On April 26, 2024, the Minister of the Interior published a memorandum addressing the effects of an illegal occupation by the United States since January 17, 1893, the restoration of the Hawaiian Kingdom Government on February 28, 1997, the Permanent Court of Arbitration’s recognition of the continuity of the Hawaiian Kingdom and the Council of Regency as its government on November 8, 1999, exposure of the continuity of Hawaiian Kingdom Statehood since 2001, transforming the State of Hawai‘i into a Military Government, and the continuity of rights of Hawaiian subjects under Hawaiian Kingdom laws to land, healthcare, and fishing.

The Minister of the Interior’s purpose was to have the memorandum disseminated amongst the national population of the Hawaiian Kingdom so that they know certain rights they have under Hawaiian Kingdom law and to know the circumstances by which these rights can be exercised for their benefit. The exercising of these rights to land, healthcare, and fishing, would greatly enhance their lives and their families in Hawai‘i. Under the law of occupation, it is the responsibility of a Military Government that would ensure these rights can be exercised.

Now at 131 years of an illegal and prolonged occupation, the Hawaiian Kingdom is finally at the stage of actionable compliance with the law of occupation by the State of Hawai‘i, on behalf of the United States, setting the course to bring the American occupation to an end. This process begins when Army Major General Kenneth Hara, Director of the State of Hawai‘i Department of Defense, proclaims that the State of Hawai‘i has been transformed into a Military Government so that it will begin to administer the laws of the Hawaiian Kingdom that existed prior to the occupation on January 17, 1893, and the provisional laws proclaimed by the Council of Regency in 2014, so that these nineteenth century laws can be brought up to date. The proclamation stated:

And, We do hereby proclaim that from the date of this proclamation all laws that have emanated from an unlawful legislature since the insurrection began on July 6, 1887 to the present, to include United States legislation, shall be the provisional laws of the Realm subject to ratification by the Legislative Assembly of the Hawaiian Kingdom once assembled, with the express proviso that these provisional laws do not run contrary to the express, reason and spirit of the laws of the Hawaiian Kingdom prior to July 6, 1887, the international laws of occupation and international humanitarian law.

On August 1, 2023, the Minister of the Interior published a memorandum that provides the formula for determining which laws of the United States, State of Hawai‘i, and Counties, presently being imposed in the territory of the Hawaiian Kingdom, shall be considered the provisional laws.

Why is this important for Native Hawaiians who comprise the majority of the national population of the Hawaiian Kingdom called Hawaiian subjects? Because the greatest dilemma facing Native Hawaiians today is not having a home and not having adequate health care. According to the Office of Hawaiian Affairs’ Native Hawaiian Health Fact Sheet 2017, “Today, Native Hawaiians are perhaps the single racial group with the highest health risk in the State of Hawai‘i. This risk stems from high economic and cultural stress, lifestyle and risk behaviors, and late or lack of access to health care.”

The cost of living under American control has placed Hawai‘i as the most expensive place in the United States to live. According to the Missouri Economic Research and Information Center in 2023, Hawai‘i has the highest cost of living in the United States with an index of 180.3. The national average index was at 100. The cost of living is calculated by combining the cost for groceries, housing, utilities, transportation, and health care. This reality forced Native Hawaiians to move to America, where they outnumber the population of Native Hawaiians in Hawai‘i. The U.S. Census report indicated that in 2020, there were a total of 680,442 Native Hawaiians, with 47 percent residing in Hawai‘i, and 53 percent residing in the United States.

The average cost of a home in Hawai‘i is $820,000.00, and health care insurance for a family of 4 is approximately at $1,500 a month. Under Hawaiian Kingdom laws, Native Hawaiians, who are called aboriginal Hawaiian subjects under Hawaiian law, are the recipients of free health care at Queen’s Hospital and at its outlets across the islands today. Aboriginal Hawaiian subjects are also able to acquire up to 50 acres of public lands at $20.00 per acre under the 1850 Kuleana Act, which has not been repealed. With the current rate of construction costs, which includes building material and labor, an aboriginal Hawaiian subject can build a 3 bedroom 1 bath home for $100,000.00, which is far less than the average cost of a home today.

Hawaiian Kingdom laws also provide for fishing rights that extend out to the first reef or where there is no reef, out to 1 mile, exclusively for all Hawaiian subjects and lawfully resident aliens of the land divisions called ahupua‘a or ‘ili, such as the ahupua‘a of Waimanalo and the ‘ili of Kuli‘ou‘ou. This is an important Hawaiian law because, since the American presence, anyone can access and deplete these resources from the exclusive rights of the residents of the ahupua‘a or ‘ili.

