There appears to be some confusion as to who needs to prove that the Hawaiian Kingdom—the 800-pound Gorilla in the room continues to exist as a sovereign and independent State despite its government being unlawfully overthrown on January 17, 1893, by the United States military and occupied for over a century.
As Professor Quincy Wright asserts “international law distinguishes between a government and the state it governs.” Professor Sheldon Cohen also states that the “state must be distinguished from the government. The state, not the government, is the major player, the legal person, in international law.” This raises an important point that the overthrow of the Hawaiian government did not affect, in the least, the continuity of the Hawaiian Kingdom as a State, being a “legal person” under international law. As Professor Ian Brownlie explains:
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.
Under international law, there exists a legal principle that when a government of an internationally recognized State is overthrown after a military invasion by another State and is occupied, the invaded State is “presumed” to continue to exist. This principle is called the presumption of the continuity of a State.
To presume is a verb that means to suppose or to take for granted “based on evidence.” To assume is to suppose or take for granted “without evidence.” According to Merriam-Webster e-dictionary, “‘Presume’ is the word to use if you’re making an informed guess based on reasonable evidence. If you’re making a guess based on little or no evidence, the word to use is ‘assume.’”
According to Judge James Crawford from the International Court of Justice, “there is a presumption that the State continues to exist, with its rights and obligations despite a period in which there is no effective government.” He also stated that “belligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.” Paragraph 6-1 of the United States Army Field Manual 6-27, also states:
Military occupation of [another State’s] territory establishes a special relationship between the government of the Occupying Power, the occupied government, and the civilian population of the territory occupied. The body of international law governing occupations recognizes that the Occupying Power is responsible for the general administration of the occupied territory and its civilian inhabitants, including the maintenance of public order or safety.
“If one were to speak about a presumption of continuity,” explains Professor Matthew Craven, “one would suppose that an obligation would lie upon the party opposing that continuity to establish the facts substantiating its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by reference to a valid demonstration of legal title, or sovereignty, on the part of the United States, absent of which the presumption remains.” A legal title under international law would be a treaty between the Hawaiian Kingdom and the United States where the Hawaiian State would merge with the State of the United States. In other words, the question is not whether the Hawaiian Kingdom continues to exist, but rather can “the party opposing that continuity” establish factual evidence, e.g. treaty, that it doesn’t continue to exist. No evidence that it doesn’t exist, the Hawaiian Kingdom continues to exist as a State under international law.
The “presumption of the continuity of a State” is similar to the “presumption of innocence.” A person on trial does not have the burden to prove their innocence. Rather, the prosecutor has to prove beyond all reasonable doubt the guilt of the person. Without proof of guilt, the person remains innocent. In international law, a recognized sovereign and independent State does not have the burden to prove it continues be a State after being belligerently occupied for over a century. Rather, the opposing State has to prove with evidence under international law that the State was extinguished. Absent the evidence, the State continues to exist.
In Hawaiian Kingdom v. Biden, the United States has not provided any “valid demonstration of legal title, or sovereignty,” that the Hawaiian Kingdom was extinguished as a State under international law. Rather it claimed that “the United States annexed Hawaii in 1898 and Hawaii entered the union as a state in 1959.” Both the 1898 Joint Resolution of annexation and the 1959 Hawai‘i Admission Act are municipal laws and, according to the U.S. Supreme Court, in The Apollon, these laws cannot “extend beyond its territory except so far as regards its citizens. They can have no force to control the sovereignty or rights of any other nation within its own jurisdiction.” The U.S. Supreme Court also stated, in United States v. Curtiss-Wright Export Corp., that “neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law.”
In 1988, the U.S. Department of Justice, in a legal opinion titled “Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea,” it stated that “we doubt that Congress has constitutional authority to assert either sovereignty over an extended territorial sea or jurisdiction over it under international law on behalf of the United States.” The Department of Justice also concluded, “It is therefore unclear which constitutional power of Congress exercised when it acquired Hawaii by joint resolution.”
Anecdotally, the Hawaiian Kingdom is the 800-pound Gorilla whose home is the Hawaiian Islands. On January 16, 1893, his home was invaded by Uncle Sam of the United States and on the following day he was put in chains. Uncle Sam made it appear that the Gorilla was dead and he was the new owner of the Hawaiian Islands. The Gorilla, however, was still alive. When Queen Lili‘uokalani, who spoke on behalf of the Gorilla, died on November 11, 1917, the Gorilla fell asleep. 80 years later on February 28, 1997, the Gorilla woke up after the Regency was established as the successor to Queen Lili‘uokalani. As the Gorilla is walking around in the islands, and at the Permanent Court of Arbitration from 1999-2001, in the United States District Court in Hawaiian Kingdom v. Biden since May 20, 2021, and the United Nations Human Rights Council on March 22, 2022, people are saying, “I thought you were dead!” No, the Gorilla never died, he was just sleeping for 80 years because he couldn’t speak. In the Hawaiian Kingdom v. Biden case, District Court Judge Leslie Kobayashi is having a conversation with the 800-pound Gorilla.