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.”
The Permanent Court of Arbitration (PCA) has recently uploaded a Case Repository of current cases and past cases that came before the international court. Listed as one of the past cases that came before the PCA was Lance Larsen v. The Hawaiian Kingdom. The international arbitration began on November 8, 1999 and ended February 5, 2001.
The PCA explicitly recognized the Hawaiian Kingdom as a State and the acting Government as its representative in arbitration proceedings instituted by a Hawaiian subject, Lance Larsen. If the Hawaiian Kingdom did not exist today as a State under international law, and there was no lawful government representing the Hawaiian Kingdom, the case would have never been accepted by the PCA. This is also recognition that the Hawaiian Kingdom was never annexed by the United States, but rather occupied since the Spanish-American War in 1898.
The international court’s explicit recognition of the continued existence of the Hawaiian Kingdom as a State under international law and the acting Government is definitive and removes all doubt of Hawai‘i legal status under international law.
The tribunal concluded in its arbitral award that in order for Lance Larsen to maintain his suit against the acting Government, which he alleged was “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 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,” he needed the participation of the United States as an indispensable third party because it was the United States that allegedly violated his rights and not the Hawaiian Kingdom. His claim was that the Hawaiian Kingdom was negligent for allowing the imposition of American laws in the Kingdom in violation of the treaties.
The arbitration tribunal was comprised of three highly respected experts in international law, and two the arbitrators, James Crawford and Christopher Greenwood were selected by the United Nations as judges on the ICJ. The United Nations selection is also recognition of the caliber of the arbitrators who served on the Tribunal in the Hawaiian arbitration.
Other international arbitration cases held at the PCA that was similar to the Hawaiian arbitration, being a dispute between a private entity and a State, include, Hulley Enterprises Limited vs. The Russian Federation (2005), Romak S.A. vs. The Republic of Uzbekistan (2006), and TCW, Inc. and Dominican Energy Holdings, L.P. vs. The Dominican Republic (2008).
The PCA was initially limited to arbitration between States, but has since evolved to include private parties against States. A dispute between private parties alone cannot access the PCA without the participation of a State. “Today the PCA provides services for the resolution of disputes involving various combinations of states, state entities, intergovernmental organizations, and private parties.” The United States was not only one of the signatory States to the 1899 Hague Convention, I, that established the international court, but it was also a party to arbitration cases at the PCA, The United States of America v. The United States of Mexico (1902), The United States of America vs. Venezuela (1909), Great Britain vs. The United States of America (1910), and The United States of America vs. The Netherlands (1925). The most recent arbitration at the PCA was The Republic of Ecuador vs. The United States of America (2011).
The PCA is only open to disputes involving international law, which is the reason why a dispute between private parties cannot access the international court. The United Nations Charter created the International Court of Justice (ICJ) in 1945 and it is housed in the Peace Palace together with the PCA. Unlike the PCA, the ICJ limits its access to disputes between States and not disputes between a private entity and the State.
The PCA was established in 1899 when States from around the world met in The Hague, Netherlands, in order to codify the laws and customs of war, which was already accepted as customary international law. It’s first treaty—Hague Convention, I, established a permanent court of arbitration to be housed at The Hague. “With the object of facilitating an immediate recourse to arbitration for international differences, which it has not been possible to settle by diplomacy, the Signatory Powers undertake to organize a permanent Court of Arbitration (Article 20).”
Lecture Series “Beyond the Headlines” Boston University Pardee School of Global Studies presents: “Hawai’i: An American State or a State Under American Occupation?”
An interview of Dr. Keanu Sai and Ph.D. candidate Lorenz Gonschor by Dr. Lynette Cruz on Issues that Matter. The subject of the interview focused on the Hawaiian Kingdom as a non-European Power in the nineteenth century and its relationship with Japan.
From September 10-12, 2015, fifteen academic scholars from around the world who were political scientists and historians came together to present papers on non-European powers at a conference/workshop held at the University of Cambridge, United Kingdom. Attendees of the conference were by invitation only and the papers presented at the conference are planned to be published in a volume with Oxford University Press.
The theme of the conference was Non-European Powers in the Age of Empire. These non-European countries included Hawai‘i, Iran, Turkey, China, Ethiopia, Japan, Korea, Thailand, and Madagascar. Dr. Keanu Sai was one of the invited academic scholars and his paper is titled “Hawaiian Neutrality: From the Crimean Conflict through the Spanish-American War.”
Many of these scholars were unaware of the history of the Hawaiian Kingdom and its “full” membership in the family of nations as a sovereign and independent state. What stood out for them was the continued existence of the Hawaiian Kingdom because it was only the government that was illegally overthrown by the United States and not the Hawaiian state, which is the international term for country. The belief that Hawai‘i lost its independence was dispelled and that its current status is a state under a prolonged American occupation since the Spanish-American War.
What was a surprise was that the Hawaiian Kingdom was the only non-European Power to have been a co-equal sovereign to European Powers throughout the 19th century. All other non-European Powers were not recognized as full sovereign states until the latter part of the 19th century and the turn of the 20th century. During this time European Powers imposed their laws within the territory of these countries under what has been termed “unequal treaties.”
Since 1858, Japan had been forced to recognize the extraterritoriality of American, British, French, Dutch and Russian law operating within Japanese territory. According to these treaties, citizens of these countries while in Japan could only be prosecuted under their country’s laws and by their country’s Consulates in Japan called “Consular Courts.” Under Article VI of the 1858 American-Japanese Treaty, it provided that “Americans committing offenses against Japanese shall be tried in American consular courts, and when guilty shall be punished according to American law.” The Hawaiian Kingdom’s 1871 treaty with Japan also had this provision, where it states under Article II that Hawaiian subjects in Japan shall enjoy “at all times the same privileges as may have been, or may hereafter be granted to the citizens or subjects of any other nation.” This was a sore point for Japanese authorities who felt Japan’s sovereignty should be fully recognized by these states.
While King Kalakaua was visiting Japan in 1881, Emperor Meiji “asked for Hawai‘i to grant full recognition to Japan and thereby create a precedent for the Western powers to follow.” Kalakaua was unable to grant the Emperor’s request, but it was done by his successor Queen Lili‘uokalani. Hawaiian recognition of Japan’s full sovereignty and repeal of the Hawaiian Kingdom’s consular jurisdiction in Japan provided in the Hawaiian-Japanese Treaty of 1871, would take place in 1893 by executive agreement through exchange of notes.
