On May 25, 2022, on behalf of the United States, President Joseph Biden, Vice-President Kamala Harris, Commissioner of the Internal Revenue Service, Commander of the Indo-Pacific Command Admiral Aquilino, Senate Majority Leader Charles Schumer and Speaker of the House Nancy Pelosi, the Department of Justice in Washington, D.C., filed a Response to the Hawaiian Kingdom’s Motion to Dismiss for Forum Non Conveniens.

A motion to dismiss for forum non conveniens is filed with an appellate court if the proper court of appeals is in a foreign country. In its motion the Hawaiian Kingdom is asking the Ninth Circuit Court to dismiss the appeal because the Clerk of the District Court of Hawai‘i transmitted the appeal to the Ninth Circuit in error.

When the Hawaiian Kingdom filed its Notice of Appeal with the Clerk of the United States District Court for the District of Hawai‘i on April 24, 2022, it specifically stated that the Hawaiian Kingdom was appealing to a competent Court of Appeals to be hereafter established by the United States as an Occupying Power within the territory of the Hawaiian Kingdom. It was the Clerk that transferred the Notice of Appeal to the Ninth Circuit Court of Appeals in San Francisco, and not the Hawaiian Kingdom.

The international laws of occupation allows the Occupying Power, in this case the United States, to establish an Article II Occupation Court in the Hawaiian Kingdom’s territory as the occupying State to administer the laws of the occupied State and the international laws of occupation. The United States established an Article II Occupation Court in Germany in 1945 until 1955 when the occupation of Germany ended.

After receiving the appeal, the Clerk of the Ninth Circuit issued an Order for the Hawaiian Kingdom to file within 21 days a motion “for voluntary dismissal of the appeal or show cause why it should not be dismissed for lack of jurisdiction.” Federal appeals can only be made after the case is over at the trial court level. District Court Judge Leslie Kobayashi did not terminate the proceedings in Hawaiian Kingdom v. Biden.

The Hawaiian Kingdom filed its Motion to Dismiss for Forum Non Conveniens, but in doing so asked the Ninth Circuit Court to comply with the Lorenzo principle, which is federal common law, and compel the United States to show evidence that the Hawaiian Kingdom does not exist as a matter of international law. The Hawaiian Kingdom is “show[ing] cause why it should not be dismissed for lack of jurisdiction.” The Lorenzo principle has a direct nexus to a 1994 appeal that came before the State of Hawai‘i Intermediate Court of Appeals called State of Hawai‘i v. Lorenzo. The Appellate Court stated:

Lorenzo appeals, arguing that the lower court erred in denying his pretrial motion (Motion) to dismiss the indictment. The essence of the Motion is that the [Ha­waiian Kingdom] (Kingdom) was recognized as an independent sovereign nation by the United States in numerous bilateral treaties; the Kingdom was illegally overthrown in 1893 with the assistance of the United States; the Kingdom still exists as a sovereign nation; he is a citizen of the Kingdom; therefore, the courts of the State of Hawai‘i have no jurisdiction over him. Lorenzo makes the same argument on appeal. For the reasons set forth below, we conclude that the lower court correctly denied the Motion.

Lorenzo became a precedent case on the subject of the Hawaiian Kingdom’s existence as a State in State of Hawai‘i courts, and is known in the United States District Court in Hawai‘i, since 2002, as the Lorenzo principle. The Lorenzo principle placed the burden of proof that the Hawaiian Kingdom continues to exist as a State on the defendants. In 2014, the Hawai‘i Supreme Court clarified this evidentiary burden. In State of Hawai‘i v. Armitage, the Supreme Court stated:

Lorenzo held that, for jurisdictional purposes, should a defendant demonstrate a factual or legal basis that the [Hawaiian Kingdom] “exists as a state in accordance with recognized attributes of a state’s foreign nature[,]” and that he or she is a citizen of that sovereign state, a defendant may be able to argue that the courts of the State of Hawai‘i lack jurisdiction over him or her.

There have been seventeen federal cases that applied the Lorenzo principle, two of which came before the Ninth Circuit Court. However, a careful read of the Lorenzo decision reveals a stunning shift of who has the burden of proof and what needs to be proven. The Appellate Court in Lorenzo stated that “the court’s rationale is open to question in light of international law.” Since the determination of whether a State exists is a matter of international law, what does international law say about the existence of a State?