From the first reef or from the one nautical mile marker point out to twelve nautical miles, all Hawaiian subjects and lawfully resident aliens have exclusive access to economic activity, such as access to underwater resources and fishing. Once the United Nations Convention on the Law of the Sea is acceded to by the Council of Regency, this exclusive access to economic activity will extend out to 200 miles called the Exclusive Economic Zone.

The 2024-2025 State of Hawai‘i $19.2 billion budget, gives MG Hara the resources to transform the State of Hawai‘i into a Military Government by reallocating monies in line with returning to the status quo ante of the Hawaiian Kingdom and its institutions as they were prior to the American occupation. In particular, MG Hara can immediately allocate monies to the Queen’s Hospital so that Native Hawaiians have access to free healthcare that has been secured under Hawaiian Kingdom law.

Since the restoration of the Government of the Hawaiian Kingdom in 1997, the Council of Regency has been on a track of compelling the United States and the State of Hawai‘i to comply with the international law of occupation. Its three-phase strategic plan was framed in order to achieve this objective.

Phase I—verification of the Hawaiian Kingdom as an independent State and a subject of international law. Phase II—exposure of Hawaiian Statehood within the framework of international law and the laws of occupation as it affects the realm of politics and economics at both the international and domestic levels. Phase III—restoration of the Hawaiian Kingdom as an independent State and a subject of international law. Phase III occurs when the American occupation comes to an end by a treaty of peace.

Critical to this strategy was to have a reputable international body recognize the continued existence of the Hawaiian Kingdom as a State under international law, which is phase 1. Phase 1 was not seeking international recognition of the Hawaiian Kingdom as a new State because recognition was already afforded in the nineteenth century. Rather, phase 1 was seeking the recognition of the Hawaiian Kingdom’s “continuity” as a State and its laws. The Regency knew that international law clearly provided for the Hawaiian Kingdom’s continued existence despite the illegal overthrow of its Government by the United States on January 17, 1893. What was needed, however, was to have an international body conclude, by an application of relevant international laws, that the Hawaiian State indeed “continues” to exist. Phase 1 would be a very complex legal situation to play out.

Because the State under international law is a legal entity, it needs a government to speak on its behalf no different than how a business corporation is a legal entity that needs a CEO and a Board of Directors to speak on its behalf. Without a physical body, the legal entity is silent but still legally exists. So, to get this matter before an international body, the Hawaiian Government had to first be in place in order to speak for the Hawaiian State. Another aspect to this, would be the legal competency for the Regency to be the lawful Government representing the Hawaiian State. This raises two issues, first the legal competency for the Regency to be established in accordance with Hawaiian Kingdom laws, and, second, whether the Regency needed diplomatic recognition to be the Government of the Hawaiian Kingdom.

Under international law, once recognition of the Hawaiian Kingdom as a sovereign and independent State was achieved in the nineteenth century, it was also the recognition of its government being a constitutional monarchy. Any successor Head of State since the original recognition of King Kamehameha III, as the Head of State, would not require diplomatic recognition so long as the successor became the Head of State in accordance with the laws of the Hawaiian Kingdom.

The legal doctrines of recognition of new governments only arise “with extra-legal changes in government” of an existing State. Successors to King Kamehameha III were not established through “extra-legal changes,” but rather under the constitution and laws of the Hawaiian Kingdom. According to Restatement (Third) of Foreign Relations Law of the United States, “Where a new administration succeeds to power in accordance with a state’s constitutional processes, no issue of recognition or acceptance arises; continued recognition is assumed.”

Under Hawaiian law, the Council of Regency serves in the absence of the Executive Monarch. While the last Executive Monarch was Queen Lili‘uokalani, who died on November 11, 1917, the office of the Executive Monarch remained vacant under Hawaiian constitutional law. There was no legal requirement for the Council of Regency, being the successor in office to Queen Lili‘uokalani under Hawaiian constitutional law, to obtain recognition from the United States to be the government of the Hawaiian Kingdom.

The United States’ recognition of the Hawaiian Kingdom, as an independent State on July 6, 1844, was also a recognition of its government—a constitutional monarchy. Successors in office to King Kamehameha III, who at the time of international recognition was King of the Hawaiian Kingdom, did not require diplomatic recognition. These successors included King Kamehameha IV in 1854, King Kamehameha V in 1863, King Lunalilo in 1873, King Kalākaua in 1874, Queen Lili‘uokalani in 1891, and the Council of Regency in 1997.