By direction of Her Majesty Queen Lili‘uokalani, R.W. Irwin, Hawaiian Minister to the Court of Japan in Tokyo sent a diplomatic note to Mutsu Munemitsu, Japanese Minister of Foreign Affairs on January 18, 1893 announcing the Hawaiian Kingdom’s abandonment of consular jurisdiction. Irwin stated:
“Her Hawaiian Majesty’s Government reposing entire confidence in the laws of Japan and the administration of justice in the Empire, and desiring to testify anew their sentiments of cordial goodwill and friendship towards the Government of His Majesty the Emperor of Japan, have resolved to abandon the jurisdiction hitherto exercised by them in Japan.
It therefore becomes my agreeable duty to announce to your Excellency, in pursuance of instructions from Her Majesty’s Government, and I now have the honour formally to announce, that the Hawaiian Government do fully, completely, and finally abandon and relinquish the jurisdiction acquired by them in respect of Hawaiian subjects and property in Japan, under the Treaty of the 19th August, 1871.
There are at present from fifteen to twenty Hawaiian subjects residing in this Empire, and in addition about twenty-five subjects of Her Majesty visit Japan annually. Any information in my possession regarding these persons, or any of them, is at all times at your Excellency’s disposal.
While this action is taken spontaneously and without condition, as a measure demanded by the situation, I permit myself to express the confident hope entertained by Her Majesty’s Government that this step will remove the chief if not the only obstacle standing in the way of the free circulation of Her Majesty’s subjects throughout the Empire, for the purposes of business and pleasure in the same manner as is permitted to foreigners in other countries where Consular jurisdiction does not prevail. But in the accomplishment of this logical result of the extinction of Consular jurisdiction, whether by the conclusion of a new Treaty or otherwise, Her Majesty’s Government are most happy to consult the convenience and pleasure of His Imperial Majesty’s Government.”
On April 10, 1894, Foreign Minister Munemitsu, responded, “The sentiments of goodwill and friendship which inspired the act of abandonment are highly appreciated by the Imperial Government, but circumstances which it is now unnecessary to recapitulate have prevented an earlier acknowledgment of you Excellency’s note.”
This dispels the commonly held belief among historians that Great Britain was the first state to abandon its extraterritorial jurisdiction in Japan under the Anglo-Japanese Treaty of Commerce and Navigation, which was signed on July 16, 1894. The action taken by the Hawaiian Kingdom did serve as “precedent for the Western powers to follow.”
Dr. Sai encourages everyone to read his paper “Hawaiian Neutrality: From the Crimean Conflict through the Spanish-American War” that was presented at Cambridge, which covers Hawai‘i’s political history from the celebrated King Kamehameha I to the current state of affairs today, and the remedy to ultimately bring the prolonged occupation to an end.
Royal Canadian Mounted Police Responds to War Crime Complaint by Protector of Mauna Kea and Japanese Consulate Receives War Crime Complaint against TMT
HONOLULU (Sep. 11, 2015) – In a letter dated July 7, 2015, attorney Dexter Kaiama was notified by the Superintendent of the Sensitive and International Investigations National Division of the Royal Canadian Mounted Police (RCMP) that their Department of Justice’s War Crime Program had reviewed the evidence of war crimes alleged to have been committed on the summit of Mauna Kea. The RCMP concluded, at that time, it did not have “jurisdiction over the issues brought forward based on the requirements of section 8 of the Crimes Against Humanity and War Crimes act.”
Section 8 states the RCMP would have jurisdiction if the alleged perpetrator “was a Canadian citizen or was employed by Canada in a civilian or military capacity [section 8(a)(i)];” or if the alleged victim “was a Canadian citizen [section 8(a)(iii)].” The July 7, 2015 RCMP response did not refuse jurisdiction on grounds that there is no armed conflict and that Hawai‘i is a part of the United States.
On May 13, 2015, Kaho’okahi Kanuha, who was accompanied by Dr. Keanu Sai, Ph.D., filed a war crime complaint with the RCMP in Ottawa, Canada. On behalf of his client, Attorney Kaiama drafted the complaint for Mr. Kanuha and Dr. Sai provided a report on the status of Hawai‘i as an independent and sovereign state under international law that has been under an illegal and prolonged occupation by the United States. The war crimes that were reported were destruction of property, unlawful confinement, and denial of a fair and regular trial.
On August 12, 2015, Mr. Kaiama submitted a response to the RCMP, where he stated, “While my client is not a Canadian citizen, the alleged perpetrators of war crimes committed against him stemming from the unlawful arrest and confinement of his person on the summit of Mauna Kea does fulfill the requirement under section 8(a)(i). This section provides that persons outside of Canada may be prosecuted for war crimes if they were ‘employed by Canada in a civilian or military capacity.’”
The August 12, 2015 response provided that “TMT hired the Honolulu based law firm Watanabe Ing LLP to represent them in Hawai‘i and is primarily responsible for the war crimes committed against my client by orchestrating and ordering the unlawful detainment carried out by State of Hawai‘i enforcement officers,” and that “James Douglas Ing is the primary attorney in charge of TMT matters on the summit of Mauna Kea.” The submitted response also identified others employed in a civilian capacity by the Canadian component of TMT, “the CEO and President of Goodfellow Bros, Inc., J. Stephen Goodfellow, and Chad Goodfellow, respectively, who was hired as the primary contractor for construction of the telescope on the summit of Mauna Kea. Other civilians included are the employees of Goodfellow, Inc.”
In his response, Mr. Kaiama also identified additional perpetrators meeting the requirements of Section 8 of the Canadian Crimes Against Humanity and War Crimes Act including those “individuals operating in a military capacity, and by direction of Douglas Ing in a civilian capacity, include, State of Hawai‘i armed force Governor David Ige, Attorney General Doug Chin, Deputy Attorney Generals Linda Chow and Julie China, and Director of the Department of Land and Natural Resources Suzanne D. Case, Hawai‘i County Police Officer Captain Richard Sherlock, Lieutenant DareenHorio, Supervising Officer Nelson Acob, Reporting Officer James Pacheco, and arresting Officer Kelsey K. Kobayashi.”
On August 24, 2015 Martin Bedard, Inspector in Charge of the War Crimes Section in Ottowa, confirmed receipt of Mr. Kaiama’s August 12, 2015 response “containing additional allegations” and that the Section is would be (“are and will be”) considering the additional allegations contained in said response.
Attorney Kaiama, representing Mr. Kanuha (and additional presently unnamed victims), also filed a complaint with the Japanese Consul General in Honolulu, Hawai’i on August 14, 2015 to report the violation of international laws in the unlawful detention and deprivation his clients rights to a fair and regular trial, and the destruction of public property during occupation carried out by TMT International Observatory, LLC, (TMTIO) upon the summit of Mauna a Wakea.
