From a “State of Peace” to a “State of War” – Hawai‘i and the United States since 1893

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As the Tribunal at the Permanent Court of Arbitration in Larsen v. Hawaiian Kingdom pointed out in, “in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties.” (Award, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 581). As an independent State, the Hawaiian Kingdom was a member of the Family of Nations along with other independent States including the United States. According to Westlake in 1894, they comprised, “First, all European States […] Secondly, all American States […] Thirdly, a few Christian States in other parts of the  world, as the Hawaiian Islands, Liberia and the Orange Free State.” (John Westlake, Chapters on the Principles of International Law (1894) 81).

In 1893, there were 44 independent and sovereign States in the Family of Nations: Argentina, Austria-Hungary, Belgium, Bolivia, Brazil, Bulgaria, Chili, Colombia, Costa Rica, Denmark, Ecuador, France, Germany, Great Britain, Greece, Guatemala, Hawaiian Kingdom, Haiti, Honduras, Italy, Liberia, Lichtenstein, Luxembourg, Netherlands, Mexico, Monaco, Montenegro, Nicaragua, Orange Free State that was later annexed by Great Britain in 1900, Paraguay, Peru, Portugal, Romania, Russia, San Domingo, San Salvador, Serbia, Spain, Sweden-Norway, Switzerland, Turkey, United States of America, Uruguay, and Venezuela. In 1945, there were 45, and today there are 193.

From a State of Peace to a State of War—No Middle Ground

International law, which is law between nations, formed the protocol and relations between these member States. “Traditional international law was based upon a rigid distinction between the state of peace and the state of war,” states Judge Greenwood (Christopher Greenwood, “Scope of Application of Humanitarian Law,” in Dieter Fleck (ed), The Handbook of the International Law of Military Operations (2nd ed., 2008) 45). “Countries were either in a state of peace or a state of war; there was no intermediate state.” (Ibid.) This is also reflected by the fact that the renowned jurist of international law, Lassa Oppenheim, separates his treatise on International Law into two volumes, Vol. I—Peace, and Vol. II—War and Neutrality.

Throughout the nineteenth century, the Hawaiian Kingdom was not only independent and sovereign, but also a neutral State explicitly recognized by treaties with Germany, Spain and Sweden-Norway. The Hawaiian Kingdom enjoyed a state of peace with all States. This status of affairs, however, was interrupted by the United States when the state of peace was transformed to a state of war that began on January 16, 1893. On January 17, 1893, Queen Lili‘uokalani, the Executive Monarch of the Hawaiian Kingdom, made the following protest and a conditional yielding of her authority to the President of the United States in response to military action taken against the Hawaiian government by order of the U.S. resident diplomat John Stevens. The Queen’s protest stated:

“I, Liliuokalani, by the grace of God and under the constitution of the Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts done against myself and the constitutional Government of the Hawaiian Kingdom by certain persons claiming to have established a provisional government of and for this Kingdom. That I yield to the superior force of the United States of America, whose minister plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be landed at Honolulu and declared that he would support the said provisional government. Now, to avoid any collision of armed forces and perhaps the loss of life, I do, under this protest, and impelled by said force, yield my authority until such time as the Government of the United States shall, upon the facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.” (Annexure 2, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 612).

Under international law, the landing of American troops without the consent of the Hawaiian government was an act of war. But in order for an act of war to transform the status of affairs to a state of war, the act must be unlawful under international law. In other words, an act of war would not change the status of affairs to a state of war from that of peace if the action were legal under international law. According to Professor Wright, “An act of war is an invasion of territory…and so normally illegal. Such an act if not followed by war gives grounds for a claim which can be legally avoided only by proof of some special treaty or necessity justifying the act.” (Quincy Wright, “Changes in the Concept of War,” 18 American Journal of International Law (1924), 756).

Military action in a foreign State considered lawful under international law, includes proportionate reprisals in response to another State’s action just short of all out war, and military actions taken to protect its citizenry in the foreign State. Furthermore, the act of war must have been intentional—animo belligerendi, to overthrow the government of the invaded State. As international law is a law between States, which derives from agreements, the claim made by Queen Lili‘uokalani that United States troops unlawfully invaded the kingdom had to be acknowledged by the President of the United States as true. In her protest she called upon the President to investigate the facts and then “undo the action of its representatives and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.” In international law, this is called restitutio in integrum.

