It the latest filing of a Minute Order on April 19, 2022, in the federal lawsuit, Hawaiian Kingdom v. Biden, U.S. District Court Judge Leslie Kobayashi denied the Hawaiian Kingdom’s Motion for Reconsideration, but simultaneously acknowledged the continued existence of the Hawaiian Kingdom as a State under international law.
In its Motion for Reconsideration, the Hawaiian Kingdom was addressing Judge Kobayashi’s terse statement in two previous Orders that “there is no factual (or legal basis) for concluding that the [Hawaiian] Kingdom exists as a state in accordance with recognized attributes of a state’s sovereign nature.” This statement runs counter to international law where an international rule exists regarding the continued existence of the Hawaiian Kingdom as a State despite the United States admitted illegal overthrow of its government on January 17, 1893. She provided no evidence to back up her one line statement.
Under international law, according to Judge James Crawford, 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,” and that belligerent “occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.”
According to Black’s Law Dictionary, a “presumption is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted.” In other words, presumption is a rule of international law where a recognized independent State is a basic fact that gives rise to the existence of a presumed fact, which is its continued existence until this presumed fact is rebutted with evidence. Evidence that would show the Hawaiian Kingdom “does not” continue to exist under international law is where the Hawaiian Kingdom transferred its sovereignty and territory to the United States by a treaty.
The presumption of innocence works the same as the presumption of continuity because the burden to disprove the presumption lies with the opposing party. In a criminal trial, the defendant does not have the burden to “prove” his or her innocence, but rather it is the burden of the prosecutor to “disprove” the innocence with rebuttable evidence. Likewise, the Hawaiian Kingdom does not have the burden to “prove” its continued existence, but rather it is the burden of the United States to “disprove” the Hawaiian Kingdom’s continued existence with rebuttable evidence under international law.
Like the presumption of innocence, the presumption of continuity has a much more significant role in legal or court proceedings because it is evidence based as opposed to political venues that rely on power and rhetoric. In a court proceeding, the presumption rule is the cornerstone of the rule of law and the basis for a fair trial.
As Professor Matthew Craven explains, “If one were to speak about a presumption of continuity, one would suppose that an obligation would lie upon the party opposing that continuity to establish the facts sustaining its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by reference to a valid demonstration of legal rights, or sovereignty, on the part of the United States, absent of which the presumption remains.” According to Craven, only by the Hawaiian Kingdom’s “incorporation, union, or submission” to the United States, which is by treaty, can the presumption of continuity be rebutted.
There is no treaty, but rather a Congressional joint resolution of annexation that was signed into U.S. law on July 7, 1898, by President William McKinley. The problem is that a joint resolution is not a treaty but rather a United States municipal law that has no effect beyond the borders of the United States. Ninety years later, in 1988, the U.S. Department of Justice’s Office of Legal Counsel, in a legal opinion, stated, “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. It is therefore unclear which constitutional power of Congress exercised when it acquired Hawaii by joint resolution.”
Judge Kobayashi, in her latest Order, did not deny the customary international rule of the presumption of continuity of the Hawaiian Kingdom as a sovereign and independent State as was fully explained in the Hawaiian Kingdom’s Motion for Reconsideration. She also did not provide any rebuttable evidence to the presumption of continuity that the Hawaiian Kingdom was extinguished as a State under international law. As the U.S. Supreme Court stated, in The Paquette Habana, 175 U.S. 677, 700 (1900) “International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.”
In her Order, Judge Kobayashi disregarded international law and simply stated, “Although Plaintiff argues there are manifest errors of law in the 3/30/22 Order and the 3/31/22 Order, Plaintiff merely disagrees with the Court’s decision.” This is analogous to a defense attorney asking the presiding judge to set aside the judgment against the defendant because the prosecutor provided no evidence in trial rebutting the presumption of innocence. And the judge simply responded, “Defendant merely disagrees with the Court’s decision.” Despite the unlawfulness of such a judgment, the Defendant is still innocent.
More significantly though, in these proceedings, is that this cavalier statement by Judge Kobayashi neither denied the international rule of the presumption of continuity nor did she provide any rebuttable evidence that the Hawaiian Kingdom does not continue to exist. This is also a difficult task for Judge Kobayashi because the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom, previously acknowledged the continued existence of the Hawaiian Kingdom as a “State” as shown in its case repository.