Through the filed Complaint, the Japanese Consul General was apprised of: (a) the comprehensive analysis of the international armed conflicts between the Hawaiian Kingdom and the United States from January 16, 1893 to April 1, 1893 and the current armed conflict since August 12, 1898; (b) Japan’s partnership in TMTIO through the Natural Institutes of Natural Sciences (NINS); (c) the destruction of public property during occupation upon the summit of Mauna a Wakea, beginning in 1970, and including Japan’s Subaru Telescope built in 1999; and (d) identification of the war crimes committed, and perpetrators of the reported violations.
The Complaint filed with the Japanese Consul General invoked Japan’s obligations to investigate the reported violations and initiate criminal proceedings under Article IV of the 1871 Hawaiian-Japanese Treaty which provides:
“It is hereby stipulated that the Hawaiian Government and its subjects, upon terms and conditions, will be allowed free and equal participation in all privileges, immunities and advantages that may have been or may hereafter be granted by His Majesty the Tenno of Japan, to the Government, citizens or subjects of any other nation.”
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Dr. Mera Lee-Penehira, from the University of Auckland, has this week lodged a criminal complaint with Attorney General Christopher Finlayson QC, under the International Crimes and International Criminal Court Act 2000.
“The U.S. unilaterally seized the islands of Hawai‘i back in 1898 for military interests during the Spanish-American war, and have remained there as illegal occupiers ever since. This is about acknowledging and righting the wrongdoings of the U.S. in Hawai’i”, says Dr. Lee-Penehira.
A recent visit from leading political scientist Dr. Keanu Sai of the University of Hawai’i who met with tribal and political leaders, has brought to the fore the illegal occupation of Hawai’i, and the implications for New Zealand. He states that, “In 2001, the Permanent Court of Arbitration at The Hague, 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. By virtue of the 1851 treaty between the Hawaiian Kingdom and the British Crown, as well as our connection as peoples of the Pacific, New Zealand citizens have a special relationship with Hawai‘i.”
Dr. Lee-Penehira, has been to Hawai’i on a number of occasions in recent years, and last month visited Mauna a Wakea, a sacred site at the centre of contention between the U.S. government and Native Hawaiians. The planned construction of the world’s largest telescope, the TMT project, on this sacred site, has received much media attention of late and many New Zealand citizens are concerned about this issue.
Marama Davidson, member of Maori women’s political advocacy group Te Whare Pora Hou states, “Protectors of Mauna a Wakea have been occupying the sacred ancestral mountain on the island of Hawai‘i for over 120 days now, to prevent the construction of this telescope. We stand in solidarity with the protectors in efforts to stop this destruction. This is a direct attack on the physical, spiritual and cultural integrity of the maunga, and the wellbeing of both the environment and people.”
In lodging the complaint Dr Lee-Penehira is invoking her right as a New Zealand citizen under the 1851 treaty, “We need to challenge everything the U.S. government does in Hawai‘i, because on the basis of law, it is quite simply wrong. The historical documentation is clear, that the Hawaiian Kingdom continues to exist under an illegal occupation by the U.S. and that the laws of occupation must be complied with. As a victim of war crimes committed in Hawai‘i, this cannot be allowed to continue to take place with impunity.”
According to the complaint, Dr. Lee-Penehira states that she has suffered grave harm and calls upon the New Zealand Attorney General to “initiate an immediate investigation into the private organization called the State of Hawai‘i for the war crime of pillaging under the guise of taxation in accordance with 11(2)(b) of the International Crimes and International Criminal Court Act 2000 and fraud. The so-called taxes were collected under what the State of Hawai‘i calls a General Excise Tax (GET) at 4.712% while on the island of O‘ahu that includes a 0.546% “County Tax” and 4.166% on the other islands, and a Transient Accommodations Tax, also called a Hotel Room Tax, at 9.25%. The County Tax is deposited with the City and County of Honolulu, Island of O‘ahu.”
She also states in her complaint, “When a car is rented at the State of Hawai‘i’s Honolulu International Airport, there is a State of Hawai‘i GET at 4.712%, a Highway Surcharge at $3.00 a day, a Vehicle Registration fee between $0.35 and $1.45 a day, and an Airport Concession Recovery Tax at 11.1%. Except for the GET, the revenues collected for rental cars are deposited with the State of Hawai‘i Department of Transportation—Highway and Airport Divisions. Although the GET is levied on businesses for doing business in Hawai‘i, the State of Hawai‘i allows these businesses to pass those extra taxes on to the consumer of all goods in Hawai‘i.”
The alleged war crimes at the centre of the complaint include both unlawful taxation by the State of Hawai‘i, and the destruction of property by the State of Hawai’i for allowing the construction of telescopes on the summit of Mauna a Wakea.
Ms. Davidson supports the complaint saying, “These allegations of war crimes committed in Hawai‘i are very serious, and if true will have a profound effect on all New Zealanders as well as the Trans Pacific Partnership negotiations that are ironically taking place this week in Hawai‘i. It is now incumbent on New Zealand authorities to either prove that the Hawaiian Kingdom does not exist under international law and that there is no Hawaiian-British treaty, or initiate a criminal investigation into the allegations of war crimes committed against a New Zealand citizen.”
The first friendship treaty the Hawaiian Kingdom entered into as a sovereign state was with Denmark on October 19, 1846. Other friendship treaties followed with Hamburg, succeeded by Germany, (January 8, 1848), the United States of America (December 20, 1849), the United Kingdom (July 10, 1851), Bremen, succeeded by Germany, (March 27, 1854), Sweden-Norway, now separate states, (April 5, 1855), France (September 8, 1858), Belgium (October 4, 1862), Netherlands (October 16, 1862), Luxembourg (October 16, 1862), Italy (July 22, 1863), Spain (October 9, 1863), Switzerland (July 20, 1864), Russia (June 19, 1869), Japan (August 19, 1871), Austria-Hungary, now separate states (June 18, 1875), Germany (March 25, 1879), and Portugal (May 5, 1882). Neither the Hawaiian Kingdom nor any of these states expressed any intention to terminate any of the treaties according to the provisions provided in each of the treaties, and therefore remain in full force and effect.
