimes that stem from this unlawful legislation, I demand that this body immediately cease and desist,” Gumapac said.
Multiple testifiers spoke for roughly two hours before the Hawaii County Council closed public comment and went ahead with the scheduled agenda.
On August 29, 2018, Assistant United States Attorney for the District of Columbia Rhonda L. Campbell sent a communication to Dr. David Keanu Sai, Chairman of the Council of Regency and Petitioner for an extension to respond to the Emergency Petition for Writ of Mandamus filed with the United States District Court for the District of Columbia.
“Sir: I will be requesting a 30-day extension of time, to and through, October 10, 2018, to Answer or otherwise respond to your complaint. Please inform me of your position. Thank you.”
Dr. Sai responded later that day:
“Ma’am: Notwithstanding the emergency nature of the petition for writ of mandamus, I am agreeable to your request.”
PRESS RELEASE
For immediate release – 17 July 2018
Petition for an Emergency Writ of Mandamus filed with U.S. Federal District Court in Washington, D.C., against President Trump regarding the prolonged American occupation of the Hawaiian Islands
[David Keanu Sai vs. Donald John Trump et. al, Case: 1:18-cv-01500]
HONOLULU, 17 July 2018 — On Monday morning, 25 June 2018, the Chairman of the acting Council of Regency for the Hawaiian Kingdom, H.E. David Keanu Sai, Ph.D., filed with the United States District Court for the District of Columbia a Petition for an Emergency Writ of Mandamus against President Donald John Trump. This Petition concerns the illegal and prolonged occupation of the Hawaiian Islands and the failure of the United States to administer the laws of the Hawaiian Kingdom as mandated under Article 43 of the 1907 Hague Convention, IV, Respecting the Laws and Customs of War on Land (36 Stat. 2199) and under Article 64 of the 1949 Geneva Convention, IV, Relative to the Protection of Civilian Persons in Time of War (6 U.S.T. 3516). The United States has ratified both treaties. The case has been assigned to Judge Tanya S. Chutkan under civil case no. 1:18-cv-01500.
Under American rules of civil procedure, a petition for writ of mandamus is an administrative remedy that seeks to compel an officer or employee of the United States or any of its agencies to fulfill their official duties. It is not a complaint alleging certain facts to be true. The Hague and Geneva Conventions obligates the United States, as an occupying State, to administer the laws of the occupied State. There is no discretion on this duty to administer Hawaiian Kingdom law. This duty is mandated under international humanitarian law.
Furthermore, according to the U.S. Constitution, treaties, such as the Hague and Geneva Conventions, are the supreme law of the land, and the United States is bound by them just as they are bound by the U.S. Constitution or any of the laws enacted by the Congress. Consequently, the failure of the United States to administer Hawaiian Kingdom laws has created a humanitarian crisis of unimaginable proportions where war crimes have and continue to be committed with impunity. War crimes have no statutes of limitation.
The Petition mentions Iraq’s violation of international humanitarian law when it invaded Kuwait on 2 August 1990, and, like the United States, did not administer Kuwaiti law as mandated by the Hague and Geneva Conventions. This led to the formation of the United Nations Compensation Commission (UNCC) by the United Nations Security Council under resolution 687 (1991). The mandate of the UNCC was to process claims and pay compensation for losses or damages incurred as a direct result of Iraq’s unlawful invasion and occupation of Kuwait. In total, the UNCC awarded $52.4 billion dollars for an unlawful occupation that lasted seven months. If this formula is applied to the unlawful invasion and occupation of the Hawaiian Kingdom since 16 January 1893 that compensation amount would be staggering.
This law suit comes on the heels of a memorandum, dated 25 February 2018, by the United Nations Independent Expert, Office of the High Commissioner for Human Rights, to the members of the judiciary of the State of Hawai‘i. The memo’s author, Dr. Alfred deZayas, who served as the Independent Expert until he retired on 30 April 2018, stated:
“As a professor of international law, the former Secretary of the UN Human Rights Committee, co-author of book, The United Nations Human Rights Committee Case Law 1977-2008, and currently serving as the UN Independent Expert on the promotion of a democratic and equitable international order, I have come to understand that the lawful political status of the Hawaiian Islands is that of a sovereign nation-state in continuity; but a nation-state that is under a strange form of occupation by the United States resulting from an illegal military occupation and a fraudulent annexation. As such, international laws (the Hague and Geneva Conventions) require that governance and legal matters within the occupied of the Hawaiian Islands must be administered by the application of the laws of the occupied state (in this case, the Hawaiian Kingdom), not the domestic laws of the occupier (the United States).”