After ten months of investigating the overthrow, President Cleveland notified the Congress on December 18, 1893, that the “military demonstration upon the soil of Honolulu was of itself and act of war” that could not be justified under international law as “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.” (Annexure 1—President Cleveland’s message to the Senate and House of Representatives dated 18 December 1893, Larsen v. Hawaiian Kingdom, 119 International Law Reports (2001) 604).

The President then concluded, “By an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown.” (Ibid, 608). He notified the Congress that he initiated negotiations with the Queen “to aid in the restoration of the status existing before the lawless landing of the United States forces at Honolulu on the 16th of January last, if such restoration could be effected upon terms providing for clemency as well as justice to all parties concerned.” (Ibid, 610). What Cleveland did not know at the time of his message to the Congress was that the Queen, on the very same day in Honolulu, accepted the conditions for settlement in an attempt to return to a state of peace. The executive mediation began on November 13, 1893 between the Queen and U.S. diplomat Albert Willis. The President was not aware of the agreement until January 12, 1894.

Despite being unaware of the agreement to settle, President Cleveland’s political determination was an acknowledgment that the United States was in a state of war with the Hawaiian Kingdom since the invasion occurred on January 16, 1893, as stated by the Queen in her protest on January 17, 1893. International law defines war as “a contention between States for the purpose of overpowering each other.” (L. Oppenheim, International Law, vol. II—War and Neutrality (3rd ed., 1921) 74).

Once a state of war ensued between the Hawaiian Kingdom and the United States, “the law of peace ceased to apply between them and their relations with one another became subject to the laws of war, while their relations with other states not party to the conflict became governed by the law of neutrality.” (Greenwood, 45). This outbreak of a state of war between the Hawaiian Kingdom and the United States would “lead to many rules of the ordinary law of peace being superseded…by rules of humanitarian law.” (Ibid, 46).

A state of war “automatically brings about the full operation of all the rules of war and neutrality.” (Myers S. McDougal, “The Initiation of Coercion: A Multi-temporal Analysis,” 52 American Journal of International Law (1948) 247). And according to Venturini, “If an armed conflict occurs, the law of armed conflict must be applied from the beginning until the end, when the law of peace resumes in full effect.” (Gabriella Venturini, “The Temporal Scope of Application of the Conventions,” in Andrew Clapham, Paola Gaeta, and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary (2015), 52). Only by a treaty or agreement between the Hawaiian Kingdom and the United States could a state of peace be restored, without which a state of war ensues.

In order to transform the state of war to a state of peace an attempt was made by executive agreement entered into between President Cleveland, by his resident diplomat Albert Willis, and Queen Lili‘uokalani in Honolulu on December 18, 1893 (David Keanu Sai, “A Slippery Path Towards Hawaiian Indigeneity: An Analysis and Comparison between Hawaiian State Sovereignty and Hawaiian Indigeneity and Its Use and Practice Today,” 10 Journal of Law and Social Challenges (2008) 119-127). Cleveland, however, was unable to carry out his duties and obligations to restore the situation that existed before the unlawful landing of American troops due to political wrangling in the Congress. The state of war continued.

It is a common misconception that only through a declaration of war by the Congress could a state of war exist for the United States. A Federal court in 1946, however, dispensed with this theory in New York Life Ins. Co. v. Bennion. The Court stated, “it cannot be denied that the acts and conduct of the President, acting in furtherance of his constitutional authority and duty, would constitute a political determination of a state of war of which the courts would take judicial notice. We can discern no demonstrable difference in the supposition and the actual facts, and we therefore conclude that the formal declaration by the Congress on December 8th was not an essential prerequisite to a political determination of the existence of a state of war commencing with the attack on Pearl Harbor [on December 7th].” (New York Life Ins. Co. v. Bennion, 158 F.2d 260 (C.C.A. 10th, 1946), 41 American Journal of International Law (1947), 682).

Therefore, the conclusion reached by President Cleveland that an act of war had been committed by the United States was a “political determination of the existence of a state of war,” and that a formal declaration of war by the Congress was not essential. The “political determination” by President Cleveland regarding the actions taken by the military forces of the United States on January 16, 1893, was the same as the “political determination” by President Roosevelt regarding actions taken by the military forces of Japan on December 7, 1945. Both “political determinations,” being acts of war, created a state of war for the United States. A declaration of war by the Congress was not essential in both situations.