These treaties have the “most favored nation” clause, and secure the equal application of commercial trade in the Hawaiian Islands to all treaty partners. These treaties have all been violated by the United States through the unlawful imposition of the Merchant Marine Act (1920)—also known as the Jones Act—that has secured commercial control over the seas to United States citizens, which has consequently placed the citizens of these foreign states at a commercial disadvantage (46 U.S.C. §883-1). The clause is designed
“to establish the principle of equality of international treatment. The test of whether the principle is violated by the concession of advantages to a particular nation is not the form in which such concession is made, but the condition on which it is granted; whether it is given for a price, or whether this price is in the nature of a substantial equivalent, and not a mere evasion (Black’s Law Dictionary 1013 (6th ed. 1990).”
Treaties “are legally binding, because there exists a customary rule of International Law that treaties are binding. The binding effect of that rule rests in the last resort on the fundamental assumption, which is neither consensual nor necessarily legal, of the objectively binding force of International Law (L. Oppenheim, International Law, vol. 1, 794 (7th ed. 1948),” states Oppenheim. “No distinction should be made between more or less important parts of a treaty as regards its execution. Whatever may be the importance or the insignificance of a part of a treaty, it must be executed in good faith, for the binding force of a treaty covers all its parts and stipulations equally (Id., 829).”
In a cogent and thoughtful decision the Swiss Federal Criminal Court Objections Chamber recently issued two important and profound statements as to the sovereignty of the Hawaiian Kingdom. Although the Court held that, the filing was untimely and no longer appropriate in a Swiss Federal Criminal Court. The case has now been moved to the Criminal Law section of the Swiss Federal Supreme Court in Lausanne. These procedural issues do not diminish the two critical statements the Court made about the status of Hawai‘i.
First, the Court stated that the 1864 Treaty between Switzerland and the Hawaiian Kingdom was never canceled—and is still in effect. Second, the Court identified certain officials and former officials of the State of Hawaii by name as possibly subject to a continuing investigation as to alleged war crimes. Although the Court ruled the filing was untimely, the Court did provide a means by which the plaintiffs could obtain review in the Swiss Supreme Court.
Professor Williamson B.C. Chang, a law professor at the University of Hawai‘i at Manoa, called this statement by the Swiss Court “an extraordinary assessment of the status of Hawaii with enormous ramifications. It confirms my own views that the United States never acquired the Hawaiian Islands, either in 1898 or thereafter.”
Professor Chang also stated, “Indeed, the fact that the statement was made, given that there was no need to make such a statement, renders the statement even more significant. If Hawai‘i had been annexed then all treaties of the Hawaiian Kingdom would have become void.”
The U.S. congressional joint resolution that purportedly annexed Hawai‘i in 1898 during the Spanish-American War stated, “The existing treaties of the Hawaiian Islands with foreign nations shall forthwith cease and determine, being replaced by such treaties as may exist, or as may be hereafter concluded, between the United States and such foreign nations.” Obviously the Swiss Court was not swayed by the language of the joint resolution of Congress, and therefore concluded that the Hawaiian-Swiss Treaty was not cancelled.
To Professor Chang, the statement of the Swiss Court directly contradicts the official position of the United States as currently maintained by the United States Department of State, Office of the Historian, on its official website, “The McKinley Administration also used the [Spanish-American] war as a pretext to annex the independent state of Hawaii… At McKinley’s request, a joint resolution of Congress made Hawaii a U.S. territory on August 12, 1898.”
Second, and equally significant, the Objections Chamber of the Swiss Federal Criminal Court specifically named present and former State of Hawai‘i officials as well others who are defendants and alleged war criminals. Again, the Swiss Criminal Court dismissed on the grounds of untimeliness, nevertheless, the Court held that plaintiffs had a pathway to bring their claims before the Swiss Supreme Court. Thus, the actions of the Defendants will continue to be examined before that Court.
The naming of names is significant because the Court had no need to identify these individuals. Those named are the former Chief Executive Officer of Deustch Bank, Joseph Ackerman, the former Governor of the State of Hawai‘i, Neil Abercrombie, current Lieutenant Governor Shan Tsutsui, former Director of the Department of Taxation, Frederik Pablo, and former deputy Director, Joshua Wisch.
The Swiss criminal action began when the Swiss Attorney General received a war crimes report by Dr. Keanu Sai, as the attorney-in-fact for Mr. Kale Gumapac, a Hawaiian subject, who was a victim of war crimes in December 2014. Dr. Sai also represents another war crimes victim who is a Swiss citizen residing in the Hawaiian Islands, but his name is kept confidential for safety concerns. Prosecutor Andreas Muller from the Attorney General’s Competence Centre for Terrorism and Competence Centre for International Criminal Law initiated a war crimes investigation.
Prosecutor Muller abandoned the investigation on February 3, 2015, and Dr. Sai objected to the Swiss Federal Criminal Court Objections Chamber seeking an order to direct the Prosecutor to complete the investigation and proceed with the prosecution.
The Objections Chamber concluded they were prevented from hearing the objection because of a previous court case that stated if a private courier, such as FedEx, was used to submit documents to a court it would only recognize the date it was received and not the date it was postage marked. There was a 10-day period to object after Dr. Sai received the Prosecutor’s decision and report on March 23, 2015. The deadline to object was April 2, 2015. Although, the objection was sent via FedEx on April 1, 2015, it did not arrive at the Objections Chamber until April 8.
“When I received the Prosecutor’s report I needed to get it translated into the English language in order to draft the objection,” said Dr. Sai. “Once I got the translation, I wrote the objection, which was 12 pages, and then I proceeded to get it translated into German before sending it off. After the translation was completed on April 1, I immediately went to FedEx.” At the request of Dr. Sai, the Clerk of the Federal Criminal Court forwarded the case to the Federal Supreme Court in Lausanne.
In a letter (German) (translation to English) to Dr. Sai from the Criminal Law Section of the Federal Supreme Court dated May 21, 2015, the Clerk of the Court stated the Supreme Court will accept the case if Dr. Sai would “explicitly state by June 5, 2015 that the Federal Supreme Court should accept and treat [his] submission as an objection in criminal matters.” As directed, Dr. Sai drafted a letter dated May 24, 2015 (German) (translation to English), which stated “I hereby explicitly state that the Federal Supreme Court should accept and treat my submission in the above case as an objection in criminal matters pursuant to the provisions of the Federal Supreme Court Act (BGG) of June 17, 2005.” Dr. Sai’s letter arrived in Switzerland by a personal courier and mailed to the Supreme Court through the Swiss postal service on May 28, 2015, which met the deadline of June 5.
Canada is a constitutional monarchy. The British Monarch is the Head of State and the Canadian Prime Minister is the Head of Government. Canada received its dominion status in 1867 under the Constitution Act enacted by the British Parliament. This Act provided self-government for Canada while the British Monarch remained the Head of State represented by a Governor General. Today the Constitution Act of 1867 forms the basis of Canada’s constitution.