Consequently, by not providing any rebuttable evidence, i.e., a treaty, Judge Kobayashi acknowledged the continued existence of the Hawaiian Kingdom as a sovereign and independent State and yet disregarded her obligation under international law to transform the Court into an Article II Occupation Court.
In order to preserve the statements made by Judge Kobayashi and the defendants United States and the Swedish Consul, as well as the default entered by the Clerk for the State of Hawai‘i, to include Governor David Ige, Securities Commissioner Ty Nohara, and Director of the Department of Taxation Isaac Choy, and the twelve foreign Consulates also named as defendants in the case, which include Austria, Belgium, Chile, Germany, Japan, Luxembourg, Netherlands, Norway, Philippines, South Korea, Spain, and Thailand, the Hawaiian Kingdom filed a Notice of Appeal today with the Court. In its opening paragraph, the Hawaiian Kingdom stated:
TO THE COURT AND TO ALL PARTIES HEREIN:
PLEASE TAKE NOTICE that Plaintiff HAWAIIAN KINGDOM, hereby preserves the record of these proceedings by its notice to appeal to a competent court of appeals to be hereafter established in the Hawaiian Kingdom by the United States as an Occupying Power in accordance with international humanitarian law from the Order granting in part and denying in part Defendant Nervell’s Motion to Dismiss [ECF 222], Order denying Plaintiff’s Motion for Judicial Notice [ECF 223], and Minute Order denying Plaintiff’s Motion for Reconsideration and Motion to Amend [ECF 227].
In its Notice of Appeal, the Hawaiian Kingdom addressed the lack of fairness by the federal Court and the legal consequences of Judge Kobayashi’s actions that constitute the war crime of “willfully” depriving the Hawaiian Kingdom of its “rights of fair and regular trial” guaranteed in the 1949 Fourth Geneva Convention. Grave breaches are war crimes that have been codified under federal criminal law in Title 18 U.S. Code §2441(c)(1).
Although the “Occupying Power is […] free to decide whether or not the competent courts of appeal are to sit in occupied territory,” Article 66 of the Fourth Geneva Convention “states that they should ‘preferably’ sit in the occupied country; this would be likely to provide the protected persons with additional safeguards.” See Jean S. Pictet, Commentary IV Geneva Convention (1958), 341. The United States has not established “competent courts of appeal” in the Hawaiian Kingdom or in the United States to address the Hawaiian Kingdom’s instant appeal.
Consequently, the Court’s disregard of obligations mandated under international law, in its refusal to transform, and the inability of Plaintiff to appeal to an Article II appellate court has willfully deprived Plaintiff of its “rights of fair and regular trial,” thus being a “grave breach” of the 1949 Fourth Geneva Convention, Article 147, 6.3 U.S.T. 3516, 3618 (1955); 18 U.S.C. §2441(c)(1).
The Hawaiian Kingdom concluded in its Notice of Appeal:
This Court was not “established and organized in accordance with the laws and procedures already in force” in the Hawaiian Kingdom, nor “in accordance with the recognized principles governing the administration of justice.” Accordingly, the Hawaiian Kingdom’s notice of appeal is submitted for purposes of preserving the record of these proceedings in its appeal until this Court transforms or a competent Article II appellate court is established in compliance with international humanitarian law and Hawaiian Kingdom law.
The Court can learn from the Hawaiian Kingdom Supreme Court, in Shillaber v. Waldo et al., 1 Haw. 31, 32 (1848), where Chief Justice William Lee stated, “In the language of another, ‘Let justice be done though the heavens fall.’ Let the laws be obeyed, though it ruin every judicial and executive officer in the Kingdom. Courts may err. Clerks may err. Marshals may err—they do err in every land daily; but when they err let them correct their errors without consulting pride, expediency, or any other consequences.”
POINT OF CLARIFICATION: The Hawaiian Kingdom is not appealing to the 9th Circuit Court of Appeals because it is an Article III Court situated within the territory of the United States. If the United States District Court for the District of Hawai‘i was operating lawfully as an Article III Court, an appeal would be made with the 9th Circuit. However, this Court is not lawfully operating, and therefore the Hawaiian Kingdom is appealing to an Article II Appellate Court that has yet to be established. The purpose of the Notice of Appeal is also to preserve the record of these proceedings until either this Court transforms itself into an Article II Occupation Court or until the United States establishes Article II Appellate Courts.