A rule of international law is that an established State is presumed to still exist despite its government being military overthrown. This is why the German State continued to exist after the Nazi government was militarily overthrown in 1945, and why the Japanese State continued to exist despite the military overthrow of the Japanese government, both of which ended the Second World War. In other words, the Hawaiian Kingdom, as an established State under international law, like Germany and Japan, is presumed to continue to exist despite the illegal overthrow of its government on January 17, 1893.

Because the Hawaiian Kingdom continues to exist, the burden was not on Lorenzo as the defendant to prove the Hawaiian Kingdom “exists,” but rather the burden is placed on the prosecutor to prove that the Hawaiian Kingdom “does not exist.” The State of Hawai‘i courts that applied the Lorenzo principle in multiple cases applied it wrong.

Also, the seventeen federal cases that applied the Lorenzo principle also had it wrong, and like the State of Hawai‘i courts are rendered unlawful because of international law, so is the United States District Court for the District of Hawai‘i. This means that all court decisions after 1893, whether the provisional government, the Republic of Hawai‘i, the Territory of Hawai‘i, the State of Hawai‘i, and since 1900, the federal courts, are void because the courts were never lawful to begin with.

Further implications of international law renders the State of Hawai‘i itself as unlawful. On this note, the Appellate Court in Lorenzo also stated that the “illegal overthrow leaves open the question whether the present governance system should be recognized” because a “State has an obligation not to recognize or treat as a state an entity that has attained the qualifications for statehood as a result of a threat or use of armed force.”

The State of Hawai‘i is a direct successor to the provisional government that was established through the “use of armed force.” In 1893, President Grover Cleveland concluded that the provisional government, which is a predecessor of the State of Hawai‘i, “owes its existence to an armed invasion by the United States.” Secretary of State Walter Gresham stated that “the Government of Hawaii surrendered its authority under a threat of war, until such time only as the Government of the United States, upon the facts being presented to it, should reinstate the constitutional sovereign.” In other words, the trial court that prosecuted Lorenzo and the Appellate Court that heard Lorenzo’s appeal were never lawful in the first place.

The Hawaiian Kingdom’s appeal that was forwarded to the Ninth Circuit by the Clerk of the District Court in Hawai‘i raised a very interesting twist regarding the Lorenzo principle and the legal standing of the Ninth Circuit. By making the Lorenzo principle into federal common law, which means judge made law at the federal level, the Ninth Circuit is bound by the Lorenzo principle, especially when the Ninth Circuit applied the Lorenzo principle in two cases that it heard on appeal.

Unlike the Hawai‘i District Court, which is currently unlawful until it transforms itself into an Article II Occupation Court, the Ninth Circuit is lawful, as an Article III Court, because it sits in the territory of the United States. As such, the Hawaiian Kingdom can invoke the Lorenzo principle that the Hawaiian Kingdom is presumed to continue to exist unless the United States, who is a defendant-appellee in this case, can provide evidence that the Hawaiian Kingdom does not exist. Without providing a treaty of peace whereby the Hawaiian Kingdom ceded itself to the United States, the presumption of continuity remains. There is no treaty except for the unlawful imposition of American municipal laws since 1898.

Yesterday, June 2, 2022, the Hawaiian Kingdom filed its Reply to the United States response to its motion to dismiss that reiterated the Lorenzo principle and why the federal court in Hawai‘i is unlawful. And that since the Ninth Circuit is not unlawful because it sits within the territory of the United States in the city of San Francisco, it should apply the Lorenzo principle in this unique case that has now come before it.

In its Reply, the Hawaiian Kingdom has petitioned the Ninth Circuit for a writ of mandamus to compel Judge Leslie Kobayashi to transform the United States District Court in Hawai‘i into an Article II Occupation Court pursuant to the Lorenzo principle and international law. Under the All Writs Act, federal circuit courts of appeal are authorized to compel an inferior court within its circuit to do something that the law says must be done. In this case, international law requires that only Article II Occupation Courts that administer the laws of the occupied State and the law of occupation can be established in the territory of the Hawaiian Kingdom.

With the filings of the Hawaiian Kingdom’s Motion to Dismiss for Forum Non Conveniens, the United States’ Response, and the Hawaiian Kingdom’s Reply, the issue is now in the hands of the Ninth Circuit for a decision.