Since 1867, Canada’s treaties with other countries required the countersignature of a British Minister. The first treaty Canada entered into on its own was with the United States in 1923—the Halibut Treaty. Prior treaties that Great Britain entered into with other countries before 1923 applied to Canada if it mentioned the treaties application to British dominions as well as to the United Kingdom.
When the Hawaiian Kingdom entered into a Treaty of Friendship, Commerce and Navigation in 1851 with the British, the treaty applied to the United Kingdom and the British Monarch’s dominions, which included Canada. The Hawaiian-British Treaty would also apply to other countries that achieved dominion status, which today is referred to as realm status, include Antigua and Barbuda, Australia, The Bahamas, Barbados, Grenada, Jamaica, New Zealand, Papua New Guinea, St. Christopher and Nevis, St. Lucia, St. Vincent and the Grenadines, Solomon Islands, and Tuvalu. All realm countries recognized the British Monarch as the Head of State.
The Hawaiian-British Treaty is permanent and has no provision for cancellation. Other treaties the Hawaiian Kingdom entered into that have no provisions to terminate and are permanently binding include Denmark (1846) and Japan (1871).
In 1985, Canada established the Commission of Inquiry on War Criminals “to conduct such investigations regarding alleged [Nazi] war criminals in Canada, including whether any such persons are now resident in Canada and when and how they obtained entry to Canada.” The Commission made recommendations on how to bring war criminals to justice proposed amendments to laws to accomplish this.
By virtue of these recommendations, specialized war crime sections were established in the Department Justice, the Royal Canadian Mounted Police (RCMP), and the Citizenship and Immigration Canada. In 1998, the War Crimes Program was established as an interdepartmental initiative between these three departments. In 2003, the Canada Border Services Agency joined the three.
On December 18, 1998, Canada signed the International Criminal Court’s (ICC) Rome Statute that reinforced Canada’s commitment to enact further legislation to criminalize war crimes, crimes against humanity, and genocide. In 2000, Canada enacted the Crimes Against Humanity and War Crimes Act that authorized Canadian authorities to prosecute war crimes committed on Canadian territory and outside of Canada. If the war crimes are committed on Canadian territory, the jurisdiction is territorial. If the war crimes are committed abroad by a Canadian the jurisdiction is active personality principle, and if the victim of the war crime is Canadian the jurisdiction is passive personality principle. If the war crimes committed abroad have no direct connection to Canada, the jurisdiction is universal principle.
The ICC exercises universal jurisdiction with the primary responsibility to prosecute is with countries that signed the Rome Statute, but for cases that will be prosecuted by the ICC, Canada amended its Mutual Legal Assistance in Criminal Matters Act (1985) in 2015 to allow Canadian authorities to assist the ICC Prosecutor with their own investigation of persons and the gathering evidence in Canada.
The RCMP National Division’s Sensitive and International Investigations unit is responsible criminal investigations for war crimes. The Sensitive and International Investigations “is tasked with investigating the activities of suspected war criminals who have sought safe haven in Canada. These investigations require strong collaboration between the RCMP and our national and international partners, the ability to adapt to various foreign legal systems while respecting their customs and laws, and bringing these convicted war criminals to justice by denaturalizing, deporting or extraditing them.”
This unit works together with the Department of Justice’s Crimes Against Humanity and War Crimes Section. War crimes can be reported to both agencies and both are headquartered in Ottawa, capital city of Canada.
FOR IMMEDIATE RELEASE
April 19, 2015
Swiss Federal Criminal Court to Hear Objection on War Crimes Committed by United States Officials and Deutsche Bank in the Hawaiian Islands
HONOLULU—A Swiss citizen and a Hawaiian subject from the Hawaiian Kingdom filed an objection with the Swiss Federal Criminal Court Objections Chamber in Bellinzona, Canton of Ticino, on April 1, 2015. The identity of the Hawaiian subject is Mr. Kale Kepekaio Gumapac, but the identity of the Swiss citizen is being kept confidential for safety reasons. Both appellants are residents of the Hawaiian Islands and are represented in these proceedings by Dr. David Keanu Sai through powers of attorney. Dr. Sai is a political scientist whose research and expertise centers on the continuity of the Hawaiian Kingdom as an independent and sovereign State.
“During the Spanish-American War in 1898, the United States has belligerently occupied the Hawaiian Kingdom being a neutral State,” says Dr. Sai. “As a result of the prolonged occupation of a neutral country, the United States is responsible for the commission of war crimes that have been committed for over a century on a monumental scale. The war crimes committed against the two appellants include pillaging, unfair trial, unlawful confinement and unlawful appropriation of property.”
The initial war crime complaint was filed with the Swiss Attorney General’s office in Bern on December 22, 2014 by Gumapac alleging war crimes have been committed against himself by Deutsche Bank for the pillaging of his home, whose Chief Executive Officer at the time was a Swiss citizen and resident of Zurich. Deutsche Bank’s pillaging of Gumapac’s home was carried out by State of Hawai‘i Deputy Sheriff Lieutenant Patrick Kawai, which also led to his unlawful arrest.
Click here to download war crimes report. The exhibits for Mr. Kale Gumapac identified in the war crimes report can be downloaded here: Exhibit #1, Exhibit #2, Exhibit #3, Exhibit #4, Exhibit #5, Exhibit #6, Exhibit #7, Exhibit #8, Exhibit #9-A, Exhibit #9-B, Exhibit #9-C.
The second complaint was filed with the Attorney General’s office on January 22, 2015 by the unnamed Swiss citizen alleging the war crimes of pillaging and unlawful appropriation of property under the guise of taxation that were committed against himself between 2006 and 2013 by the self-declared State of Hawai‘i and the United States Internal Revenue Service (IRS).
“The State of Hawai‘i has no lawful authority in the Hawaiian Islands because Congress created it by a Congressional law in 1959, which has no effect outside of U.S. territory.” said Dr. Sai. “It is also a direct successor of the provisional government of 1893 and the so-called Republic of Hawai‘i of 1894, both of which the United States determined were self-declared. So a self-declared entity is not a government that can lawfully tax people, and the IRS can only tax their own citizens who reside in a foreign country. It can’t tax the entire population of a foreign country. This is a war crime.”
The complaints were given criminal case number SV.15.0101-MUA and assigned to Federal Prosecutor Andreas Muller of the Center of Competence of International Crimes, an agency of the Office of the Attorney General that is empowered to prosecute war crimes.