The Duty of Neutrality by Third States

When the President declared that a state of war existed by an act of war committed by the American military in his message to Congress, all of the other 42 States were under a duty of neutrality. “Since neutrality is an attitude of impartiality, it excludes such assistance and succour to one of the belligerents as is detrimental to the other, and, further such injuries to the one as benefit the other.” (L. Oppenheim, International Law, vol. II—War and Neutrality (3rd ed., 1921) 401).

The duty of a neutral State, not a party to the conflict, “obliges him, in the first instance, to prevent with the means at his disposal the belligerent concerned from committing such a violation,” e.g. to deny recognition of a puppet government unlawfully created by an act of war. (Ibid, 496). Twenty of these States violated their obligation of impartiality by recognizing the so-called Republic of Hawai‘i, a United States puppet government created by an act of war committed by the United States on January 17, 1893. These States include:

“If a neutral neglects this obligation, he himself thereby commits a violation of neutrality, for which he may be made responsible by a belligerent who has suffered through the violation of neutrality committed by the other belligerent and acquiesced in by him.” (Ibid, 497). The recognition of the so-called Republic of Hawai‘i did not create any legality or lawfulness on the part of the puppet regime, but rather is the indisputable evidence that these States’ violated their duty to be neutral. Diplomatic recognition of governments occurs during a state of peace and not during a state of war, unless providing recognition of belligerency status. The recognitions were not recognizing the Republic as a belligerent in a civil war with the Hawaiian Kingdom, but rather under the false pretense that the Republic succeeded in a revolution and therefore was the new government of Hawai‘i during a state of peace. As such, their relationship with the Hawaiian Kingdom has since been regulated by humanitarian law.

State of War—No Question

The state of war has ensued to date, only to be concealed by a false narrative promoted by the United States government that Hawai‘i was purportedly annexed in 1898 through American legislation (Sai, Slippery Path, 84-94), coupled with a formal policy of the war crime of denationalizing school children beginning in 1906. The purpose of the policy was to obliterate the national consciousness of the Hawaiian Kingdom in the minds of the children and replace it with American patriotism. Within three generations, the effect of the denationalization was nearly complete.

The Hawaiian Kingdom has been in a “legal” state of war with the United States for over a century and the application of the laws of occupation and applicable humanitarian law has not diminished. Without a treaty between the Hawaiian Kingdom and the United States to return the state of affairs back to a state of peace, the state of war continues. As Judge Greenwood stated, “Countries were either in a state of peace or a state of war; there was no intermediate state.”

This is the longest state of war ever to have taken place in the history of international relations, which has created a humanitarian crisis of unimaginable proportions. International humanitarian laws apply, which includes customary international law regarding war and neutrality, 1907 Hague Regulations and the 1949 Geneva Conventions.

16 thoughts on “From a “State of Peace” to a “State of War” – Hawai‘i and the United States since 1893”

  2. And how does it make sense?

    There was no “declaration of war” issued by Congress or other act of war or aggression ordered by the President of the United States against the Kingdom of Hawai’i that preceding or ordered the planned act aggression and overthrow beginning on January 14, 1893. As such, New York Life Ins. Co. v. Bennion, 158 F.2d 260 (10th Cir. 1946) is misplaced. The President of the United States did not order or authorize any act of aggression against the sovereignty of the nation and Kingdom of Hawai’i.

    There was, nevertheless, an overt act of military aggression and active intervention into a civil rebellion that was supported by the United States Minister, John L. Stevens, and U.S. naval forces under his command. The unauthorized and rogue act of aggression was intended to benefit the purported “national security” objectives of the United States, namely, the long sought after annexation and usurpation of the entire jurisdiction (property and political authority) of the peaceful, independent, and de jury Kingdom of Hawai’i. The Spanish-American War became the pretext of “necessity” – using the word “necessity” without applying well recognized standards of interpretive meaning. See: Public Law 103-150.

    The International ArbitrationTribunal decided that “there was no dispute…capable of submission to arbitration” and that the Arbitration Tribunal did not have subject matter jurisdiction. There was no “award.” There was only a unanimous decision by the Arbitral panel to dismiss the case.

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    • “The President of the United States did not order or authorize any act of aggression against the sovereignty of the nation and Kingdom of Hawai’i.”

      The truth or falsity of this factual assertion is unproven. It is ‘as yet’ simply unknown whether U.S. Harrison or Secretary of State Blaine instructed “Minister Plenipotentiary and Envoy Extraordinary” Stevens to pluck the “golden pear” by whatever in whatever manner he [Stevens] chose.

