The Meaning of Hawaiian Independence in International Law

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As the Hawaiian Kingdom approaches the celebration of its most important national holiday Lā Ku‘oko‘a (Independence Day) on November 28—Saturday, it is important to understand just what the term “independence” really means. Common misunderstandings are statements such as “independence advocates” or “people who want Hawaiian independence.” These statements assume Hawai‘i is not independent, where independence is a political aspiration and not a legal reality. It is also evidence of denationalization through Americanization that has nearly obliterated the national consciousness of the Hawaiian Kingdom in the minds of the people.

Patriotic Exercises_TH

In international relations and law, independence reflects the status of a State whereby the international community recognizes that only the laws of that particular State apply over its territory “independent” of other laws over other States and their territories. Only independent States are subjects of international law or members or the Family of Nations. In other words you can be a State, but not be independent, such as the State of New York, which once was an independent State but is no longer today.

After the American Revolution, the State of New York became an independent State along with the other former twelve British colonies, who were all member States of a political union called the United Stated States of America, which was a confederation since 1777. A confederation is a political union of independent States, such as today’s European Union, which is a commercial union of independent States.

Article 1 of the 1783 Treaty of Paris that ended the American Revolution, specifically states, “His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and Independent States.” For the next six years, the international community recognized that only New York law applied over the territory of New York to the exclusion of any foreign States’ laws, such as the laws of Great Britain and France.

In 1789, New York would lose its independence of its laws when it chose to join an American Federation whereby all thirteen American independent States would relinquish their independence to a Federal government thereby creating the United States of America as the world knows it today. This is when the United States of America replaced the former thirteen independent States as the single independent State under international law. No longer being an independent State, New York has two separate laws that apply with equal force within its territory—United States Federal law and State of New York law.

When Great Britain and France jointly proclaimed on November 28, 1843 that both States recognized the Hawaiian Kingdom as an Independent State, it meant that only Hawaiian law would apply over Hawaiian territory, which signified Hawaiian independence. Even more surprising was that the Hawaiian Kingdom was the only non-European Power admitted into the Family of Nations with full recognition of its independence of Hawaiian law over Hawaiian territory.

1843 Declaration_p_1(color)

1843 Declaration_p_2(color)

Other non-European Powers such as Japan were not admitted as independent States into the Family of Nations until 1899, and since 1858, Japan had unequal treaties whereby independent States, such as the United States of America, applied their own laws within Japanese territory over their citizenry. Under the 1858 American-Japanese unequal treaty, American citizens could only be prosecuted in Japan under American law and tried by the American Consulate serving as the Court. The Hawaiian Kingdom also had an unequal treaty with Japan. Under the 1871 Hawaiian-Japanese Treaty, Hawaiian subjects in Japan could only be prosecuted under Hawaiian law by the Hawaiian Consulate in Tokyo.

Since the American occupation began, Hawaiian independence is at the core of the law of occupation. This means only Hawaiian law must be temporarily administered by the occupying State. No other law can be administered in an occupied State because it is independent. The laws of occupation would not apply if Hawai‘i was not an independent State.

In international arbitration between the Netherlands and the United States at the Permanent Court of Arbitration (Island of Palmas case) from 1925-1928, the arbitrator explained independence. Judge Huber stated, “Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.”

Independence refers to “political” independence and not “physical” independence from another State. Oppenheim, International Law, Vol. 1, 177-8 (2nd ed. 1912), explains: “Sovereignty as supreme authority, which is independent of any other earthly authority, may be said to have different aspects. As excluding dependence from any other authority, and in especial from the authority of the another State, sovereignty is independence. It is external independence with regard to the liberty of action outside its borders in the intercourse with other States which a State enjoys. It is internal independence with regard to the liberty of action of a State inside its borders. As comprising the power of a State to exercise supreme authority over all persons and things within its territory, sovereignty is territorial supremacy. As comprising the power of a State to exercise supreme authority over its citizens at home and abroad, sovereignty is personal supremacy. For these reasons a State as an International Person possesses independence and territorial and personal supremacy.”

Occupation does not extinguish independence/sovereignty, but rather it is protected and maintained under international law. U.S. Army FM-27-10, The Law of Land Warfare, acknowledges this. Chapter 6 covers occupation. Section 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.”

International Arbitration: Larsen vs. Hawaiian Kingdom (1999-2001)

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Many people are not familiar with dispute resolution under international law and the role the Permanent Court of Arbitration (PCA) plays in international relations.