Yesterday, Russian forces invaded Ukraine from the north, east and south. Russian President Vladimir Putin justified the invasion as a response to the North Atlantic Treaty Organization’s (NATO) coming too close to Russia’s borders. According to the U.S. State Department, NATO “was created in 1949 by the United States, Canada, and several Western European nations to provide collective security against the Soviet Union.” After the fall of the Soviet Union in 1991, Russia has taken the mantle of the former Soviet Union and maintains a very large military force and nuclear weapons. Former Soviet States to the west of Russia became members of NATO with the exception of Ukraine, Belarus and Georgia.

Russia views the encroachment of NATO to its western border as a security threat. In a speech after meeting with French President Emmanuel Macron on February 7, 2022, Putin stated “Of course NATO and Russia potentials are incompatible” and warns of nuclear war if Ukraine joins NATO.

Russia’s aggression against Ukraine is reminiscent of the United States aggression against the Hawaiian Kingdom during the Spanish-American War. As Russia claims NATO is a national security threat to its existence, the United States claimed Japan was an immediate threat of invasion of the United States west coast.

After the United States admitted unlawful overthrow of the Hawaiian Government, Mahan wrote a letter to the Editor of the New York Times where he advocated seizing the Hawaiian Islands. On January 31, 1893, he wrote that the Hawaiian Islands, “with their geographical and military importance, [is] unrivalled by that of any other position in the North Pacific.” Mahan used the Hawaiian situation to bolster his argument of building a large naval fleet. He warned that a maritime power could well seize the Hawaiian Islands, and that the United States should take that first step. He stated that to hold the Hawaiian Islands, “whether in the supposed case or in war with a European state, implies a great extension of our naval power. Are we ready to undertake this?” Mahan would have to wait four years to find an ally in President William McKinley’s Department of the Navy, Assistant Secretary of the Navy, Theodore Roosevelt.

Roosevelt sent a private and confidential letter, on May 3, 1897, to Mahan. He wrote, “I need not tell you that as regards Hawaii I take your views absolutely, as indeed I do on foreign policy generally. If I had my way we would annex those islands tomorrow.”  Moreover, Roosevelt told Mahan that Cleveland’s handling of the Hawaiian situation was “a colossal crime, and we should be guilty of aiding him after the fact if we do not reverse what he did.” Roosevelt also assured Mahan “that Secretary [of the Navy] Long shares [their] views. He believes we should take the islands, and I have just been preparing some memoranda for him to use at the Cabinet meeting tomorrow.”

In a follow up letter to Mahan, on June 9, 1897, Roosevelt wrote that he “urged immediate action by the President as regards Hawaii. Entirely between ourselves, I believe he will act very shortly. If we take Hawaii now, we shall avoid trouble with Japan.” Eight days later, on June 16, 1897, the McKinley administration signed a treaty of “incorporation” with its American puppet—the Republic of Hawai‘i, in Washington, D.C. On the following day, Queen Lili‘uokalani submitted a formal protest to the U.S. State Department stating, “I declare such a treaty to be an act of wrong toward the native and part-native people of Hawaii, an invasion of the rights of the ruling chiefs, in violation of international rights both toward my people and toward friendly nations with whom they have made treaties, the perpetuation of the fraud whereby the constitutional government was overthrown, and, finally, an act of gross injustice to me.”

While the so-called treaty failed to get the required 2/3’s vote from the Senate for ratification, a joint resolution of annexation, being an internal law of the United States, was submitted to the House Committee on Foreign Affairs on May 4, 1897, in its place, and pushed through both Houses of the Congress. President McKinley signed it into law on July 7, 1898. In a secret session of the Senate on May 31, 1898, whose transcripts were not opened to the public until 1969, Senator Henry Cabot Lodge acknowledged that the McKinley “Administration was compelled to violate the neutrality of those islands, that protests from foreign representatives had already been received, and complications with other powers were threatened, that the annexation or some action in regard to those islands had become a military necessity.”

The United States aggression against the Hawaiian Kingdom, a sovereign and independent State like Ukraine, gives rise to the proverbial idiom, “who’s calling the kettle black.”

Putin’s warning draws the Hawaiian Kingdom, being a neutral State, into a theater of war should the United States enter the Russia-Ukrainian conflict. According to the U.S. Department of Defense’s Base Structure Report for 2012, the U.S. military has 118 military sites that span 230,929 acres of the Hawaiian Islands, which is 6% of the total acreage of Hawaiian territory. As the headquarters for the U.S. Indo-Pacific Command, being the largest unified combatant command in the world, the Hawaiian Islands are targeted for nuclear strikes by Russia, China and North Korea.