      This leaves, as I see it, two possibilities. Stevens acted on his own in ordering an invasion and starting a war or Stevens acted under instructions that he understood authorized him to starting a war. Either was a breach of the 1849 Treaty promising ‘peace’. And his ‘intent’ is germane only to criminal prosecution. The act of the invasion, by operation of law, creates the state of war.

      As https://en.wikipedia.org/wiki/John_L._Stevens states it: “Presumably his views reflected those of his former partner, friend, sponsor and now boss at the State Department. In 1881, James G. Blaine had written of the necessity of “drawing the ties of intimate relationship between us and the Hawaiian Islands so as to make them practically a part of the American system without derogation of their absolute independence.”

      The fact of the act of war is undisputed. The invasion was certainly an “act of aggression” and, as U.S. President Cleveland admitted an “act of war”. The evidence is the invasion not any particular ‘writing’ telling Stevens to order an invasion.

      “Minister Plenipotentiary and Envoy Extraordinary” Stevens’s actions make ‘perfect sense’ if the goal is to obtain possession of the Hawaiian Islands as he, and his political allies had argued, for nearly two decades, was in the U.S. ‘interests’. Wolves will always find something to say to excuse/justify their ‘aggression’. http://fablesofaesop.com/the-wolf-and-the-lamb.html

      Cheers.

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      • Private war or public war? There are significant and recognizable distinctions.

        Setting those distinctions aside, the United States acknowledged direct participation and benefits derived from the rogue acts of U.S. Minister Stevens and the naval forces stationed. or otherwise deployed in the territorial waters and jurisdiction of the Kingdom of Hawai’i. The Act of Annexation came about some years later under “pretext” of the Congressionally declared Spanish- American War. The original rogue act of war without just cause voids the latter annexation, ab initio, under and by authority of Law of Nations. The recognized Constitution for the United States was created under “Law of Nations” and is subject to all of that supreme law’s perfect rights and perfect obligations. That includes the violation of treaties as well as what is now referred to as “peremptory norms.” See: Vienna Convention on the Law of Treaties, Article 53. (Note. The United States is not a signatory party to the Vienna Convention on the Law of Treaties but applies many of its rules and principles that are inseparably derived from Law of Nations.)

        In modern times and parlance, it is not unlike the recent annexation of Ukraine’s Crimea peninsula by the Russian Federation. The U.S. and other European Nations, as well as other nations, officially object to that annexation to the point of deploying joint defense NATO forces in Ukraine territory and in other Western European nations that have a common border with the Russian Federation.

        Another recent example of the rules and principles is the United States’ direct support for the independence of East Timor.

        P.S. Pursuing actions through later treaties and international agreements, however, maybe threshold barred. Numerous actions have been pursued in international organizations and in multinational tribunals with the same results. Larson v. Hawaiian Kingdom is a case in point. Unfortunately, the cart is being put before the horse.

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        • I beg to differ. Film-maker Regis Tremblay, who is a friend and colleague, traveled to Russia and Crimea just a few months ago to see first hand what was real on the ground, in contrast to corporate media accounts. Specifically, people in Crimea who were English-competent (no translators) made it unmistakably clear that the initiative to rejoin Russia was THEIRS, due to the fear of the neo-Nazi coup in the capital of Ukraine which had US backing (abundant evidence of that exists). Of course it was also in Russia’s interest,but the referendum proposal and its execution was done by Crimeans! That is my refutation of:

          “In modern times and parlance, it is not unlike the recent annexation of Ukraine’s Crimea peninsula by the Russian Federation. The U.S. and other European Nations, as well as other nations, officially object to that annexation to the point of deploying joint defense NATO forces in Ukraine territory and in other Western European nations that have a common border with the Russian Federation.”
          Yes,of course the US and its sycophant allies in Europe “objected.” But the US behavior was, and is a continuation of, the same toward Hawai’i in the 1890s.

          With regard to:
          “Another recent example of the rules and principles is the United States’ direct support for the independence of East Timor.” This is upside down! It was Henry Kissinger, while Nixon’s Sec. of State, who gave the tacit approval to the Indonesian fascists to conduct a massive slaughter of the East Timorese people seeking just what de-facto sovereignty activists in Hawai’i now demand: INDEPENDENCE. The US vigorously opposed independence for East Timor,with thousands of fatal casualties as a result. History Matters!