In the Petition, the Hawaiian Kingdom begins with a preliminary statement concerning international proceedings held at the Permanent Court of Arbitration, The Hague, Netherlands.
“When the South China Sea Tribunal cited in its award on jurisdiction the Larsen v. Hawaiian Kingdomcase held at the Permanent Court of Arbitration (“PCA”), that should have garnered international attention, especially after the PCA acknowledged the Hawaiian Kingdom as an independent state and not the fiftieth State of the United States of America. The Larsen case was a dispute between a Hawaiian national and his government, who he claimed was negligent for allowing the unlawful imposition of American laws over Hawaiian territory that led to the alleged war crimes of unfair trial, unlawful confinement and pillaging.”
Chairman Sai served as Agent for the Hawaiian government in Larsen v. Hawaiian Kingdom, PCA Case no. 1999-01. Before forming the ad hoc tribunal, the PCA acknowledged the Hawaiian Kingdom’s continued existence as an independent State and that the Hawaiian Kingdom would access the jurisdiction of the PCA as a non-Contracting Power pursuant to Article 47 of the 1907 Hague Convention for the Pacific Settlement of International Disputes.
Chairman Sai stated, “the United States, as an occupier, is mandated to administer Hawaiian Kingdom law over Hawaiian territory and not its own, until they withdraw. This is not a mere descriptive assumption by the occupying State, but rather it is the law of occupation. And this was precisely what the Larsen v. Hawaiian Kingdom arbitration was founded on—the unlawful imposition of American laws.” In 2001, Bederman and Hilbert reported in the American Journal of International Law:
“At the center of the PCA proceedings was…that the Hawaiian Kingdom continues to exist and that the Hawaiian Council of Regency (representing the Hawaiian Kingdom) is legally responsible under international law for the protection of Hawaiian subjects, including the claimant. In other words, the Hawaiian Kingdom was legally obligated to protect Larsen from the United States’ “unlawful imposition [over him] of [its] municipal laws” through its political subdivision, the State of Hawaii. As a result of this responsibility, Larsen submitted, the Hawaiian Council of Regency should be liable for any international law violations that the United States had committed against him.”[1]
The Tribunal was comprised of three renowned international jurists, namely, Judge James Crawford, SC, current member of the International Court of Justice, Judge Christopher Greenwood, QC, former member of the International Court of Justice, and Dr. Gavan Griffith, former Australian Solicitor General.
Larsen sought to have the Tribunal adjudge that the United States had violated his rights. He then sought the Tribunal to adjudge that the Hawaiian government was liable for those violations. Although the United States was formally invited, by the Hawaiian government, to join in the arbitration on 3 March 2000, it chose not to. The United States absence thus raised the indispensable third-party rule for Larsen to overcome. In its award (para. 7.4), however, the Tribunal acknowledged the Hawaiian Kingdom’s lawful political status since the nineteenth century.
“[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.”
After returning from oral hearings held at The Hague in December of 2000, the Council of Regency adopted a policy of education and exposure of the Hawaiian Kingdom’s lawful political status as an independent State. The Council made this decision to address the American policy of denationalization—Americanization that was implemented throughout the schools in the islands since 1906. Denationalization is a war crime. Within three generations, Americanization had effectively obliterated the national consciousness of the Hawaiian Kingdom in the minds of Hawai‘i’s people. This denationalization has resulted in a common misunderstanding that since President Barrack Obama was born in Hawai‘i, he was born within the United States. He was not. He was born in the Hawaiian Kingdom to an American mother and a Kenyan father. As such, he was born an American citizen by parentage—jus sanguinis, but not as a natural born citizen—jus soli.
It would take 18 years of education and exposure to prompt the Hawaiian government to file the Petition for Emergency Writ of Mandamus. The Petition was filed with the Federal Court in accordance with 28 U.S.C. §1331 (federal question jurisdiction), 28 U.S.C. §1651(a) (writ of mandamus), and 5 U.S.C. §702 (waiver of sovereign immunity). The Petition also names as nominal respondents twenty-eight countries that had diplomatic relations with the Hawaiian Kingdom to include treaties, and five international agencies. All of the respondents received a copy of the filed Petition, through the United States Postal Service, with a cover letter noting that a summons would be forthcoming.
In his letter to the United Nations Secretary General, Chairman Sai invoked the law of State responsibility. Chairman Sai stated:
“As an internationally wrongful act, all States shall not ‘recognize as lawful a situation created by a serious breach within the meaning of Article 40, nor render aid or assistance in maintaining that situation (Responsibility of States for Internationally Wrongful Acts, 2001),’ Article 40 provides that a ‘breach of such an obligation is serious if it involves a gross or systemic failure by the responsible State to fulfill the obligation.’ By letter to United States President Donald John Trump dated 5 July 2018, the Hawaiian Kingdom gave notice of claim and invoked responsibility of the United States, in accordance with Article 43, for a serious breach of an obligation to comply with international humanitarian law.”