The United States prolonged and illegal occupation of the Hawaiian Kingdom is a direct violation of the Hawaiian Kingdom’s neutrality, which is specifically stated in its treaties with Germany, Spain and Sweden and Norway. Article XV of its treaty with Spain provides “Her Majesty the Queen of Spain engages to respect, in time of war the neutrality of the Hawaiian Islands, and to use her good offices with all the other powers having treaties with the same, to induce them to adopt the same policy toward the said Islands.”

Article 1 of the 1907 Hague Convention, V, provides “The territory of neutral Powers is inviolable,” and Article 2 provides “Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power.” The United States’ violation of these Articles have placed the residents of the Hawaiian Islands into harms way when Japan attacked U.S. military installations on O‘ahu on December 7, 1941, and continue to place Hawai‘i’s residents in harms way in the event of a nuclear attack.

In 1990, the United States Federal Emergency Management Agency (FEMA) published Risks and Hazards: A State by State Guide. One of the subjects included nuclear targets and identified 6 nuclear targets on the island of O‘ahu that coincided with the locations of military posts of the U.S. Army, Navy, Air Force and Marines. Also included as a target is the Headquarters of the U.S. Pacific Command at Camp Smith that lies in the back of a residential area in Halawa. According to FEMA, the entire Island of O‘ahu would be obliterated if a nuclear attack were to take place with few survivors and total destruction of buildings.

Americanization has desensitized Hawai‘i’s population and has made the presence of the U.S. military in the islands normal. Americanization has also erased the memory of the U.S. invasion in 1893 and portrayed the military presence as protecting the islands from an aggressor country intent on invasion, when in fact the Hawaiian Islands were seized in 1898 to serve as a defense to protect the United States west coast from invasion.

After the defeat of the Spanish Pacific Squadron in the Philippines, U.S. Congressman Francis Newlands (D-Nevada), submitted House Resolution 259 annexing the Hawaiian Islands (also known as the Newlands Resolution), to the House Committee on Foreign Affairs on May 4, 1898.

Six days later, hearings were held on the Newlands Resolution, and U.S. Naval Captain Alfred Mahan’s testimony explained the military significance of the Hawaiian Islands to the United States:

“It is obvious that if we do not hold the islands ourselves we cannot expect the neutrals in the war to prevent the other belligerent from occupying them; nor can the inhabitants themselves prevent such occupation. The commercial value is not great enough to provoke neutral interposition. In short, in war we should need a larger Navy to defend the Pacific coast, because we should have not only to defend our own coast, but to prevent, by naval force, an enemy from occupying the islands; whereas, if we preoccupied them, fortifications could preserve them to us. In my opinion it is not practicable for any trans-Pacific country to invade our Pacific coast without occupying Hawai‘i as a base.”

The Hawaiian Islands was and continues to be the outpost to protect the United States and their presence in the Hawaiian Islands is in violation of international law and the laws of occupation.

On December 16, 2021, United States Magistrate Judge Rom Trader issued an order allowing the United States to file their Response Memorandum to the Hawaiian Kingdom’s Motion for Judicial Notice of Civil Law regarding the action taken by the International Bureau of the Permanent Court of Arbitration acknowledging the Hawaiian Kingdom as a non-Contracting State to the 1907 Convention on the Pacific Settlement of International Disputes from December 16, 2021 to January 14, 2022. The Hawaiian Kingdom will need to file their Reply in support of their Motion for Judicial Notice by January 28, 2022.

The United States will also be filing a Motion to Dismiss the complaint on the same day their Response is due. The Hawaiian Kingdom is scheduled to file their Opposition to the Motion Dismiss on the same day they will be filing their Reply in support of their Motion for Judicial Notice. The United States will then file their Reply in support of their Motion to Dismiss by February 11, 2022.

Judge Trader’s order confirmed a Stipulation Agreement entered into between Dexter Ka‘iama, Attorney General for the Hawaiian Kingdom, and Michael J. Gerardi, Trial Attorney, U.S. Department of Justice. The Stipulation Agreement stated:

In light of the Court’s decision to convert Plaintiff’s request for judicial notice into a motion, the impending deadlines for responding to the complaint and the Rule 16 conference, and the forthcoming federal holidays of Christmas and New Year’s Day, good cause exists to modify the current deadlines. Resolution of the Plaintiff’s pending motion and of Defendants’ motion to dismiss may obviate the need for a Rule 16 conference. Defendants further state that they need additional time to consult with representatives of multiple government agencies, as well as supervisory officials within the Department of Justice, to prepare the necessary filing. Moreover, many federal officials are likely to be unavailable during the holiday season due to preplanned leave.