Prosecutor Muller officially notified Dr. Sai in a letter dated February 3, 2015 that he completed his criminal investigation into the alleged war crimes and concluded there are no war crimes being committed in the Hawaiian Islands. Dr. Sai received the report (German) (English translation) on March 23, 2015. Both the Prosecutor’s notification and the report were in the German language. Prosecutor Muller stated to Dr. Sai that his decision could be appealed to the Swiss Criminal Court Objections Chamber within 10 days after receiving the report.
In his report, Prosecutor Muller specifically cites the 1898 Congressional joint resolution of annexation as the means by which the Hawaiian Islands was annexed. He also stated that there was an agreement of annexation between the United States and the self-declared Republic of Hawai‘i. Prosecutor Muller further stated that Congress created the State of Hawai‘i in 1959 and that Switzerland officially recognizes that Hawai‘i is a part of the United States and maintains a Consulate in Honolulu.
However, according to Dr. Sai, there is a clear contradiction in the Prosecutor’s report. In the beginning of the report, Prosecutor Muller stated that Hawai‘i was officially recognized as being a part of the United States, but later he stated that the 1864 treaty between the Hawaiian Kingdom and the Swiss Confederation was not cancelled. Article 13 of the treaty states that in order to terminate the treaty, either the Swiss government or the Hawaiian Kingdom government must notify the other in writing of its intention to terminate. There is no record that the Swiss government or the Hawaiian government provided any notice of termination.
“A treaty is a contract between States and in this case it is a contract between the Swiss State and the Hawaiian State,” said Dr. Sai. “A treaty is not a contract between governments because governments represent States and are not the States themselves. Should a government be illegally overthrown, as is the case for Hawai‘i, the contracting State, being the Hawaiian Kingdom, would still exist and therefore the treaty would still be in effect. When the Japanese and German governments were overthrown at the end of World War II, their treaties with other countries were not cancelled.”
Another way a treaty could be canceled under international law is where one of the contracting States ceded its sovereignty to another State by a treaty. This absorption of one of the contracting States into another State would have effectively replaced the former treaty with the treaty the absorbing State would have with the other contracting State. In other words, if the Hawaiian Kingdom were annexed by the United States under international law, then the United States-Swiss treaty would have replaced and therefore cancelled the Hawaiian-Swiss treaty. This is what occurred to the 1848 Hawaiian-Hamburg treaty and the 1854 Hawaiian-Bremen treaty when both of these States joined the German Empire in 1871. Both treaties were cancelled when Germany entered into a treaty with the Hawaiian Kingdom in 1879.
Dr. Sai said, “If the Prosecutor was convinced that a domestic law of the American Congress could annex a foreign State and terminate its existence under international law, he wouldn’t conclude in an official report that the Hawaiian-Swiss Treaty was not cancelled. He would have stated that the Hawaiian-Swiss treaty was cancelled and replaced by the United States-Swiss treaty. That was clearly not the case.”
Dr. Sai, who is a political scientist that specializes in international relations, said that it is proper diplomatic etiquette that governments must presume that other countries would not violate international law. This presumption, though, is rebuttable if there is convincing evidence that the country has violated international law. “So the Swiss government probably approached the American Embassy in the city of Bern and asked the United States how did it annex the Hawaiian Islands,” stated Dr. Sai. “And when the American government said they passed a law in Congress to annex Hawai‘i, the Swiss government would have to take it at face value and assume that under American law, Congress has the ability to annex a foreign country.”
Since Dr. Sai received the official report by the prosecutor on March 23, Swiss law would allow the objection to be mailed from Hawai‘i no later than April 2. FedEx received the appeal in Honolulu on April 1 from Dr. Sai, and on April 8 it was delivered to the Swiss Criminal Court Objections Chamber in the city of Bellinzona, Canton of Ticino. Dr. Sai received confirmation that the court is in receipt of the objection and the case has been assigned reference no. BB.2015.36-37 (German) (English translation).
In a letter (German) (English translation) dated April 9, 2015, the Clerk of the Federal Criminal Court notified the Federal Prosecutor that the court is in receipt of the objection and has requested the Prosecutor to furnish the Federal Criminal Court right away with the records in this matter with an index of the records.
“The appeal to the Swiss Criminal Court Objections Chamber is the perfect forum to provide the rebuttable evidence that the United States has violated international law,” said Dr. Sai. “Our appeal centers on four points: first, United States Congressional laws are not a source of international law and therefore cannot annex a foreign country; second, there is no agreement between the United States and the self-declared Republic of Hawai‘i; third, Switzerland acknowledges the continuity of the Hawaiian Kingdom as contracting State in the Hawaiian Swiss-Treaty; and, fourth, the United States cannot deny the existence of the Hawaiian Kingdom because a criminal court of the so-called State of Hawai‘i recognized the existence of the Hawaiian Kingdom by a ruling on evidence on March 5, 2015.”
CONTACT: Dr. David Keanu Sai
Phone: (808) 383-6100
Under international law, war does not only apply to belligerent States, but also applies to neutral States whose territories have been invaded and occupied by one of the belligerents in its course of war with the other belligerent. According to Oppenheim’s International Law (7th ed.), p. 685, “hostilities against a neutral [State] on the part of either belligerent are acts of war, and not mere violations of neutrality. Thus the German attack on Belgium in 1914, to enable German troops to march through Belgian territory and attack France, created war between Germany and Belgium.” While Belgium was occupied by Germany from 1914-1918, Belgium was, for the purposes of international law, also at war with Germany during the occupation.
By the 1839 Treaty of London, Great Britain, Austria, France, the German Confederation, Russia, and the Netherlands recognized Belgium as an independent and perpetual neutral State. Under international law, a neutral State cannot wage war but is limited to the defense of its territory. During World War I, Belgium’s neutrality was violated by Germany in its war against France.
When “neutral territory becomes the region and theatre of war, and is militarily occupied by a belligerent, the occupant does not possess such a wide range of rights with regard to the occupied country and its inhabitants as he possesses in occupied enemy territory,” states Oppenheim, p. 241. “He can indeed resort to all measures which are necessary for the safety of his forces; but he cannot exact contributions or appropriate cash, funds, and realizable securities which are the property of the neutral State.”
Like Belgium, the Hawaiian Kingdom was a neutral State explicitly recognized in its treaties with Spain in 1863 and the Kingdom of Sweden and Norway in 1852. Article 26 of the Hawaiian-Spanish treaty, states “All vessels bearing the flag of Spain, shall, in time of war, receive every possible protection, short of active hostility, within the ports and waters of the Hawaiian Islands, and Her Majesty the Queen of Spain engages to respect, in time of war the neutrality of the Hawaiian Islands.”