Peace Palace

When the first International Peace Conference was convened in July 1899 in The Hague, Netherlands, the major States of the world were in attendance. Its first treaty—Convention for the Pacific Settlement of International Disputes, established a global institution for international dispute settlement called the Permanent Court of Arbitration. This international court predates the Permanent Court of International Justice established by the League of Nations from 1922-1946 and its successor the International Court of Justice (ICJ) established by the United Nations from 1946-present.

The PCA is not your conventional court that has permanent sitting judges, but rather it has a permanent secretariat called the International Bureau, which is headed by a Secretary General. After the PCA accepts disputes from parties, the Bureau facilitates the establishment of ad hoc Tribunals in order to resolve the disputes depending on the arbitration agreement between the parties and the applicable rules. The fundamental difference between a court with judges and a tribunal with arbitrators is that the arbitrators are selected by the parties based on their expertise in the area of the dispute. Judges may not be experts in areas of the dispute and therefore there is a need to rely on expert witnesses. Arbitration alleviates that requirement because the arbitrators themselves are the experts.

The PCA was initially limited to disputes between States that involved matters of public international law as well as arbitrating disputes over territorial sovereignty. By the 1930s, the PCA expanded its jurisdiction to include private parties that had a dispute with a State. One of these first cases involved a dispute between Radio Corporation of America, a private party, and China, being the State (RCA vs. China). Today, the jurisdiction of the PCA include disputes: (1) between two or more States; (2) a State and an international organization; (3) two or more international organizations; (4) a State and a private party; and (5) an international organization and a private party.

In 1999, a dispute arose between the Government of the Hawaiian Kingdom and a Hawaiian subject over the unlawful imposition of American laws in Hawaiian territory. The Hawaiian subject, Lance Larsen, was convicted under American laws and was incarcerated for 30 days, 7 of which were in solitary confinement. Mr. Larsen’s attorney, Ms. Ninia Parks, alleged that the Hawaiian Government was “negligent” by not taking affirmative steps to prevent the imposition of American laws in the Hawaiian Kingdom. She also alleged that the Hawaiian Government was a violation of its 1849 Treaty with the United States. Article 8 of the treaty states, “and each of the two contracting parties engage that the citizens or subjects of the other residing in their respective States shall enjoy their property and personal security, in as full and ample manner of their own citizens or subjects, of the subjects or citizens of the most favored nation, but subject always to the laws and statutes of the two countries respectively.”

After negotiations in Honolulu, an arbitration agreement was reached and on November 8, 1999, it was submitted to the PCA for acceptance. The arbitration agreement provided the allegations:

“(a) Lance Paul Larsen, a Hawaiian subject, alleges that the Government of the Hawaiian Kingdom is in continual violation of its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America, and in violation of the principles of international law laid [down] in the Vienna Convention on the Law of Treaties, 1969, by allowing the unlawful imposition of American municipal laws over claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom; and

(b) Lance Paul Larsen, a Hawaiian subject, alleges that the Government of the Hawaiian Kingdom is also in continual violation of the principles of international comity by allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.”

Tjaco_van_den_HoutAs part of the International Bureau’s due diligence into the status of the Hawaiian Kingdom as an independent State under international law, the PCA’s Secretary General Van Den Hout made a formal recommendation to David Keanu Sai, Agent for the Hawaiian Government, to provide a formal invitation to the United States to join in the arbitration proceedings. This would have one of three outcomes—first, the United States would dispute the existence of the Hawaiian Kingdom as a State and the PCA would terminate the proceedings, second, it could join the arbitration in order to answer Larsen’s allegations of violating his rights that led to his incarceration, or, third, it could refuse to join in the arbitration, but allow it to go forward.

John_CrookIn a conference call held in Washington, D.C., on March 3, 2000, Ninia Parksbetween Mr. John Crook, United States Assistant Legal Adviser for United Nations Affairs, Ms. Parks and Mr. Sai, the United States was formally invited to join in the arbitration. It wasn’t until a couple of weeks later that the United States Embassy in The Hague notified the PCA that the United States will not join in the arbitration, but asked permission of the Hawaiian Government and Mr. Larsen’s attorney to have access to all pleadings, transcripts and records. The United States took the third option and did not deny the existence of the Hawaiian Kingdom as a State.