Gerardi disclosed to Attorney General Ka‘iama that the basis for their Motion to Dismiss would argue that federal courts have already determined that the Hawaiian Kingdom does not exist and, therefore, it presents a political question that would require presiding Judge Leslie Kobayashi to dismiss the case. The political question doctrine applies only to Article III Courts, which are federal courts within the territory of the United States. It does not apply to federal courts established outside of the United States, which are called Article II Courts.

The doctrine prevents the federal courts from determining the question of sovereignty over territory because that determination is committed to the political branches of the federal government. If there is a question of sovereignty over Native American tribal lands the political branch to determine that question in the affirmative would be the legislative branch—the Congress by virtue of federal recognition. If the question of sovereignty concerns a country outside of the United States it would be the executive branch, headed by the President, recognizing a territory as an “independent and sovereign State.”

It would appear that Gerardi is not aware that President Tyler on July 6, 1844 explicitly recognized the Hawaiian Kingdom as an independent State by letter from Secretary of State John C. Calhoun to the Hawaiian Commission comprised of Timoteo Ha‘alilio and William Richards. While in the Washington, D.C., the Hawaiian Commission sent a letter dated December 14, 1842, to Secretary of State Daniel Webster requesting that the United States recognize the Hawaiian Kingdom as a “sovereign and independent State.”

On December 19th, Secretary of State Webster responded by stating that President Tyler is “willing to declare, as the sense of the Government of the United States, that the Government of the Sandwich Islands [Hawaiian Islands] ought to be respected; that no power ought either to take possession of the islands as a conquest, or for the purpose of colonization, and that not power ought to seek for any undue control over the existing Government, or any exclusive privileges or preferences in matters of commerce.” He further stated, “the President does not see any present necessity for the negotiation of a formal treaty, or the appointment or reception of diplomatic characters.” The use of the term “ought” is not conclusive as “shall.”

His his message to the House of Representatives on December 31, 1842, President Tyler stated that the United States “is content with its independent existence,” but did not explicitly recognize the Hawaiian Kingdom as a “sovereign and independent State” as required by customary international law. President Tyler did not declare the United States’ recognition of Hawaiian independence, which prompted to the Hawaiian Commission to travel to Europe to seek explicit recognition from Great Britain and France.

On November 28, 1843, the Hawaiian Commission was able to secure formal recognition of the Hawaiian Kingdom as a “sovereign and independent State” from Great Britain and France by a formal joint proclamation. While in Washington, D.C., after returning from Europe, the Hawaiian Commission sent another letter to Secretary of State Calhoun, who succeeded Webster, on July 1, 1844, inquiring whether the United States considered its “various acts in relation to the Sandwich Islands as a full and perfect recognition of independence.”

Secretary of State Calhoun responded to the Hawaiian Commission on July 6, 1844. He wrote that the appointment of a United States Commissioner to the Hawaiian Islands was “regarded by the President as a full recognition on the part of the United States, of the Independence of the Hawaiian Government.” A Treaty of Friendship, Commerce and Navigation between the Hawaiian Kingdom and the United States was signed in Washington, D.C., on December 20, 1849.

There is no political question for the United States to raise in its Motion to Dismiss because the United States, by its President, formally recognized the Hawaiian Kingdom as a sovereign and independent State. On December 18, 1893, President Grover Cleveland acknowledged the United States’ overthrow of the government of the Hawaiian Kingdom was an act of war and unlawful. The overthrow of the Government of an independent State does not equate to the overthrow of the State itself and its existence. The State would still exist and the situation would be called “belligerent occupation.”

This is precisely what occurred when the Allied Powers occupied Germany from 1945-1955 after the Nazi government of Germany was militarily overthrown. According Professor Ian Brownlie:

Thus after the defeat of Nazi Germany in the Second World War the four major Allied powers assumed supreme power in Germany. The legal competence of the German state [its independence and sovereignty] did not, however, disappear. What occurred is akin to legal representation or agency of necessity. The German state continued to exist, and, indeed, the legal basis of the occupation depended on its continued existence.

After reviewing the Hawaiian Kingdom’s Request for Judicial Notice regarding Civil Law on the “Juridical Fact” of the Hawaiian State and the Consequential “Juridical Act” by the Permanent Court of Arbitration, District Court Judge Leslie Kobayashi issued a Minute Order today setting dates for additional filings. Judge Kobayashi will be considering the Request for Judicial Notice as a Non Hearing Motion.