On April 25, 1898, war broke out between the United States and Spain, and fighting between the armed forces of both belligerents took place in the Spanish possessions of Guam and the Philippines in the Pacific Ocean, and Cuba and Puerto Rico in the Caribbean Ocean. The next month, United States naval convoys entered Honolulu harbor to re-coal their ships on their way to fighting in the Philippines. This action taken by the United States naval forces was a direct violation of Hawai‘i’s neutrality under the Hawaiian-Spanish Treaty, which prompted a formal protest by the Spanish Vice-Consul H. Renjes June 1, 1898.
The Spanish protest declared, “In my capacity as Vice Consul for Spain, I have the honor today to enter a formal protest with the Hawaiian Government against the constant violations of Neutrality in this harbor, while actual war exists between Spain and the United States of America.” The last battle was fought on August 13, 1898 when U.S. forces captured the city of Manila, and the war officially ended on December 10, 1898 when a treaty was signed in Paris.
As a result of United States intervention in 1893 and the subsequent creation of a puppet government, calling itself the provisional government and later renaming itself the Republic of Hawai‘i, the United States took complete advantage of its own creation in the islands during the Spanish-American War.
“Puppet governments are organs of the occupant and, as such form a part of his legal order,” explains Krystyna Marek in Identity and Continuity of States in Public International Law (2nd ed.), p. 114. “The agreements concluded by them with the occupant are not genuine international agreements, however correct in form; failing a genuine contracting party, such agreements are merely decrees of the occupant disguised as agreements which the occupant in fact concludes with himself. Their measures and laws are those of the occupant.”
According T.A. Bailey, whose article “The United States and Hawai‘i During the Spanish-American War” was published in The American Historical Review (1931), “The position of the United States was all the more reprehensible in that she was compelling a weak nation to violate international law that had to a large degree been formulated by her own stand on the Alabama claims. Furthermore, in line with the precedent established by the Geneva award, Hawaii would be liable for every cent of damage caused by her dereliction as a neutral, and for the United States to force her into this position was cowardly and ungrateful. At the end of the war, Spain or cooperating power would doubtless occupy Hawaii, indefinitely if not permanently, to insure payment of damages, with the consequent jeopardizing of the defenses of the Pacific Coast.”
Bailey’s reference to the Alabama claims was an international arbitration case between the United States and Great Britain in the city Geneva that centered on Britain’s violation of neutrality by building war ships for the Confederate States in America’s Civil War. One of these ships was called the C.S.S. Alabama. The arbitral tribunal concluded the British violated the international law of neutrality and had to compensate the United States $15.5 million dollars for all damages inflicted by the ships built in Great Britain.
“Although the [Hague] conventions expressly apply only to the occupation of hostile or enemy territory, …it is usually held that they apply also to the forceful occupation of neutral territory,” says Gerhard von Glahn in The Occupation of Enemy Territory, p. 12. “Thus provisions of the applicable articles should have been mandatory in their application to the German occupation of Denmark, Norway, and other countries neutral at the time of their invasion by the forces of the Third Reich.”
In 1893, President Grover Cleveland reported to the Congress ““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 that time was undisputed and was both the de facto and the de jure government.”
Failing to carry out the executive agreement of December 18, 1893 to reinstate the Hawaiian Kingdom government negotiated between U.S. Ambassador Albert Willis and Queen Lili‘uokalani, the United States allowed their puppet government calling itself the provisional government to remain in existence. On July 4, 1894, the name was changed to the Republic of Hawai‘i, then renamed to the Territory of Hawai‘i on April 30, 1900, and then the State of Hawai‘i on March 18, 1959.
Since the admitted “act of war” was committed by the United States on January 16, 1893, the Hawaiian Kingdom has been in a state of war with the United States now going on for 121 years. This is the longest state of war between States in the history of international law since the Thirty Years’ War that established international law as we know it today through the 1648 Treaty of Westphalia.
Despite the prolonged and illegal occupation of the Hawaiian Kingdom, international law provides for its continued existence, especially in light of its legal status as a neutral State, and the failure of the United States to comply with international law, the international laws of occupation and international humanitarian laws. The Proclamation of the acting Council of Regency provides the legal foundation for the United States’ compliance to international law in light of 121 years of violation.
Dr. Keanu Sai, political scientist, made a formal request today to Assistant Secretary for Insular Affairs at the Dept. of Interior, Esther Kia‘aina, to provide evidence that the United States extinguished Hawai‘i’s sovereignty under international law. In his email to Kia‘aina that included the formal letter, Dr. Sai stated:
Please find attached a formal request for the U.S. Department of Interior to provide evidence that Hawai‘i’s sovereignty was extinguished under international law from the Department of Justice’s Office of Legal Counsel. According to Title 28 U.S.C. §510, the Office of Legal Counsel has been delegated by the Attorney General the responsibility for preparing formal opinions to the various Executive branch agencies, which includes the Department of Interior. Dr. Kamana‘opono Crabbe, CEO of the Office of Hawaiian Affairs attempted to do this with the Secretary of State, but it was “politically” derailed.
Under international law, the Hawaiian Kingdom as it was in the 19th century is presumed to continue to exist today with all its laws intact, unless the United States can show that it unequivocally extinguished Hawai‘i’s sovereignty under international law. In other words, the burden is not on Hawaiians to prove the Hawaiian Kingdom “does” exist, but rather that burden is shifted onto the United States, through its Department of Interior, to prove that the Hawaiian Kingdom “doesn’t” exist.
Now with the recent Department of Interior hearings, the continuity of the Hawaiian Kingdom as a sovereign State was clearly displayed by the testimony of individuals, both professional and private, that have been formally and informally educated on the matter. If the United States Federal government can show clear and undeniable evidence to not only Hawai‘i’s people, but to the entire world, that its has extinguished the Hawaiian Kingdom as provided for by international law, then the prospect of federal recognition can move forward without a any problems, except for maybe U.S. law such as Rice v. Cayetano. But if it cannot, then we will deal with 121 years of violating Hawai‘i’s sovereignty and the international laws of occupation and the issues will now be restitution and reparations and the movement toward de-occupation.
This is a very serious matter with profound legal, political and economic ramifications for not only the residents of the Hawaiian Islands, which includes resident aliens, but also for the international community at large whereby countries and their nationals have been affected as well, especially when these countries continue to have treaties with Hawai‘i.
[Correction: The letter was resent to Assistant Secretary of Insular Affairs, Esther Kia‘aina with the corrected date. The original letter was mistakenly dated August 5, 2013 when it should have been August 5, 2014.]
