Since these proceedings were initiated 11 months ago with the filing of the initial complaint on May 20, 2021, Hawaiian Kingdom v. Biden, and then the filing of the amended complaint on August 11, 2021, there was always the “800-pound gorilla in the room” that the Court did not want to directly address until last week.

That gorilla was the continued existence of the Hawaiian Kingdom as a sovereign and independent State despite the unlawful overthrow of the Hawaiian government by the United States on January 17, 1893, and being belligerently occupied by the United States for over a century. If the gorilla exists, the Court can only exist as an Article II Court under international law operating in an occupied country. If the gorilla doesn’t exist, then the Court continues to exist as an Article III Court under United States law.

The amicus brief filed by the International Association of Democratic Lawyers, the National Lawyers Guild, and the Water Protectors Legal Collective explained why the Court’s present status as an Article III Court is unlawful because it is situated within the territory of the Hawaiian Kingdom and not the United States. As such, it must transform itself into an Article II Occupation Court.

Neither Magistrate Judge Rom Trader nor District Judge Leslie Kobayashi directly addressed the 800-pound gorilla until Judge Kobayashi issued the first Order on March 30, 2022, partially granting a motion to dismiss filed by Nervell, as the Swedish Honorary Consul to Hawai‘i. In her Order Judge Kobayashi stated:

Plaintiff argues that “[b]efore the Court can address the substance of [Nervell’s] motion to dismiss it must first transform itself into an Article II Court…” Plaintiff bases this argument on the proposition that the Hawaiian Kingdom is a sovereign and independent state. This district has uniformly rejected such a proposition. “‘[T]here is no factual (or legal basis) for concluding that the [Hawaiian] Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.’” Plaintiff’s request for the Court to “transform itself into an Article II Court” is therefore denied.

The Court admits that it could “transform itself into an Article II Court” but for “concluding that the [Hawaiian] Kingdom” does not exist as a State it could not. Conversely, if the Hawaiian Kingdom continues to exist as a State, the Court will then “transform itself into an Article II Court.”

The Court later noted that “Plaintiff asserts its claim against Nervell in his official capacity as Honorary Consul of Sweden to Hawai‘i. Nervell argues that, because Plaintiff’s claim is against him in his official capacity, the Court does not possess jurisdiction over him, pursuant to the Vienna Convention. The Court agrees.” The Hawaiian Kingdom at no time in these proceedings denied Sweden’s appointment of Defendant Nervell as the Honorary Consul of Sweden to Hawai‘i. Rather, the Hawaiian Kingdom’s position was that Defendant Nervell held an inchoate title as Honorary Consul because he did not receive his exequatur from the Hawaiian Foreign Ministry by virtue of Article XII of the 1852 Hawaiian-Swedish Treaty. Without accreditation by the Hawaiian Kingdom, Defendant Nervell cannot claim any “official capacity” under the Vienna Convention. Also, Defendant Nervell never provided evidence that the 1852 Hawaiian-Swedish Treaty was replaced by the 1793 United States-Swedish Treaty.

On March 31, 2022, the Court issued its second Order Denying Plaintiff’s Motion for Judicial Notice. The basis of the denial was the same in its previous Order that “‘there is no factual (or legal) basis for concluding that the [Hawaiian] Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature,” and, therefore, “the Ninth Circuit, this district court, and Hawai‘i state courts have all held that the laws of the United States and the State of Hawai‘i apply to all individuals in this State.”

Conversely, if the Hawaiian Kingdom continues to exist as a State, all “laws of the United States and the State of Hawai‘i” do not apply within the territory of the Hawaiian Kingdom. Judge Kobayashi initiated a legal dialogue with the 800-pound gorilla—the Hawaiian Kingdom.

The two Orders are not final, and according to the Federal Rules of Civil Procedure, the Hawaiian Kingdom, as the gorilla in this case, is given an opportunity to respond to the position taken by Judge Kobayashi that the gorilla doesn’t exist.

Last night, April 7, 2022, the Hawaiian Kingdom filed a Motion for Reconsideration that explained why both Orders violate international law and the American doctrine of separation of powers.

In both Orders, Judge Kobayashi, by a general verdict, denies the existence of the Hawaiian Kingdom as a sovereign and independent State. She cites U.S. Bank Tr., N.A. v. Fonoti, but provided no evidence or reasoning of the Court’s rejection of the continuity of the Hawaiian Kingdom as a State. The Fonoti decision directly cites a State of Hawai‘i case—State v. French, where the State of Hawai‘i appeals court stated, “this particular kind of claim was rejected in State v. Lorenzo, which held that presently there ‘is no factual (or legal) basis for concluding that the [Hawaiian] Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.”