The Order stated that Defendants have until December 21, 2021 to file a Response Memorandum to the Hawaiian Kingdom’s Request for Judicial Notice of Civil Law. The Plaintiff, if it chooses, will need to file a Reply Memorandum by January 4, 2022. After the parties file their submissions, the “Court to issue Order.”

At the center of the federal lawsuit is the court’s jurisdiction, which is its authority to preside over the case. Without proper jurisdiction or authority, the Court cannot make any decision regarding the Hawaiian Kingdom’s allegations in its Amended Complaint, or even any substantive issues raised by the defendants through motions or statements of interest. In its Amended Complaint, the Hawaiian Kingdom explained:

3. While this court is operating within the territory of the HAWAIIAN KINGDOM and not within the territory of Defendant UNITED STATES OF AMERICA, its jurisdiction is found as a de facto Article II Court. According to Professor Bederman:

What, then, is distinctive about a court established under Article II of the Constitution? First, executive tribunals are established without an act of Congress or any other form of legislative concurrence. Congressional intent concerning the status of a presidential court is irrelevant because no congressional approval is needed. The fact that the President alone can create an executive court places it outside the scope of Article III of the Constitution, which demands that Congress shall establish courts inferior to the Supreme Court. Second, the executive courts are created pursuant only to the power and authority granted to the President in Article II of the Constitution. In practice, the only presidential power that would call for the creation of a court is that arising from his responsibility as Commander in Chief of the armed services and his subsequent war-making authority.

4. The authority for this Court to assume jurisdiction as a de facto Article II Court is fully elucidated in the Amicus Curiae brief previously lodged in these proceedings by virtue of the Motion for Leave to File Amicus Curiae Brief on July 30, 2021 [ECF 45] by the International Association of Democratic Lawyers (IADL), the National Lawyers Guild (NLG), and the Water Protector Legal Collective (WPLC). The Amicus brief is instructional for the Court to transition to a de facto Article II Court.

5. An Article II Court was established in Germany after hostilities ceased in 1945 during the Second World War. After the surrender, western Germany came under belligerent occupation by the United States, France and Great Britain. The military occupation officially came to an end on May 5, 1955, with the entry into force of peace treaties called the Bonn Conventions between the Federal Republic of Germany and the three Occupying States. During the occupation, these Article II Courts had jurisdiction “over all persons in the occupied territory,” except for Allied armed forces, their dependents, and civilian officials, for “[a]ll offenses against the laws and usages of war[,] […] [a]ll offenses under any proclamation, law, ordinance, notice or order issued by or under the authority of the Military Government or of the Allied Forces, [and] [a]ll offenses under the laws of the occupied territory or any part thereof.”

6. Like the Article II Court in Germany, this Court has Jurisdiction as a de facto Article II Court because this action arises under international humanitarian law—law of armed conflict, which include the 1907 Hague Convention, IV (1907 Hague Regulations), the 1907 Hague Convention, V, the 1949 Geneva Convention, IV (1949 Fourth Geneva Convention), and Hawaiian Kingdom law. Article 43 of the 1907 Hague Regulations states:

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

7. The Court is authorized to award the requested declaratory and injunctive relief as a de facto Article II Court because it is situated within the territory of the HAWAIIAN KINGDOM that has been under a prolonged belligerent occupation by the United States of America since January 17, 1893.

On August 17, 2021, the International Association of Democratic Lawyers (IADL), the National Lawyers Guild (NLG) and the Water Protector Legal Collective (WPLC) filed a motion for permission to file an amicus curiae brief with the U.S. District Court for the District of Hawai‘i in support of the Hawaiian Kingdom’s complaint against U.S. President Biden and others for violations of international law, the commission of war crimes, and human rights violations in its prolonged occupation of the Hawaiian Kingdom. The motion was filed after the Hawaiian Kingdom filed its Amended Complaint on August 11, 2021.

An amicus curiae is “one (such as a professional person or organization) that is not a party to a particular litigation but that is permitted by the court to advise it in respect to some matter of law that directly affects the case in question.” The amicus brief was attached to the motion for the court to consider. In its request for permission, the IADL-NLG-WPLC stated:

1. The nongovernmental organizations whose views are represented in this brief have expertise in public international law, international human rights, humanitarian law, and norms regarding statehood, sovereignty, and self-determination.