If the successor arose out of a revolution, which comes about through “extra-legal changes in government,” it would need diplomatic recognition as the de facto government that replaced the previous form of government. This is why the insurgency, calling itself the provisional government, needed diplomatic recognition as a de facto government by resident U.S. Minister John Stevens on January 17, 1893, to have any semblance of legality under international law. President Grover Cleveland, after investigating the overthrow, told the Congress, by message, on December 18, 1893:

When our Minister recognized the provisional government the only basis upon which it rested was the fact that the Committee of Safety had…declared it to exist. It was neither a government de facto [in fact] nor de jure [in law]. That it was not in such possession of the Government property and agencies as entitled it to recognition.

President Cleveland also undermined the status of the provisional government when he told the Congress, “the Government of the Queen…was undisputed and both the de facto and the de jure government.” In other words, they were not a successful revolution, and that the lawful government was the Hawaiian Kingdom as a constitutional monarchy. Instead, they were an insurgency and a puppet creation by the United States. On this note, the President told the Congress that the “provisional government owes its existence to an armed invasion by the United States.”

With the government in place since 1997, the legal complexities to achieve phase I were set and it played out at the Permanent Court of Arbitration (“PCA”) in The Hague, Netherlands. The PCA was established in 1899 by the United States and twenty-five other countries as an intergovernmental organization that provides a variety of dispute resolution services to the international community. In 1907, the 1899 Convention for the Pacific Settlement of International Disputes was superseded by the 1907 Convention for the Pacific Settlement of International Disputes. Presently, there are currently 122 countries that became contracting States to either the 1899 or the 1907 Conventions, which includes the United States.

On November 8, 1999, a dispute between Lance Paul Larsen, a Hawaiian subject, and the Hawaiian Kingdom was submitted to the PCA for settlement, which came to be known as Larsen v. Hawaiian Kingdom. Larsen was alleging that the government of the Hawaiian Kingdom, by its Council of Regency, should be liable for allowing the unlawful imposition of American laws. He alleged that these laws denied him a fair trial, which led to his incarceration.

Before the PCA could establish an arbitration tribunal to resolve the dispute, it had to verify that the Hawaiian Kingdom “continues” to exist as a State under international law and that its government is the Council of Regency. It did, and on June 9, 2000, the PCA established the arbitration tribunal comprised of three arbitrators. With phase 1 completed, phase 2 was initiated, which began the exposure of Hawaiian Statehood during oral hearings at the PCA on December, 7, 8, and 11, 2000.

Phase 2 was continued at the University of Hawai‘i at Mānoa, where for the past twenty-four years research, publications, and classroom instructions have begun to normalize the circumstance of the American occupation and the role of how the law of occupation will bring the American occupation to a close. This exposure phase will trigger compliance to the law of occupation by the State of Hawai‘i, but not the United States federal government.

The law of occupation obligates the entity of the occupying State, who is in effective control of a majority of the territory of the occupying State, to establish a military government to begin to administer the laws of the occupied State. When the United States occupied Japan from 1945 to 1952, General Douglas MacArthur served as the Military Governor overseeing the Japanese civilian government. The function of a military government is to provisionally administer the laws of the occupied State until there is a treaty of peace where the occupation will come to an end. When the 1951 San Francisco Peace Treaty with Japan came into force on April 28, 1952, the United States occupation of Japan came to an end.

In 1893, the United States did not establish a military government and it allowed their puppet governments, called the provisional government who later changed its name to the Republic of Hawai‘i on July 4, 1894, to impose its will on the population. After illegally annexing the Hawaiian Islands on July 7, 1898, the United States unlawfully imposed its own laws over the territory of the Hawaiian Kingdom through its puppets the Territory of Hawai‘i from 1900 to 1959, and the State of Hawai‘i from 1959 to the present. Under international law, all acts done by the United States are void and invalid because the United States does not have sovereignty over the Hawaiian Islands.

President Cleveland also stated to the Congress that the overthrow of the Government of the Hawaiian Kingdom was directly tied to an incident of war. He stated that 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.” The overthrow of the Government of the Hawaiian Kingdom did not affect the sovereignty and legal order of the Hawaiian Kingdom as a State. U.S. Army Field Manual 27-10 regulates the actions taken by U.S. troops during the military occupation of a foreign State. Paragraph 358 states:

Being an incident of war, military occupation confers upon the invading force the means of exercising control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty. The exercise of these rights results from the established power of the occupant and from the necessity of maintaining law and order, indispensable both to the inhabitants and to the occupying force. It is therefore unlawful for a belligerent occupant to annex occupied territory or to create a new State therein while hostilities are still in progress.