After the PCA verified and recognized that the Hawaiian Kingdom did exist as a State under international law with a legitimate government and that Larsen is a Hawaiian subject, steps were then taken to form the Tribunal. Mr. Keoni Agard, Esquire, was appointed by Ms. Parks, on behalf of Mr. Larsen, and the Hawaiian Government to serve as the Appointing Authority to work with the PCA in order to secure the appointment of three arbitrators. As the Appointing Authority, Mr. Agard was given a list of arbitrators provided by the PCA for each of the parties to select. The Hawaiian Government selected Professor Christopher Greenwood, QC, and Ms. Parks selected Dr. Gavan Griffith, QC. These two arbitrators then recommended the appointment of a Presiding Arbitrator, Professor James Crawford, SC, which both parties agreed to.

Larsen Tribunal

The Hawaiian arbitration fell under the PCA’s jurisdiction as a dispute between a “State and a private party.” The dispute was not about the existence of the Hawaiian Kingdom as a State under international law, but rather centered solely on whether Larsen could sue the Hawaiian Government for negligence by allowing American laws to be imposed in the Hawaiian Kingdom that caused his incarceration. The Tribunal stated to the parties that in this dispute the United States is a necessary party in order for Mr. Larsen to maintain his suit against the Hawaiian Government. The procedural questions that were given to the parties to answer in its written pleadings is whether or not these proceedings can continue without the participation of the United States. The Tribunal cited three international court cases that came before the ICJ and focused on necessary third parties as the precedence—Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom and the United States), East Timor (Portugal v. Australia), and Certain Phosphate Lands in Nauru (Nauru v. Australia).

PCA_SaiAfter written pleadings were submitted, oral hearings were held at The Hague on December 7, 8, and 11, 2000, and the Arbitration Award was filed with the PCA on February 5, 2001. The court concluded that the United States was a necessary third party and without their participation in the arbitration proceedings, Mr. Larsen’s allegations of negligence against the Hawaiian Government could not move forward.

A common misunderstanding was that the dispute between Mr. Larsen and the Hawaiian Government centered on whether the Hawaiian Kingdom continues to exist as a State. It was not. The PCA recognized the continued existence of the Hawaiian Kingdom as a State because the United States, who claimed to have sovereignty over the Hawaiian Islands, did not refute the continued existence of the Hawaiian Kingdom when it had an opportunity to do so. The only claim that the United States had over the Hawaiian Islands was through American legislation and not a treaty. The PCA is very much aware that international law only allows annexation by treaty and not through a State’s municipal legislation.

Of significance in these international arbitration proceedings is that the Tribunal in its Arbitration Award acknowledged “that 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,” and the PCA recognized the continued existence of the Hawaiian Kingdom as a State in the twenty-first century.

To see the PCA’s explicit recognition of the Hawaiian Kingdom as a State go to the PCA Case Repository of Lance Larsen vs. The Hawaiian Kingdom, and scroll down to name of respondent, “The Hawaiian Kingdom (State),” who is represented by “Mr. David Keanu Sai, Agent, Mr. Peter Umialiloa Sai, First deputy agent, Mr. Gary Victor Dubin, Second deputy agent and counsel.”

International Court Recognizes The Hawaiian Kingdom as a State

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PCA CrawfordThe Permanent Court of Arbitration (PCA) has recently uploaded a Case Repository of current cases and past cases that came before the international court. Listed as one of the past cases that came before the PCA was Lance Larsen v. The Hawaiian Kingdom. The international arbitration began on November 8, 1999 and ended February 5, 2001.

The PCA explicitly recognized the Hawaiian Kingdom as a State and the acting Government as its representative in arbitration proceedings instituted by a Hawaiian subject, Lance Larsen. If the Hawaiian Kingdom did not exist today as a State under international law, and there was no lawful government representing the Hawaiian Kingdom, the case would have never been accepted by the PCA. This is also recognition that the Hawaiian Kingdom was never annexed by the United States, but rather occupied since the Spanish-American War in 1898.

The international court’s explicit recognition of the continued existence of the Hawaiian Kingdom as a State under international law and the acting Government is definitive and removes all doubt of Hawai‘i legal status under international law.