2. Movants submit this brief to ensure a proper understanding and application of the international law and historical precedent relevant to this case regarding Article II occupation courts. The amici are additionally human rights organizations that have an interest in ensuring an informed interpretation of international human rights law in domestic jurisprudence.

On September 30, 2021, Federal Magistrate Rom Trader issued an Order granting permission for the IADL-NLG-WPLC to file their amicus brief that supports the Hawaiian Kingdom’s claim that the Court must transform itself into an Article II Court. By granting permission, the Court will not only utilize the amicus brief to assist in its decision regarding its transformation into an Article II Court, but it also acknowledges the merit of the IADL-NLG-WPLC’s argument. If it were a frivolous argument, the Court would not have granted permission to file the brief because granting permission is at the discretion of the Court. The Court was able to issue this Order without having resolved its jurisdiction, because the brief addresses jurisdiction for the Court to consider when it transforms itself into an Article II Occupation Court.

The IADL-NLG-WPLC filed their amicus brief on October 6, 2021 and opened with:

The purpose of this brief is to bring to the Court’s attention customary international law norms and judicial precedent regarding Article II occupation courts that bear on the long-standing belligerent occupation of the Hawaiian Kingdom by the United States at issue in this case.

In assessing the legality of the US occupation of Hawai‘i, the Court should be cognizant of customary international law and international human rights treaties that are incorporated into domestic law by virtue of Article VI, section 2 of the Constitution (the “Supremacy Clause”). International law, which includes treaties ratified by the United States as well as customary international law, is part of U.S. law and must be faithfully executed by the President and enforced by U.S. courts except when clearly inconsistent with the U.S. Constitution or subsequent acts of Congress.

The question here is not whether the Hawaiian Kingdom has standing in an Article III court. The question is whether this court can sit as an Article II occupation court and whether the claims of the Hawaiian Kingdom can be redressed. The answer to both questions is yes.

It is evident that the Court has accepted the arguments that it is not properly constituted because it is located in the territory of the Hawaiian Kingdom and not within the territory of the United States. Adding to the serious consequences of this case was the closure of three consulates of the Czech Republic, Finland, and India. This prompted the United States Department of Justice to file a Statement of Interest on November 5, 2021, that was asking the Court to dismiss the thirty consulates from the lawsuit because the United States claimed they had immunity.

Of the summons that were served, 12 foreign consulates failed to respond within 21 days and entries of default were entered by the Clerk of the Court.  These foreign consulates include Austria, Belgium, Chile, Germany, Japan, Luxembourg, Netherlands, Norway, Philippines, South Korea, Spain, and Thailand. Default is where a defendant has failed to defend against a claim that has been brought by the filing of a complaint. By default, these foreign consulates accept the allegation of the Hawaiian Kingdom that it is true they are unlawful. The next stage is to get a judgment of default by the judge so that they can be ordered to close. The Hawaiian Kingdom, however, is prevented from filing a motion for judgment of default because the Court is not an Article II Court that operates in territory belligerently occupied by the United States.

The Hawaiian Kingdom filed a Response to the United States Statement of Interest on November 7, 2021, stating the consulates cannot claim to be immune from the lawsuit because they were never lawful under international law to begin with because the Hawaiian Kingdom did not give its permission to have the consulates established within its territory. Rather, these consulates, as stated by the United States in its Statement of Interest, were established by the United States Department of State. In its Response, the Hawaiian Kingdom also maintained that the “Court is compelled by international and U.S. constitutional law to first transform itself from an Article III Court to a de facto Article II Court before it may lawfully assert subject-matter and personal jurisdiction to address any of the issues raised.” 

On November 29, 2021, the Hawaiian Kingdom filed a Supplemental Response to the United States’ Statement of Interest that explained the significance of the action taken by the Permanent Court of Arbitration (PCA) through the civil law tradition of understanding of the “juridical fact” of the Hawaiian Kingdom’s continued existence under the rules of customary international law, and the consequential “juridical act” by the International Bureau of the PCA that acknowledged the Hawaiian Kingdom’s existence, which authorized the PCA to form an arbitral tribunal on June 9, 2000 to resolve the dispute in Larsen v. Hawaiian Kingdom.

Here is a link to an explanation by the University of California, Berkeley Law School of the civil law tradition and the common law and why they are distinct. The United States and the Hawaiian Kingdom are common law systems where juries determine “facts” and the judges determine “laws.” In a civil law system, there are no juries and the judge determines both laws and facts, which is why there are certain facts, called “juridical facts,” that create legal consequences, as opposed to other facts that don’t create legal consequences.