Only the Hawaiian Kingdom has sovereignty over the Hawaiian Islands and not the United States. International law does not allow two sovereignties to exist within one and the same State. In the S.S. Lotus case, which was a dispute between France and Turkey, the Permanent Court of International Justice explained:

Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention (treaty).

The permissive rule under international law that allows one State to exercise authority over the territory of another State is Article 43 of the 1907 Hague Regulations and Article 64 of the 1949 Geneva Convention, that mandates the occupant to establish a military government to provisionally administer the laws of the occupied State until there is a treaty of peace. For the past 131 years, there has been no permissive rule of international law that allows the United States to exercise any authority in the Hawaiian Kingdom. Instead, it imposed its will over the population of the Hawaiian Kingdom by unlawfully imposing its laws, which was at the center of the Larsen case. The PCA described the Larsen v. Hawaiian Kingdom arbitration case on its website as:

Lance Paul Larsen, a resident of Hawaii, brought a claim against the Hawaiian Kingdom by its Council of Regency (“Hawaiian Kingdom”) on the grounds that the Government of the Hawaiian Kingdom is in continual violation of: (a) its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America, as well as the principles of international law laid down in the Vienna Convention on the Law of Treaties, 1969 and (b) the principles of international comity, for allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.

To bring compliance with the law of occupation and to allow the presence of the United States, by virtue of the permissive rule embodied in the 1907 Hague Regulations and the 1949 Geneva Convention, the State of Hawai‘i must be transformed into a Military Government. The determining factor as to what entity of the United States has the duty to become a Military Government is the “effectiveness” test. Article 42 of the 1907 Hague Regulations clearly states, “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” In other words, an entity cannot enforce the laws of the occupied State without being in effective control of the territory of the occupied State.

In this situation, it is the State of Hawai‘i and not the federal government that is in effective control of  the majority of Hawaiian Kingdom territory, where the latter is only in effective control of less then 500 square miles while the former is in effective control of 10,931 square miles.

The officer of the State of Hawai‘i that has the duty to transform the State of Hawai‘i into a Military Government is the Director of the State of Hawai‘i Department of Defense U.S. Army Major General Kenneth Hara. Governor Josh Green is a civilian, and he has no direct link to the United States Department of Defense whose Directive no. 5100.01 explicitly states that one of the functions of the Army in “[occupied] territories abroad [is to] provide for the establishment of a military government pending transfer of this responsibility to other authority.”

Like General MacArthur, MG Hara would serve as the Military Governor. His actions, though, are constrained by international law and the law of occupation. International law also provides for the sharing of authority between the Military Governor and the Council of Regency. MG Hara does not have absolute authority. On this topic of shared authority, Professor Federico Lenzerini, in his legal opinion, explains:

Despite the fact that the occupation inherently configures as a situation unilaterally imposed by the occupying power—any kind of consent of the ousted government being totally absent—there still is some space for “cooperation” between the occupying and the occupied government—in the specific case of Hawai’i between the State of Hawai‘i and its Counties and the Council of Regency. Before trying to specify the characteristics of such a cooperation, it is however important to reiterate that, under international humanitarian law, the last word concerning any acts relating to the administration of the occupied territory is with the occupying power. In other words, “occupation law would allow for a vertical, but not a horizontal, sharing of authority […] [in the sense that] this power sharing should not affect the ultimate authority of the occupier over the occupied territory”. This vertical sharing of authority would reflect “the hierarchical relationship between the occupying power and the local authorities, the former maintaining a form of control over the latter through a top-down approach in the allocation of responsibilities”.

The Council of Regency has provided MG Hara an Operational Plan, with essential and implied tasks, to transform the State of Hawai‘i into a Military Government.

While the State of Hawai‘i has yet to transform itself into a Military Government and proclaim the provisional laws proclaimed by the Council of Regency, Hawaiian Kingdom laws as they were prior to January 17, 1893, continue to exist. Because of phase 2 there is a growing awareness among Native Hawaiians on not only the circumstances of the American occupation but also the denial of their rights secured under Hawaiian Kingdom law, which the American presence took away from them and their families.

MG Hara’s delay in proclaiming the establishment of the Military Government of Hawai‘i has now a direct impact on the rights of Native Hawaiian families and their ability to exercise and benefit from these rights under Hawaiian Kingdom law. According to international law, the enforcement of the law of occupation is with MG Hara, but the pressure placed upon MG Hara to enforce Hawaiian Kingdom laws are with Native Hawaiians whose rights are being denied by his inaction. In other words, MG Hara’s reluctance to carry out his duty can now be directly tied to Native Hawaiians lack of a home and adequate healthcare.