But Judge Kobayashi’s Order omitted the word “presently” that precedes “there is no factual (or legal basis) for concluding that the Hawaiian Kingdom exists as a state.” This would be misleading because it would appear that the Order was conclusive by merely leaving the word “presently” out of the Order. In State of Hawai‘i v. Lorenzo, the appellate court explained its use of the word “presently,” because “it was incumbent on Defendant to present evidence supporting his claim,” and that “Lorenzo has presented no factual (or legal) basis for concluding that the Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.”

In other words, the reason why the Lorenzo Court used “presently” was because Lorenzo did not “present evidence supporting his claim.” The Lorenzo court did not foreclose the question but rather provided, what it saw at the time, instruction for the Court to arrive at the conclusion that the Hawaiian Kingdom continues to exist as a State based on evidence provided to the Court. The Lorenzo Court placed the burden of proof that the Hawaiian Kingdom continues to exist on the Defendant. The Lorenzo Court, however, acknowledged that its “rationale is open to question in light of international law.”

Because international law provides for the presumption of the continuity of the State despite the overthrow of its government by another State, it shifts the burden of proof. According to Judge Crawford, “there is a presumption that the State continues to exist, with its rights and obligations despite a period in which there no effective government.” He also stated that “belligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” In other words, the Hawaiian Kingdom would continue to exist as a State despite the American military overthrow of the Hawaiian government on January 17, 1893.

According to Professor Craven, “If one were to speak about a presumption of continuity, one would suppose that an obligation would lie upon the party opposing that continuity to establish the facts substantiating its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by reference to a valid demonstration of legal title, or sovereignty, on the part of the United States, absent of which the presumption remains.”

The “presumption of continuity of a State” is similar to the “presumption of innocence.” A person on trial does not have the burden to prove their innocence. Rather, the prosecutor has to prove beyond all reasonable doubt the guilt of the person. Without proof of guilt, the person remains innocent. In international law, a recognized sovereign and independent State does not have the burden to prove it continues be a State after being belligerently occupied for over a century. Rather, the opposing State has to prove with evidence under international law that the State was extinguished. Absent the evidence, the State continues to exist.

Therefore, the Lorenzo Court’s placing of the burden on the Defendant is misplaced because international law places the burden “on the party opposing that continuity to establish the facts substantiating its rebuttal.” The only fact the Defendant would need to provide is evidence that the United States recognized the Hawaiian Kingdom as a State, which would be the 1849 Treaty of Friendship, Commerce and Navigation. Judge Kobayashi provided no rebuttable evidence of facts in its Orders that the Hawaiian Kingdom was extinguished in accordance with international law. She just stated, without evidence, there is no 800-pound gorilla, but yet she’s in dialogue with that gorilla.

In these proceedings, the Hawaiian Kingdom provided factual evidence of the Hawaiian Kingdom’s continued existence where the Permanent Court Arbitration, in Larsen v. Hawaiian Kingdom (1999-2001), acknowledged the continued existence of the Hawaiian Kingdom as a State.

Additional factual basis of “continuity” includes the delivering of an oral statement to the United Nations Human Rights Council on March 22, 2022, by Dr. David Keanu Sai, as Minister of Foreign Affairs ad interim. Dr. Sai was accredited by the Office of the United Nations High Commissioner for Human Rights for his statement. Dr. Sai stated to the Human Rights Council, in Geneva, Switzerland:

The International Association of Democratic Lawyers and the American Association of Jurists call the attention of the Council to human rights violations in the Hawaiian Islands. My name is Dr. David Keanu Sai, and I am the Minister of Foreign Affairs ad interim for the Hawaiian Kingdom. I also served as lead agent for the Hawaiian Kingdom at the Permanent Court of Arbitration from 1999-2001 where the Court acknowledged the continued existence of my country as a sovereign and independent State.

The Hawaiian Kingdom was invaded by the United States on 16 January 1893, which began its century long occupation to serve its military interests. Currently, there are 118 military sites throughout the islands and the city of Honolulu serves as the headquarters for the Indo-Pacific Combatant Command.

For the past century, the United States has and continues to commit the war crime of usurpation of sovereignty, under customary international law, by imposing its municipal laws over Hawaiian territory, which has denied Hawaiian subjects their right of internal self-determination by prohibiting them to freely access their own laws and administrative policies, which has led to the violations of their human rights, starting with the right to health, education and to choose their political leadership.

The United States, who is a member State of the Human Rights Council, did not object to Dr. Sai’s statement that “the United States has and continues to commit the war crime of usurpation of sovereignty, under customary international law, by imposing its municipal laws over Hawaiian territory,” thereby, acquiescing to the Hawaiian Kingdom’s continued existence as a State and the United States commission of the war crime of usurpation of sovereignty.