Larsen v. Kingdom

The tribunal concluded in its arbitral award that in order for Lance Larsen to maintain his suit against the acting Government, which he alleged was “in continual violation of its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America, and in violation of the principles of international laid down in the Vienna Convention on the Law of Treaties, 1969, by allowing the unlawful imposition of American municipal laws over claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom,” he needed the participation of the United States as an indispensable third party because it was the United States that allegedly violated his rights and not the Hawaiian Kingdom. His claim was that the Hawaiian Kingdom was negligent for allowing the imposition of American laws in the Kingdom in violation of the treaties.

https://vimeo.com/17007826

The arbitration tribunal was comprised of three highly respected experts in international law, and two the arbitrators, James Crawford and Christopher Greenwood were selected by the United Nations as judges on the ICJ. The United Nations selection is also recognition of the caliber of the arbitrators who served on the Tribunal in the Hawaiian arbitration.

Other international arbitration cases held at the PCA that was similar to the Hawaiian arbitration, being a dispute between a private entity and a State, include, Hulley Enterprises Limited vs. The Russian Federation (2005), Romak S.A. vs. The Republic of Uzbekistan (2006), and TCW, Inc. and Dominican Energy Holdings, L.P. vs. The Dominican Republic (2008).

The PCA was initially limited to arbitration between States, but has since evolved to include private parties against States. A dispute between private parties alone cannot access the PCA without the participation of a State. “Today the PCA provides services for the resolution of disputes involving various combinations of states, state entities, intergovernmental organizations, and private parties.” The United States was not only one of the signatory States to the 1899 Hague Convention, I, that established the international court, but it was also a party to arbitration cases at the PCA, The United States of America v. The United States of Mexico (1902), The United States of America vs. Venezuela (1909), Great Britain vs. The United States of America (1910), and The United States of America vs. The Netherlands (1925). The most recent arbitration at the PCA was The Republic of Ecuador vs. The United States of America (2011).

ICJ_Peace_Palace

The PCA is only open to disputes involving international law, which is the reason why a dispute between private parties cannot access the international court. The United Nations Charter created the International Court of Justice (ICJ) in 1945 and it is housed in the Peace Palace together with the PCA. Unlike the PCA, the ICJ limits its access to disputes between States and not disputes between a private entity and the State.

The PCA was established in 1899 when States from around the world met in The Hague, Netherlands, in order to codify the laws and customs of war, which was already accepted as customary international law. It’s first treaty—Hague Convention, I, established a permanent court of arbitration to be housed at The Hague. “With the object of facilitating an immediate recourse to arbitration for international differences, which it has not been possible to settle by diplomacy, the Signatory Powers undertake to organize a permanent Court of Arbitration (Article 20).”

The Knowledge Economy Blog Links to Hawaiian Kingdom

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Professor Adil Najam, Dean of The Pardee School for Global Studies at Boston University, has a blog The Knowledge Economy. In its October 30, 2015 edition, the Hawaiian Kingdom Blog is listed under “World” affairs. Dr. Sai will also be lecturing at The Pardee School of Global Studies on November 10, 2015. His lecture is titled Hawai‘i: An American State or a State under American Occupation.

Knowledge Economy Blog

Dr. Sai to Lecture at Boston University’s Pardee School of Global Studies

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Lecture Series “Beyond the Headlines” Boston University Pardee School of Global Studies presents: “Hawai’i: An American State or a State Under American Occupation?”

Dr. KEANU SAI_Pardee

Big Island Video News: Keanu Sai on Na‘i Aupuni, OHA and Cambridge

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Big Island Video News: Dr. Keanu Sai is a political scientist at the forefront of an emerging understanding of Hawaii as an existing Kingdom under U.S. occupation. In this lengthy interview, Sai talks about his recent trip to the University of Cambridge in the United Kingdom where he was invited to present a paper on Hawaii as a non-European power. He also sets the record straight on his involvement with the Office of Hawaiian Affairs and the letter that was sent to U.S. Secretary of State John Kerry, and the controversial Na’i Aupuni election of delegates to an upcoming Hawaiian nation-building ‘aha.

The paper that Dr. Sai presented at Cambridge was Hawaiian Neutrality: From the Crimean Conflict through the Spanish-American War.