Click here to download the original letter in PDF with hotlinks.
The only way that the Department of Interior can have authority to hold hearings in the territory of the Hawaiian Kingdom, being a foreign State, is to first show that the Department of Justice, through its Office of Legal Counsel, has answered Dr. Crabbe’s question “Does the Hawaiian Kingdom, as a sovereign independent State, continue to exist as a subject of international law?” in the negative. Until then, the Department of Interior is violating the basic principle of international law, whereby governments have the obligation and duty to not intervene in the internal affairs of another sovereign independent State, which is precisely what the United States did in 1893.
There is a common misunderstanding that the United States federal government can enter the territory of other countries unfettered. Governments, which are the physical machineries of sovereign States, have omnipotent authority within their own territorial limits, and range from constitutional governments to totalitarian regimes. But when governments deal with other foreign countries their actions are regulated by international law, which includes treaties (agreements) and customary international law.
The United States federal government was established in 1789 with three branches of government called the Executive (President), Legislative (Congress) and Judicial (Supreme Court) branches. Of the three branches, the President alone is responsible for the enforcement of the laws that Congress has enacted as well as international laws that bind the United States abroad. To carry out this duty, the President has departments and agencies, which serve as the administrative arm of the Presidency.
In 1789 there were only three departments under the President: the Department of Foreign Affairs, which later in the same year was changed to the Department of State; the Department of the Treasury; and the Department of War, which was later changed to the Department of Defense in 1949. Today there exists twelve additional departments: Department of Justice (est. 1870), Department of Agriculture (est. 1862), Department of Commerce (est. 1903), Department of Labor (est. 1913), Department of Health and Human Services (est. 1953), Department of Housing and Urban Development (est. 1965), Department of Transportation (est. 1966), Department of Energy (est. 1977), Department of Education (est. 1980), Department of Veteran Affairs (est. 1989), Department of Homeland Security (est. 2002), and the Department of Interior (est. 1849).
Each department has a specific role and function under the President’s authority and duty to enforce the law. Only the President represents the United States in foreign affairs—neither the Congress nor the Supreme Court has that authority. According to the United States Supreme Court, U.S. v. Curtiss-Wright Export Corp. (1935), there exists the “plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress.” To carry out this function, the President has the Department of State and the Department of Defense. All other departments are limited in authority to the territory and jurisdiction of the United States.
The Department of State is “responsible for international relations of the United States, equivalent to the foreign ministry of other countries,” through diplomats that include Ambassadors and Consuls. The Department of Defense is responsible for “coordinating and supervising all agencies and functions of the government concerned directly with national security and the United States Armed Forces.” Within the Executive branch, the Department of State is the lead advisor to the President on foreign policies, and the Department of Defense carries out these foreign policies if international law authorizes it, e.g. war or status of forces agreements.
As a foreign State, the Hawaiian Kingdom has dealt with the Department of State and the Department of Defense, but has never dealt with any of the other Departments because the Hawaiian Kingdom was never part of the United States, especially the Department of Interior. The Department of Interior is responsible for the domestic affairs of the United States that included “the construction of the national capital’s water system, the colonization of freed slaves in Haiti, exploration of western wilderness, oversight of the District of Columbia jail, regulation of territorial governments, management of hospitals and universities, management of public parks, and the basic responsibilities for Indians, public lands, patents, and pensions,” which now includes Native Hawaiians.
With the recent attention surrounding the Department of the Interior’s public meetings throughout the Islands, focus is now on centering on “authority” and not “policies.” This is attributed to the education of the masses as to the legal and political history of Hawai‘i, which has drawn attention to the Office of Hawaiian Affairs CEO Dr. Kamana‘opono Crabbe’s letter to the Secretary of State John Kerry requesting clarity as to the continued existence of the Hawaiian Kingdom as an independent and sovereign State under international law. Under the international law principle presumption of continuity, since the Hawaiian Kingdom was an independent State, which the Department of Interior and the Department of Justice admit in their joint report in 2000, international law provides that an established State is presumed to still exist until proven extinguished under international law.
According to Professor Crawford, The Creation of States in International Law (2006), p. 34, who is not only the leading authority on States, but was also the presiding arbitrator in Larsen v. Hawaiian Kingdom, “There is a strong presumption that the State continues to exist, with its rights and obligations, despite revolutionary changes in government, or despite a period in which there is no, or no effective, government. Belligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” So despite the illegal overthrow of the Hawaiian Kingdom government by the United States on January 17, 1893, and the prolonged occupation since the Spanish-American War in 1898, the Hawaiian Kingdom, as a State, would continue to exist even if there was no Hawaiian government. The presumption of continuity places the burden on the United States to show under international law, and not United States law, that the Hawaiian Kingdom does not continue to exist. A congressional joint resolution of annexation is not evidence that the Hawaiian Kingdom ceases to exist an independent State under international law, but rather is the evidence of the violation of international law and Hawaiian sovereignty.
In like fashion to the Department of Interior’s public meetings, a Congressional committee called the Hawaiian Commission for the creation of a territorial government was holding public meetings in Honolulu from August through September 1898. The Commission was headed by Senator Morgan and established on July 9, 1898 after President McKinley signed the joint resolution of annexation on July 7, 1898. The Hawaiian Patriotic League who was responsible for securing 21,269 signatures against annexation submitted a memorial, which was also printed in two Honolulu newspapers, one in the Hawaiian language and the other in English. The memorial stated:
WHEREAS: By memorial the people of Hawai‘i have protested against the consummation of an invasion of their political rights, and have fervently appealed to the President, the Congress and the People of the United States, to refrain from further participation in the wrongful annexation of Hawai‘i; and
WHEREAS: The Declaration of American Independence expresses that Governments derive their just powers from the consent of the governed:
THEREFORE, BE IT RESOLVED: That the representatives of a large and influential body of native Hawaiians, we solemnly pray that the constitutional government of the 16th day of January, A.D. 1893, be restored, under the protection of the United States of America.
The memorial is still relevant today and relies on the executive agreement entered into between President Cleveland and Queen Lili‘uokalani in 1893 that bound the President and his successors in office to restore the Hawaiian Kingdom government as it stood before the invasion of United States troops on January 16, 1893, and thereafter the Queen or her successors in office would grant amnesty to the insurgents and their supporters. This Agreement of Restoration is a treaty under international law and remains binding on the office of the President today.
“If they can get you asking the wrong questions, they don’t have to worry about answers.” – Thomas Pynchon, Gravity’s Rainbow