According to the International Court of Justice, in the Case concerning the Temple of Preah Vihear (Cambodia v. Thailand), acquiescence “concerns a consent tacitly conveyed by a State, unilaterally, through silence or inaction, in circumstance such that a response expressing disagreement or objection in relation to the conduct of another State would be called for.” According to Professor MacGibbon, under international law, the “function of acquiescence may be equated with that of consent,” whereby the “primary purpose of acquiescence is evidential; but its value lies mainly in the fact that it serves as a form of recognition of legality and condonation of illegality and provides a criterion which is both objective and practical.”

The failure of the United States to disagree or object to the Hawaiian Kingdom being acknowledged as a State by the Permanent Court of Arbitration, and its failure to disagree or object to the statement to the Human Rights Council regarding the war crime of usurpation of sovereignty are official acts by the United States under customary international law. War crimes can only be committed in an international armed conflict between two or more States, and, therefore, the United States acquiescence are official acts that bind Judge Kobayashi. The U.S. Supreme Court, in Williams v. Suffolk Insurance Co., stated, “when the executive branch of the government, which is charged with our foreign relations assumes a fact it is conclusive on the judicial department.”

United States President John Tyler, by letter of Secretary of State John C. Calhoun on July 6, 1844, to Hawaiian officials, recognized the Hawaiian Kingdom as a sovereign and independent State. And on December 20, 1849, the United States entered into a Treaty of Friendship, Commerce and Navigation with the Hawaiian Kingdom and maintained a Legation (Embassy) in Honolulu and Consulates throughout the islands.

In its filings, the United States has not provided any rebuttable evidence, whether factual or legal, that the Hawaiian Kingdom was extinguished as a State under international law. Rather it claimed that “the United States annexed Hawaii in 1898 and Hawaii entered the union as a state in 1959.” Both the 1898 Joint Resolution of annexation and the 1959 Hawai‘i Admission Act are municipal laws and, according to the U.S. Supreme Court, in The Apollon, these laws cannot “extend beyond its territory except so far as regards its citizens. They can have no force to control the sovereignty or rights of any other nation within its own jurisdiction.”

The U.S. Supreme Court also stated, in United States v. Curtiss-Wright Export Corp., that “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.” In 1988, the U.S. Department of Justice, in a legal opinion titled, “Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea,” it stated that “we doubt that Congress has constitutional authority to assert either sovereignty over an extended territorial sea or jurisdiction over it under international law on behalf of the United States.” The Department of Justice also concluded, “It is therefore unclear which constitutional power of Congress exercised when it acquired Hawaii by joint resolution.”

Under international law, the imposition of United States municipal laws violates the territorial integrity of the Hawaiian Kingdom and would constitute the war crime of usurpation of sovereignty under international law. According to Professor Schabas, the war crime of usurpation of sovereignty is where the “perpetrator imposed or applied legislative or administrative measures of the occupying power going beyond those required by what is necessary for military purposes of the occupation.” In these proceedings, the United States’ reliance on its municipal laws is an admission of the war crime of usurpation of sovereignty.

On the topic of separation of powers, the U.S. Supreme Court, in Airports Auth. v. Citizens for Noise Abatement, explained, “the structure of our Government as conceived by the Framers of our Constitution disperses the federal power among the three branches—the Legislative, the Executive, and the Judicial—placing both substantive and procedural limitations on each. The ultimate purpose of this separation of powers is to protect the liberty and security of the governed.” Professor Merrill explains that “because every federal office must be located ‘in’ one of the three branches, each office is subject to whatever specific constitutional limitations apply to action by its branch.”

In United States v. Curtiss-Wright Export Corp., the U.S. Supreme Court stated, “the President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude, and Congress itself is powerless to invade it.” Like the Congress, the judicial branch “is powerless to invade” the executive branch. The judicial branch is the arbiter of facts and law. It is not charged with foreign relations.

Judge Kobayashi’s two Orders not only violate international law but also the American doctrine of the separation of powers between the three branches of government. The President cannot act as a judge and a judge cannot act as a President who is in charge of foreign relations. In other words, Judge Kobayashi’s two Orders declaring the Hawaiian Kingdom does not exist without providing any evidence is a violation of the separation of powers doctrine. She’s supposed to provide evidence that the executive branch, not the judicial branch, extinguished the Hawaiian Kingdom as a State under international law.

The Hawaiian Kingdom, as the 800-pound gorilla, has now placed the burden on Judge Kobayashi to show evidence of a factual or legal basis that it doesn’t exist. Under Rule 52(c) of the Federal Rules of Civil Procedure, the Court is required to write “findings of fact and conclusions of law” as to why the gorilla doesn’t exist or why the gorilla does exist. If the gorilla does exist, Judge Kobayashi will have to change the two Orders and transform the Court into an Article II Occupation Court that administers Hawaiian Kingdom law and the international law of occupation.

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.

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.”

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.