The Supplemental Response also explained the consequences of the United States and the thirty countries that have their consulates named in the lawsuit of serving on the PCA’s Administrative Council and acknowledged the Hawaiian Kingdom as a non-Contracting State to the 1907 Hague Convention under customary international law, opinio juris.

Yesterday, the Hawaiian Kingdom filed a Request for Judicial Notice regarding Civil Law on the “Juridical Fact” of the Hawaiian State and the Consequential “Juridical Act” by the Permanent Court of Arbitration. Attached to the Request is a legal opinion by Professor Federico Lenzerini from the University of Siena, Italy, which is a civil law country. In its Request, the Hawaiian Kingdom stated:

Plaintiff HAWAIIAN KINGDOM hereby requests that, pursuant to FRCP Rule 44.1, the Court take judicial notice of the civil law regarding the juridical act of the Permanent Court of Arbitration (“PCA”) recognizing the juridical fact of the Statehood of the Hawaiian Kingdom and the Council of Regency as its government.

Attached to the accompanying declaration as Exhibit “1” is an expert opinion of Professor Federico Lenzerini, a professor of international law at the University of Siena, Italy. Italy’s legal system is civil law and Professor Lenzerini is very familiar with the civil law tradition providing the ontological legal basis of the juridical fact of the Statehood of the Hawaiian Kingdom and the Council of Regency as its government, and of the juridical act taken by the PCA within the “reasonings and analogies of the…civil law.” Furthermore, the PCA is situated in the Netherlands, which is a civil law country like Italy.

Plaintiff contends, in support of its amended complaint for declaratory and injunctive relief, that the Court’s transformation to an Article II Court has a direct nexus to the PCA’s juridical act of acknowledging the Hawaiian Kingdom, a juridical fact, as a non-Contracting State to the 1907 Hague Convention for the Pacific Settlement of International Disputes. Accordingly, in support of said allegations and such evidence, Plaintiff requests that the Court takes judicial notice of the relevant provisions of the civil law regarding juridical facts and juridical acts.

FRCP Rule 44.1 provides as follows:

A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination shall be treated as a ruling on a question of law.

The recent filing brings in an expert’s legal opinion on the role that civil law had when the International Bureau of the PCA acknowledged the Hawaiian Kingdom’s continued existence as a State to be a “juridical fact.” Civil law refers to the action taken by the International Bureau as a “juridical act.” The International Bureau is headed by a Secretary General who is Dutch by nationality, and that the Netherlands, like Italy, is a civil law system. In other words, the Secretary General would have been familiar with a “juridical fact” and the consequential “juridical act” in accepting the international dispute of Larsen v. Hawaiian Kingdom under the jurisdiction of the PCA. In his legal opinion, attached to the Hawaiian Kingdom Request for the Court to take judicial notice, Professor Lenzerini explains:

According to a civil law perspective, the juridical act of the International Bureau of the PCA instituting the arbitration in the case of Larsen v. Hawaiian Kingdom may be compared – mutatis mutandis – to a juridical act of a domestic judge recognizing a juridical fact (e.g. filiation) which is productive of certain legal effects arising from it according to law. Said legal effects may include, depending on applicable law, the power to stand before a court with the purpose of invoking certain rights. In the context of the Larsen arbitration, the juridical fact recognized by the PCA in favour of the Hawaiian Kingdom was its quality of State under international law. Among the legal effects produced by such a juridical fact, the entitlement of the Hawaiian Kingdom to be part of an international arbitration under the auspices of the PCA was included, since the existence of said juridical fact actually represented an indispensable condition for the Hawaiian Kingdom to be admitted in the Larsen arbitration, vis-à-vis a private entity (Lance Paul Larsen). Consequently, the International Bureau of the PCA carried out the juridical act consisting in establishing the arbitral tribunal as an effect of the recognition of the juridical fact in point. Likewise, e.g., the recognition of the juridical fact of filiation by a domestic judge, also the recognition of the Hawaiian Kingdom as a State had in principle retroactive effects, in the sense that the Hawaiian Kingdom did not acquire the condition of State per effect of the PCA’s juridical act. Rather, the Hawaiian Kingdom’s Statehood was a juridical fact that the PCA recognized as pre-existing to its juridical act.

It is expected that the Court will take judicial notice of the civil law as explained by Professor Lenzerini. By doing so, the Court would appear to be moving closer to transforming itself into an Article II Court in accordance with the international law of occupation.