Chairman Sai then made the following request to the Secretary General:
“As a State not a member of the United Nations, but a member of the Universal Postal Union since 1882, being a specialized agency of the United Nations, I should be grateful if you would have this letter and the full text of its enclosures circulated as an official document of the General Assembly and of the Security Council.”
The United States has been in an illegal state of war against the Hawaiian Kingdom since 1893
On 9 March 1893, President Grover Cleveland, at the request of Queen Lili‘uokalani, conducted an investigation into the overthrow of the Hawaiian Kingdom government that occurred on 17 January 1893. Her Majesty notified the President that the overthrow of her government was committed by the United States diplomat assigned to the Hawaiian Kingdom, John Stevens, and by the unauthorized landing of United States armed forces.
President Cleveland appointed James Blount, former Chairman of the House Committee on Foreign Affairs, as Special Commissioner. Commissioner Blount arrived in Honolulu on 31 March 1893 and initiated his investigation the following day. After sending periodical reports to Secretary of State Walter Gresham in Washington, D.C., Blount completed his final report on 17 July 1893. On 18 October 1893, Gresham submitted his report to the President. Gresham concluded:
“The Government of Hawaii surrendered its authority under a threat of war, until such time only as the Government of the United States, upon the facts being presented to it, should reinstate the constitutional sovereign… Should not the great wrong done to a feeble but independent State by an abuse of the authority of the United States be undone by restoring the legitimate government? Anything short of that will not, I respectfully submit, satisfy the demands of justice.”
“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 imperiled 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 facto and the de jure government. In point of fact the existing government instead of requesting the presence of an armed force protested against it.”
The President concluded:
“By an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has thus been overthrown. A substantial wrong has thus been done which a due regard for our national character as well as the rights of the injured people requires we should endeavor to repair.”
When President Cleveland concluded that by an act of war committed against the Hawaiian Kingdom on 16 January 1893, which led to the unlawful overthrow of the Hawaiian government the following day, he acknowledged the situation under international law transformed from a state of peace to a state of war. Only by way of a treaty of peace could a state of war be transformed back to a state of peace. To explain this transformation, Chairman Sai, as Hawaiian Ambassador-at-large, authored a memorandum titled The Larsen v. Hawaiian Kingdom Case at the Permanent Court of Arbitration and Why There Is An Ongoing Illegal State of War with the United States of America Since 16 January 1893 (16 October 2017). This memorandum has been translated into Farsi, French, German, Italian, Japanese, Russian and Spanish.
On the very same day the President notified the Congress of the illegal overthrow of the Hawaiian government, an agreement of restoration and peace was negotiated between the new U.S. diplomat assigned to the Hawaiian Kingdom, Albert Willis, and the Queen. Negotiations began on 13 November and lasted until 18 December 1893. However, due to political wrangling going on in the Congress, the President was unable to fulfill the United States’ obligation under the agreement of peace with the Queen. Five years later in 1898, the United States fraudulently annexed the Hawaiian Islands during the Spanish-American war and fortified it as a military outpost. Hawai‘i currently serves as headquarters for the U.S. Indo-Pacific Command.
In 2013, the New York Timesreported North Korea’s announcement that “all of its strategic rocket and long range artillery units ‘are assigned to strike bases of the U.S. imperialist aggressor troops in the U.S. mainland and on Hawaii.” The Hawaiian Kingdom’s existential threat has been heightened today by the rhetoric of U.S. President Donald Trump and North Korea’s Kim Jong-un.
Instead of establishing a system to administer Hawaiian Kingdom law in 1893, the United States maintained their installed insurgency, calling itself the Provisional government, who, under the protection of U.S. troops, unlawfully seized control of the Hawaiian government apparatus. In 1894, these insurgents renamed themselves as the Republic of Hawai‘i. Six years later, the U.S. Congress changed that name to the Territory of Hawai‘i. And in 1959, Congress changed that name to the State of Hawai‘i. The U.S. Congress could no more establish a government in the Hawaiian Kingdom by enacting domestic statutes, than it could establish a government in Germany or in the United Kingdom.
Since the United States’ admitted unlawful overthrow of the Hawaiian Kingdom government in 1893, there has been no lawful government in the Hawaiian Islands until the Hawaiian Council of Regency was established in 1995. The unlawful overthrow of the Hawaiian government 125 years ago, however, did not affect the continuity of the Hawaiian Kingdom as an independent State under international law. The Hawaiian Kingdom continued to remain in existence just as Iraq continued to exist despite its government being overthrown in 2003 by United States armed forces.