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    • Sai equates Steven’s actions as an act of war or aggression against Hawai’i and that the president’s acknowledgement or declaration of Steven’s act of war was a political determination of it and not needed for our country to enter a state of war.

      My guess is it is the same as Trump now. Congress did not participate in his actions or declare war on Syria, so after reading this I expect that the US has entered into a state of war. But then they have been operating in that state for centuries now. Just clarification for the Danner bots and their deniers that war crimes is real.

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  4. The bottom line, NO Treaty of Annexation. A Sovereign Nation cannot annex another Sovereign Nation without an agreement, treaty. The Sovereign Nation United States of America obligation to all Nations is to provide the documentation, treaty, signed between to Sovereign Nations, Kingdom of Hawai’i and the United States of America, with their Sovereign Nation official seal, the date and when officially recorded then it would be official Kingdom of Hawai’i is annex between the nations. Until then ‘NO” annexation!

    History proves United States Constitution is just a piece of paper with no back bone. It’s a stab in the back, looks good upfront, used as an education instrument to brainwash in the schools and it blankets the hidden truth.

    Leadership is depressed among the politicians, judges, lawyers and the United States of America Government, Why?… Because they all know the “TRUTH” of the illegal overthrow and the war crimes committed and the stealing of Hawaiian Lands from the Hawaiian, desecration of the Hawaiian Culture and USA continues being remorseless.

    The word “TRUTH” has lost it’s true meaning of being honest. In life either you good or bad, clean or dirty, honest or dishonest and it is sad crimes are committed everyday because lost of being honest and respected in leadership. Whenever leadership such as politicians use the Bible to take an oath I wonder how many really comply with the depth of the oath?

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    • It is important to recognize that EVEN IF the treaty as submitted had acquired the 2/3 majority votes, it STILL would be invalid since the party purporting to represent Hawai’i was illegitimate, as vehemently stated by none other than President Grover Cleveland, in addition to the Queen and the signers of the Monster Petition.

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      • I appreciate this comment. I’ve heard Williamson Chang speak about this issue in a way that makes it seem like it could have held some validity, had it passed with a majority vote, and that the American system was what preserved the situation. At least that was what I got out of what he said. With so much confusion and disinformation in Hawaii, I think what you are saying sounds more correct. And it should not be glossed over, as I feel it was with Mr. Chang. ✌️

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  5. I see no evidence that it was a “rogue” act if by that it is meant that an individual was acting without authority/permission/encouragement by his superiors. Here the U.S. President and Secretary of State. The evidence cuts the other way beginning with Minister Plenipotentiary and Envoy Extraordinary Stevens’ request to have a capital ship of the line with state of the art weaponry permanently stationed in Honolulu. The lack of “rogueness” is further confirmed by the Harrison Administration’s failure to promptly disavow the action and the hasty submission of the treaty and lying about how it came about. It looks more like Austria 1938 minus the brutality towards the Jews but with the same goal of taking their country and erasing the Hawaiians but language, political, economic, and cultural suppression. Call it a US Pacific “liebensraum” policy. But don’t call it a ‘rogue’ act. Illegal, piratical, true enough but not ‘rogue’. If I understand how that term is being used.

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    • Steve, I esp.like your “lebensraum” analogy. It correlates with “parasitic nesting,” a phrase I’ve come across in the past. Apropos per the time and circumstance.

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    • I especially dislike the disingenuous way that the author suggests that the distinction be set aside and then goes on to call it “rogue” several times.

      DISTINCT clarification of “rogue”.?

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  6. I see it as even though Stevens acted on his accord at first, the United States President did find out and did attempt or so to undo what was done but the fact that the problem did get solved or undone puts the United States guilty of breaking international law. Sadly though this is how America has been running things for decades or ever since its existing.

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    • There is no doubt the U.S. has been involved directly or indirectly with regime change in other countries. The difference is that whenever it was determined that the U.S. was an occupier, the U.S. administered the laws of occupation to avoid civil and criminal liability for humanitarian law violations. Once the PCA fact finding Commission report addresses the occupation of the Hawaiian Kingdom the U.S. and all other countries can no longer claim it is a political question. It now becomes a legal fact with civil and criminal liabilities to all countries involved with Hawaii. That legal fact of occupation now removes all defenses of plausible deniability.

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