On Monday January 16, 1893, United States Minister intervened in the internal affairs of the Hawaiian Kingdom when he ordered U.S. troops to invade Honolulu and overthrow the Hawaiian Kingdom government in order to replace it with an insurgency he supported. The next day, the insurgents, in the presence of and protected by armed-for-battle U.S. military forces, declared themselves a “provisional government”. Under threat of violence by the U.S. military forces, Queen Lili‘uokalani conditionally surrendered to the United States.
Her conditional surrender 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 this under protest, and impelled by said force yield my authority until such time as the Government of the United States shall, upon facts being presented to it, undo the action of its representative and reinstate me in the authority which I claim as the constitutional sovereign of the Hawaiian Islands.
On December 18, 1893, President Grover Cleveland, in his message to Congress, informed it of his findings in his investigation into the United States Government overthrow of the Hawaiian Kingdom government. President Cleveland concluded that the invasion was a “military demonstration upon the soil of Honolulu [which] was of itself an act of war.” He concluded “that the provisional government owes its existence to an armed invasion by the United States.” He acknowledged that on January 17th, “the Government of the Queen…was undisputed and was both the de facto and the de jure government.” President Cleveland also determined that the insurgency “was neither a government de facto nor de jure”. The insurgents merely declared it to exist after being assured of United States diplomatic and military support.
On November 13, 1893, when negotiations began between the Queen and the new U.S. Minister, Albert Willis, the President proposed restoration of the Queen only if she would grant a general amnesty to the insurgency and their supporters, as well as recognizing their bona fide acts and obligations. In this first meeting, the Queen refused, but after more deliberations on the subject she agreed, and the resolution was memorialized in an executive agreement between the two governments. The U.S. Supreme Court has held, in U.S. v. Belmont (1937), that executive agreements entered into between the President and the governments of foreign countries are deemed treaties not requiring Senate consent for ratification or approval.
The United States President breached his promise and obligation to restore the Queen, and, consequently, the insurgents were never granted amnesty. They remained a United States proxy pretending to be a government for Hawai‘i. On July 3, 1894, the insurgents changed their name from the provisional government to the “Republic of Hawai‘i.” Four years later during the Spanish-American War, the U.S. Congress, via domestic law, unilaterally annexed the Hawaiian Islands under a Joint Resolution To provide for annexing the Hawaiian Islands to the United States.
In 1900, the U.S. Congress, via domestic law, changed the name of the “Republic of Hawai‘i” to the “Territory of Hawai‘i” under An Act To provide a government for the Territory of Hawaii. In 1959, the U.S. Congress, again domestic law, changed the name of the “Territory of Hawai‘i” to the “State of Hawai‘i” under An Act To provide for the admission of the State of Hawaii into the Union. As the U.S. Supreme Court, in United States v. Curtiss-Wright Export Corp. (1936), stated: “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory.” In other words, Congressional laws, to include the joint resolution of annexation, have no effect beyond the territory of the United States.
Despite the military invasion, belligerent occupation, purported annexation, and the effective control of Hawaiian territory by the United States through its proxies—the provisional government, the Republic of Hawai‘i, and the Territory of Hawai‘i—the Hawaiian Kingdom, as a State under international law, continues to exist, and that the United States, through its current proxy, the State of Hawai‘i, is obligated to administer Hawaiian Kingdom laws until a peace treaty has been concluded.
The State of Hawai‘i, as a direct descendant of the provisional government, owes its existence to an armed invasion by the United States. Currently, the State of Hawai‘i, is in effective control of the territory of the Hawaiian Kingdom. Under international law, this effective control triggers the law of occupation to administer the laws of the occupied State, the Hawaiian Kingdom.
On January 13, 2020, the National Lawyers Guild (“NLG”) publicly announced its position regarding the prolonged occupation of the Hawaiian Kingdom. The NLG:
• strongly condemns the prolonged and illegal occupation of the Hawaiian Islands.
• also condemns the unlawful presence and maintenance of the United States Indo-Pacific Command with its 118 military sites throughout the Hawaiian Islands, which has caused the islands to be targeted for nuclear strike by North Korea, China and Russia.
• calls for the United States to immediately comply with international humanitarian law and begin to administer the laws of the Hawaiian Kingdom as the occupied State.
• calls on the legal and human rights community to view the United States presence in the Hawaiian Islands through the prism of international law and to roundly condemn it as an illegal occupation under international law.
• supports the Hawaiian Council of Regency, who represented the Hawaiian Kingdom at the Permanent Court of Arbitration, in its efforts to seek resolution in accordance with international law as well as its strategy to have the State of Hawai‘i and its Counties comply with international humanitarian law as the administration of the Occupying State.
• calls on all United Nations member States and non-member States to not recognize as lawful a situation created by a serious violation of international law, and to not render aid or assistance in maintaining the unlawful situation. As an internationally wrongful act, all States shall cooperate to ensure the United States complies with international humanitarian law and consequently bring to an end the unlawful occupation of the Hawaiian Islands.
In its November 10, 2020 letter to Governor David Ige of the State of Hawai‘i the NLG calls “upon the State of Hawai‘i and its County governments, as United States’ proxy, which is in effective control of Hawaiian territory, to immediately comply with international humanitarian law while the United States continues its prolonged and illegal occupation of the Hawaiian Kingdom since 1893.”
The NLG “is deeply concerned that international humanitarian law continues to be flagrantly violated with apparent impunity by the State of Hawai‘i and its County governments. This has led to the commission of war crimes and human rights violations on a colossal scale throughout the Hawaiian Islands. International criminal law recognizes that the civilian inhabitants of the Hawaiian Islands are ‘protected persons’ who are afforded protection under international humanitarian law and their rights are vested in international treaties. There are no statutes of limitation for war crimes, as you must be aware.”
In closing, the NLG calls upon “Governor Ige to proclaim the transformation of the State of Hawai‘i and its Counties into an occupying government pursuant to the Council of Regency’s proclamation of June 3, 2019 in order to administer the laws of the Hawaiian Kingdom. This would include carrying into effect the Council of Regency October 10, 2014 Proclamation that brings Hawaiian Kingdom laws up to date. We further urge you and other officials of the State of Hawai‘i and its Counties to become familiar with the contents of the recent eBook published by the [Royal Commission of Inquiry] and its reports that comprehensively explain the current situation of the Hawaiian Islands and the impact that international humanitarian law and human rights law have on the State of Hawai‘i and its inhabitants.”
The reader is encouraged to visit the Royal Commission of Inquiry’s (“RCI”) webpage for materials providing a broader understanding of the prolonged U.S. occupation of the Hawaiian Kingdom and the obligations international law imposes on the United States. The webpage also explains the RCI’s mandate and its approach in investigating war crimes and human rights violations.