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[1] David Bederman & Kurt Hilbert, “Arbitration—UNCITRAL Rules—justiciability and indispensible third parties—legal status of Hawaii,” 95 American Journal of International Law (2001) 927, at 928.
On May 10, 2018, Mrs. Routh Bolomet, a Hawaiian-Swiss citizen, provided Dr. Keanu Sai with a remarkable document that came out of the United Nations Office of the High Commissioner for Human Rights in Geneva, Switzerland, regarding Hawai‘i. Mrs. Bolomet told Dr. Sai that it was her hope that the document authored by Dr. Alfred M. deZayas, would help in bringing the American occupation to an end. Dr. Sai said, “To call this document ‘remarkable’ is an understatement.”
In 2006, the United Nations Human Rights Council was formed as an intergovernmental organization within the United Nations system. The Council replaced the United Nations Commission on Human Rights that was established in 1946. The Council is comprised of 47 member States of the United Nations that serve for a three year term.
On September 29, 2011, the Council passed resolution 18/6 in order to establish an Independent Expert for the promotion of a democratic and equitable international order. The Council decided to establish a new Independent Expert, with the authority to identify possible obstacles to the promotion and protection of a democratic and equitable international order, to identify best practices and to work in cooperation with States in order to foster the adoption of measures at the local, national, regional and international levels.
The President of the Council, Ambassador Laura Dupuy Lasserre of Uruguay, nominated Dr. deZayas and on March 23, 2012 he was elected by the Council as the first Independent Expert on the promotion of a democratic and equitable international order by the United Nations Human Rights Council. The United States served as a member State of the Council when Dr. deZayas was elected.
The Council requested the newly elected Independent Expert to present its first report to the Council at its twenty-first session in 2012. An interim report was submitted in 2012 that was followed by a full report in 2013. Yearly reports have been submitted ever since.
An Independent Expert, also known as a Special Rapporteur, is a person who examines and reports on a specific human rights issue or theme. The Independent Expert reports to both the United Nations Human Rights Council and the United Nations General Assembly. Dr. deZayas completed two three-year terms where his mandate was completed on April 30, 2018.
Of the fifteen topics of responsibility for the Independent Expert that come under its mandate, two topics resonate regarding Hawai‘i’s situation of a prolonged and illegal occupation.
The right of peoples and nations to permanent sovereignty over their natural wealth and resources; and
The right of all peoples to peace.
In order to achieve the realization of these subjects, the Independent Expert, among other tasks, will:
Identify possible obstacles to the promotion and protection of a democratic and equitable order, and to submit proposals and/or recommendations to the Human Rights Council on possible actions in that regard;
To raise awareness concerning the importance of promoting and protecting of a democratic and equitable international order; and
To work in cooperation with States in order to foster the adoption of measures at the local, national, regional and international levels aimed at the promotion and protection of a democratic and equitable international order.
Of particular note in his 2012 initial Report to the Council, Dr. deZayas stated:
“The Independent Expert will build on the studies already conducted by the Commission on Human Rights, the Subcommission on the Promotion and Protection of Human Rights, the Human Rights Council and its Advisory Committee, as well as on the work of the family of special rapporteurs, General Assembly and Commission on Human Rights resolutions on the right of peoples to peace (Assembly resolution 39/11, Commission resolution 2002/71).”
The Commission on Human Rights resolution 2002/71, adopted on April 25, 2002, regarding “the right of peoples to peace” affirmed “the obligation of all States to refrain in their international relations from the threat or use of force against the against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.” It is apparent that this reference would directly apply to the United States violation of the Hawaiian Kingdom’s territorial integrity and its political independence, which brought about an illegal state of war.
In his 2013 Report to the United Nations General Assembly, Dr. deZayas was unaware of Hawai‘i’s true legal status as an independent and sovereign State that has been under an illegal and prolonged occupation. He assumed that Hawai‘i was a part of the United States and that the native population (aboriginal Hawaiians) had the status of indigenous peoples with a right to self-determination.
This misrepresentation is understandable given the fact that the United States and the State of Hawai‘i actively promoted this false narrative, and some aboriginal Hawaiians even attend sessions of the United Nations Permanent Forum on Indigenous Issues in New York, in addition to participating in United Nations Human Rights bodies, in Geneva, promoting aboriginal Hawaiians as a colonized people and not as nationals of an occupied State.
Under the heading “Lack of democratic participation by indigenous and unrepresented peoples” in the 2013 Report, Dr. deZayas notes aboriginal Hawaiians as an indigenous people. A reference is made in the Report to Concluding Observations of the Human Rights Committee on the Second and Third U.S. Reports to the Committee (2006) in footnote 55 under the heading of “indigenous and unrepresented people.” The Committee was comprised of 18 experts that assumed Hawai‘i to be a part of the United States. The Committee is not to be confused with the United Nations Human Rights Council, which is comprised of 47 member States (nation-states) and not individual experts. The Committee noted it:
“regrets that it has not received sufficient information on the consequences on the situation of Indigenous Native Hawaiians of Public Law 103-150 apologizing to the Native Hawaiian Peoples for the illegal overthrow of the Kingdom of Hawaii, which resulted in the suppression of the inherent sovereignty of the Hawaiian people.”
The underlying problem taken here by the Committee of experts is their failure to distinguish between the government and the nation-state (State). It was admitted by the United States that the overthrow was illegal, but it was an illegal overthrow of the government and not the nation-state. Despite the illegal overthrow of the government, the Hawaiian Kingdom, as a nation-state, would continue to exist under a prolonged occupation by the United States. This is similar to the American overthrow of the Iraqi government in 2003, but Iraq, as a nation-state, continued to exist under a military occupation until it ended in 2009. Iraqi nationals during the period of occupation were not a colonial territory of the United States.
In addition, the nation-state is called the “Hawaiian Kingdom,” not the “Kingdom of Hawai‘i.” The term “Kingdom of Hawai‘i” was used in the United States 1993 Apology Resolution, Public Law 103-150. It is an American term.
In the 1893 Protest by Queen Lili‘uokalani she stated, “I, Liliuokalani, 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.” She did not identify the country as the “Kingdom of Hawai‘i.”
Based on this misinformation of Hawai‘i’s legal status, Dr. deZayas provided the following recommendation in paragraph 69(n) of the 2013 Report.
“The General Assembly may consider revisiting the reality of self-determination in today’s world and refer to the Special Committee on Decolonization and/or other United Nations instances communications by indigenous and unrepresented peoples wherever they reside, inter alia, in Alaska, Australia, Canada, Chile, China, the Dakotas, French Polynesia, Hawaii, Kashmir, the Middle East, the Moluccas, New Caledonia, Northern Africa, Sri Lanka and West Papua, with reference to Chapter XI of the Charter of the United Nations. The General Assembly may also consider amending its rules and procedures to allow for the participation of indigenous and non-represented peoples. Meanwhile, the Assembly should urge States to implement the Declaration on the Rights of Indigenous Peoples. It should ensure that indigenous, non-represented peoples, marginalized and disempowered peoples, and peoples under occupation have a genuine opportunity to participate in decision-making processes.”
Five years later, Dr. deZayas, did a complete reversal on his understanding of Hawai‘i’s legal status from a colonized people with a right to self-determination to a nation-state, called the Hawaiian Kingdom, that has been under a military occupation by the United States since 1893.
On February 25, 2018, Dr. deZayas authored a memorandum titled “Re: The case of Mme Routh Bolomet” in response to a complaint submitted to the Council by Mrs. Bolomet in 2017. Without getting into the particulars of Mrs. Bolomet’s complaint, the Independent Expert addressed the broader issue of the military occupation of the Hawaiian Kingdom and the requirement of the United States, as the occupying State, to administer the laws of the occupied State, being the Hawaiian Kingdom. He stated,
“I have come to understand that the lawful political status of the Hawaiian Islands is that of a sovereign nation-state in continuity; but a nation-state that is under a strange form of occupation by the United States resulting from an illegal military occupation and a fraudulent annexation. As such, international laws (the Hague and Geneva Conventions) require that governance and legal matters within the occupied territory of the Hawaiian Islands must be administered by the application of the laws of the occupied state (in this case the Hawaiian Kingdom), not the domestic laws of the occupier (the United States).
Here follows Dr. deZayas’ Memorandum in its entirety, which can be downloaded in PDF format.
His memorandum also serves as an amendment to the 2013 Report correcting the legal status of Hawai‘i as an occupied State and not an issue of self-determination for an indigenous group of people. In line with this change, Article 69(e) of his recommendations is more appropriate, “States should ratify the individual complaints procedures of the United Nations human rights treaties, adhere to and utilize the inter-State complaints procedures, and globalize the reach of the International Criminal Court.”
Reparations were made by Japan pursuant to Article 14(a), 1951 Japan Treaty of Peace, which states, “It is recognized that Japan should pay reparations to the Allied Powers for the damage suffering caused by it during the war.” Below are Japanese reparations to countries for 10 years of war (1941-51).
Italian reparations to countries for 9 years of war (1938-47) were made pursuant to Article 74 of the 1947 Italian Treaty of Peace.
Country
Amount in US$
Date of Treaty
Soviet Union
$100 million
Feb. 10, 1947
Albania
$5 million
“
Ethiopia
$25 million
“
Greece
$105 million
“
Yugoslavia
$125 million
“
Average
$72 million
Year—1947
Inflation calculator
$890 million
Year—2017
As a basis to calculate the amount of reparations that could be owed to the Hawaiian Kingdom by the United States up to the year of 2017, which is 124 years of war, the Japanese and the Italian reparations paid could serve as a guide by applying their years of war to the years of war with the Hawaiian Kingdom. In the case of Japan, reparations to be paid by the United States could be calculated at $25 billion, which is $200 million annually multiplied by 124 years of war with the Hawaiian Kingdom. In the case of Italy, reparations could be calculated at $12 billion, which is $99 million annually multiplied by 124 years of war with the Hawaiian Kingdom.
This measurement could also be applied to other countries who are parties to the conflict and who have been complicit in the belligerent actions taken by the United States against the Hawaiian Kingdom such as the 20 States that unlawfully recognized the United States surrogate calling itself the so-called Republic of Hawai‘i in 1894. These States include Austria-Hungary, Belgium, Brazil, Chile, China, France, Germany, Guatemala, Italy, Japan, Mexico, Netherlands, Norway-Sweden, Peru, Portugal, Russia, Spain, Switzerland, and the United Kingdom. According to renowned American jurist, Professor Ellery Stowell, Intervention in International Law (1921) at 349, n. 75, a “foreign state which intervenes in support of [insurgents] commits an act of war against the state to which it belongs, and steps outside the law of nations in time of peace.”
Seizing of Assets:
Seizure of Japanese assets in the territories of Allied Powers was also done pursuant to Article 14(a)(2)(I), 1951 Japan Treaty of Peace, which states, “Subject to the provisions of sub-paragraph (II) below, each of the Allied Powers shall have the right to seize, retain, liquidate or otherwise dispose of all property, rights and interests of (a) Japan and Japanese nationals, (b) persons acting for or on behalf of Japan or Japanese nationals, and (c) entities owned or controlled by Japan or Japanese nationals, which on the first coming into force of the present Treaty were subject to its jurisdiction.”
Seizure of Italian assets in the territories of Allied Powers were made pursuant to Article 79, Italian Treaty of Peace, which states, “Each of the Allied and Associated Powers shall have the right to seize, retain, liquidate or take any other action with respect to all property, rights and interests which on the coming into force of the present Treaty are within its territory and belong to Italy or to Italian nationals, and to apply such property or the proceeds thereof to such purposes as it may desire, within the limits of its claims and those of its nationals against Italy or Italian nationals, including debts, other than claims fully satisfied under other Articles of the present Treaty.”
In the United States, Japanese assets seized amounted to $85 million (inflation conversion for 2017—$752 million), and Italian assets seized amounted to $62 million (inflation conversion for 2017—$766 million). Pursuant to Presidential Executive Order no. 9567—Alien Property Custodian (1945), the United States took title by “vesting” of all property of Japan and Germany and their nationals. Under the 1948 War Claims Act proceeds derived from these assets would not be returned, but rather placed in a War Claims Fund from which payments would be made to United States citizens that suffered as a consequence of the war with Japan and Germany.
Assets held by the United States and other States who are parties to the conflict since January 16, 1893, to include their nationals, within the territorial jurisdiction of the Hawaiian Kingdom are yet to be determined. The liquidation of these assets could be utilized in similar fashion as the United States did regarding Japanese and German properties vested under Alien Property Custodian, to compensate Hawaiian subjects who were subjected to forced conscription into the United States armed forces, to include deaths, during World War I, World War II, Korean War and the Vietnam War.
Dr. Lynette Cruz, host of “Issues that Matter,” interviews Dr. Keanu Sai on recent trip to Italy. Dr. Sai was invited to participate in an academic conference in Ravenna, Italy, as well as guest lectures as the University of Siena Law School and at the University of Torino.
Many people are not familiar with dispute resolution under international law and the role the Permanent Court of Arbitration (PCA) plays in international relations.
When the first International Peace Conference was convened in July 1899 in The Hague, Netherlands, the major States of the world were in attendance. Its first treaty—Convention for the Pacific Settlement of International Disputes, established a global institution for international dispute settlement called the Permanent Court of Arbitration. This international court predates the Permanent Court of International Justice established by the League of Nations from 1922-1946 and its successor the International Court of Justice (ICJ) established by the United Nations from 1946-present.
The PCA is not your conventional court that has permanent sitting judges, but rather it has a permanent secretariat called the International Bureau, which is headed by a Secretary General. After the PCA accepts disputes from parties, the Bureau facilitates the establishment of ad hoc Tribunals in order to resolve the disputes depending on the arbitration agreement between the parties and the applicable rules. The fundamental difference between a court with judges and a tribunal with arbitrators is that the arbitrators are selected by the parties based on their expertise in the area of the dispute. Judges may not be experts in areas of the dispute and therefore there is a need to rely on expert witnesses. Arbitration alleviates that requirement because the arbitrators themselves are the experts.
The PCA was initially limited to disputes between States that involved matters of public international law as well as arbitrating disputes over territorial sovereignty. By the 1930s, the PCA expanded its jurisdiction to include private parties that had a dispute with a State. One of these first cases involved a dispute between Radio Corporation of America, a private party, and China, being the State (RCA vs. China). Today, the jurisdiction of the PCA include disputes: (1) between two or more States; (2) a State and an international organization; (3) two or more international organizations; (4) a State and a private party; and (5) an international organization and a private party.
In 1999, a dispute arose between the Government of the Hawaiian Kingdom and a Hawaiian subject over the unlawful imposition of American laws in Hawaiian territory. The Hawaiian subject, Lance Larsen, was convicted under American laws and was incarcerated for 30 days, 7 of which were in solitary confinement. Mr. Larsen’s attorney, Ms. Ninia Parks, alleged that the Hawaiian Government was “negligent” by not taking affirmative steps to prevent the imposition of American laws in the Hawaiian Kingdom. She also alleged that the Hawaiian Government was a violation of its 1849 Treaty with the United States. Article 8 of the treaty states, “and each of the two contracting parties engage that the citizens or subjects of the other residing in their respective States shall enjoy their property and personal security, in as full and ample manner of their own citizens or subjects, of the subjects or citizens of the most favored nation, but subject always to the laws and statutes of the two countries respectively.”
After negotiations in Honolulu, an arbitration agreement was reached and on November 8, 1999, it was submitted to the PCA for acceptance. The arbitration agreement provided the allegations:
“(a) Lance Paul Larsen, a Hawaiian subject, alleges that the Government of the Hawaiian Kingdom is in continual violation of its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America, and in violation of the principles of international law laid [down] in the Vienna Convention on the Law of Treaties, 1969, by allowing the unlawful imposition of American municipal laws over claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom; and
(b) Lance Paul Larsen, a Hawaiian subject, alleges that the Government of the Hawaiian Kingdom is also in continual violation of the principles of international comity by allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.”
As part of the International Bureau’s due diligence into the status of the Hawaiian Kingdom as an independent State under international law, the PCA’s Secretary General Van Den Hout made a formal recommendation to David Keanu Sai, Agent for the Hawaiian Government, to provide a formal invitation to the United States to join in the arbitration proceedings. This would have one of three outcomes—first, the United States would dispute the existence of the Hawaiian Kingdom as a State and the PCA would terminate the proceedings, second, it could join the arbitration in order to answer Larsen’s allegations of violating his rights that led to his incarceration, or, third, it could refuse to join in the arbitration, but allow it to go forward.
In a conference call held in Washington, D.C., on March 3, 2000, between Mr. John Crook, United States Assistant Legal Adviser for United Nations Affairs, Ms. Parks and Mr. Sai, the United States was formally invited to join in the arbitration. It wasn’t until a couple of weeks later that the United States Embassy in The Hague notified the PCA that the United States will not join in the arbitration, but asked permission of the Hawaiian Government and Mr. Larsen’s attorney to have access to all pleadings, transcripts and records. The United States took the third option and did not deny the existence of the Hawaiian Kingdom as a State.
After the PCA verified and recognized that the Hawaiian Kingdom did exist as a State under international law with a legitimate government and that Larsen is a Hawaiian subject, steps were then taken to form the Tribunal. Mr. Keoni Agard, Esquire, was appointed by Ms. Parks, on behalf of Mr. Larsen, and the Hawaiian Government to serve as the Appointing Authority to work with the PCA in order to secure the appointment of three arbitrators. As the Appointing Authority, Mr. Agard was given a list of arbitrators provided by the PCA for each of the parties to select. The Hawaiian Government selected Professor Christopher Greenwood, QC, and Ms. Parks selected Dr. Gavan Griffith, QC. These two arbitrators then recommended the appointment of a Presiding Arbitrator, Professor James Crawford, SC, which both parties agreed to.
The Hawaiian arbitration fell under the PCA’s jurisdiction as a dispute between a “State and a private party.” The dispute was not about the existence of the Hawaiian Kingdom as a State under international law, but rather centered solely on whether Larsen could sue the Hawaiian Government for negligence by allowing American laws to be imposed in the Hawaiian Kingdom that caused his incarceration. The Tribunal stated to the parties that in this dispute the United States is a necessary party in order for Mr. Larsen to maintain his suit against the Hawaiian Government. The procedural questions that were given to the parties to answer in its written pleadings is whether or not these proceedings can continue without the participation of the United States. The Tribunal cited three international court cases that came before the ICJ and focused on necessary third parties as the precedence—Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom and the United States), East Timor (Portugal v. Australia), and Certain Phosphate Lands in Nauru (Nauru v. Australia).
After written pleadings were submitted, oral hearings were held at The Hague on December 7, 8, and 11, 2000, and the Arbitration Award was filed with the PCA on February 5, 2001. The court concluded that the United States was a necessary third party and without their participation in the arbitration proceedings, Mr. Larsen’s allegations of negligence against the Hawaiian Government could not move forward.
A common misunderstanding was that the dispute between Mr. Larsen and the Hawaiian Government centered on whether the Hawaiian Kingdom continues to exist as a State. It was not. The PCA recognized the continued existence of the Hawaiian Kingdom as a State because the United States, who claimed to have sovereignty over the Hawaiian Islands, did not refute the continued existence of the Hawaiian Kingdom when it had an opportunity to do so. The only claim that the United States had over the Hawaiian Islands was through American legislation and not a treaty. The PCA is very much aware that international law only allows annexation by treaty and not through a State’s municipal legislation.
Of significance in these international arbitration proceedings is that the Tribunal in its Arbitration Award acknowledged “that 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,” and the PCA recognized the continued existence of the Hawaiian Kingdom as a State in the twenty-first century.
To see the PCA’s explicit recognition of the Hawaiian Kingdom as a State go to the PCA Case Repository of Lance Larsen vs. The Hawaiian Kingdom, and scroll down to name of respondent, “The Hawaiian Kingdom (State),” who is represented by “Mr. David Keanu Sai, Agent, Mr. Peter Umialiloa Sai, First deputy agent, Mr. Gary Victor Dubin, Second deputy agent and counsel.”
Council member Jen Ruggles released a 
On May 10, 2018, Mrs. Routh Bolomet, a Hawaiian-Swiss citizen, provided Dr. Keanu Sai with a remarkable document that came out of the United Nations Office of the High Commissioner for Human Rights in Geneva, Switzerland, regarding Hawai‘i. Mrs. Bolomet told Dr. Sai that it was her hope that the document authored by 
The President of the Council, 
His memorandum also serves as an amendment to the 2013 Report correcting the legal status of Hawai‘i as an occupied State and not an issue of self-determination for an indigenous group of people. In line with this change, Article 69(e) of his recommendations is more appropriate, “States should ratify the individual complaints procedures of the United Nations human rights treaties, adhere to and utilize the inter-State complaints procedures, and globalize the reach of the International Criminal Court.”
As part of the International Bureau’s due diligence into the status of the Hawaiian Kingdom as an independent State under international law, the PCA’s Secretary General Van Den Hout made a formal recommendation to David Keanu Sai, Agent for the Hawaiian Government, to provide a formal invitation to the United States to join in the arbitration proceedings. This would have one of three outcomes—first, the United States would dispute the existence of the Hawaiian Kingdom as a State and the PCA would terminate the proceedings, second, it could join the arbitration in order to answer Larsen’s allegations of violating his rights that led to his incarceration, or, third, it could refuse to join in the arbitration, but allow it to go forward.
In a conference call held in Washington, D.C., on March 3, 2000, 
between Mr. John Crook, United States Assistant Legal Adviser for United Nations Affairs, Ms. Parks and Mr. Sai, the United States was formally invited to join in the arbitration. It wasn’t until a couple of weeks later that the United States Embassy in The Hague notified the PCA that the United States will not join in the arbitration, but asked permission of the Hawaiian Government and Mr. Larsen’s attorney to have access to all pleadings, transcripts and records. The United States took the third option and did not deny the existence of the Hawaiian Kingdom as a State.
After written pleadings were submitted, oral hearings were held at The Hague on December 7, 8, and 11, 2000, and the Arbitration Award was filed with the PCA on February 5, 2001. The court concluded that the United States was a necessary third party and without their participation in the arbitration proceedings, Mr. Larsen’s allegations of negligence against the Hawaiian Government could not move forward.