Na‘i Aupuni (Native Hawaiian Convention): What it Is and What it’s Not

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An interview of Dr. Keanu Sai by Kale Gumapac, host of the show The Kanaka Express. The interview focuses on Na‘i Aupuni or the Native Hawaiian Convention from a political science, historical and academic standpoint.

https://vimeo.com/143056757

 

Academics Dispelling the Myths of the Hawaiian Kingdom through Research

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An interview of Professor Niklaus Schweizer and Ph.D. candidate Lorenz Gonschor from the University of Hawai‘i at Manoa by Kale Gumapac, host of the show The Kanaka Express. The interview is focuses on dispelling the untruths of the Hawaiian Kingdom that is a part of the research and classroom instruction at the University of Hawai‘i at Manoa.

https://vimeo.com/143006284

The Hawaiian Kingdom as a Non-European Power

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An interview of Dr. Keanu Sai and Ph.D. candidate Lorenz Gonschor by Dr. Lynette Cruz on Issues that Matter. The subject of the interview focused on the Hawaiian Kingdom as a non-European Power in the nineteenth century and its relationship with Japan.

https://vimeo.com/142326302

Fifteen Academic Scholars from around the World meet at Cambridge, UK

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cambridge-logoFrom September 10-12, 2015, fifteen academic scholars from around the world who were political scientists and historians came together to present papers on non-European powers at a conference/workshop held at the University of Cambridge, United Kingdom. Attendees of the conference were by invitation only and the papers presented at the conference are planned to be published in a volume with Oxford University Press.

The theme of the conference was Non-European Powers in the Age of Empire. These non-European countries included Hawai‘i, Iran, Turkey, China, Ethiopia, Japan, Korea, Thailand, and Madagascar. Dr. Keanu Sai was one of the invited academic scholars and his paper is titled “Hawaiian Neutrality: From the Crimean Conflict through the Spanish-American War.”

Cambridge Conference Attendees 2

Many of these scholars were unaware of the history of the Hawaiian Kingdom and its “full” membership in the family of nations as a sovereign and independent state. What stood out for them was the continued existence of the Hawaiian Kingdom because it was only the government that was illegally overthrown by the United States and not the Hawaiian state, which is the international term for country. The belief that Hawai‘i lost its independence was dispelled and that its current status is a state under a prolonged American occupation since the Spanish-American War.

What was a surprise was that the Hawaiian Kingdom was the only non-European Power to have been a co-equal sovereign to European Powers throughout the 19th century. All other non-European Powers were not recognized as full sovereign states until the latter part of the 19th century and the turn of the 20th century. During this time European Powers imposed their laws within the territory of these countries under what has been termed “unequal treaties.”

Since 1858, Japan had been forced to recognize the extraterritoriality of American, British, French, Dutch and Russian law operating within Japanese territory. According to these treaties, citizens of these countries while in Japan could only be prosecuted under their country’s laws and by their country’s Consulates in Japan called “Consular Courts.” Under Article VI of the 1858 American-Japanese Treaty, it provided that “Americans committing offenses against Japanese shall be tried in American consular courts, and when guilty shall be punished according to American law.” The Hawaiian Kingdom’s 1871 treaty with Japan also had this provision, where it states under Article II that Hawaiian subjects in Japan shall enjoy “at all times the same privileges as may have been, or may hereafter be granted to the citizens or subjects of any other nation.” This was a sore point for Japanese authorities who felt Japan’s sovereignty should be fully recognized by these states.

Emperor MeijiWhile King Kalakaua was visiting Japan in 1881, Emperor Meiji “asked for Hawai‘i to grant full recognition to Japan and thereby create a precedent for the Western powers to follow.” Kalakaua was unable to grant the Emperor’s request, but it was done by his successor Queen Lili‘uokalani. Hawaiian recognition of Japan’s full sovereignty and repeal of the Hawaiian Kingdom’s consular jurisdiction in Japan provided in the Hawaiian-Japanese Treaty of 1871, would take place in 1893 by executive agreement through exchange of notes.

Lili‘uokalani_3By direction of Her Majesty Queen Lili‘uokalani, R.W. Irwin, Hawaiian Minister to the Court of Japan in Tokyo sent a diplomatic note to Mutsu Munemitsu, Japanese Minister of Foreign Affairs on January 18, 1893 announcing the Hawaiian Kingdom’s abandonment of consular jurisdiction. Irwin stated:

“Her Hawaiian Majesty’s Government reposing entire confidence in the laws of Japan and the administration of justice in the Empire, and desiring to testify anew their sentiments of cordial goodwill and friendship towards the Government of His Majesty the Emperor of Japan, have resolved to abandon the jurisdiction hitherto exercised by them in Japan.

It therefore becomes my agreeable duty to announce to your Excellency, in pursuance of instructions from Her Majesty’s Government, and I now have the honour formally to announce, that the Hawaiian Government do fully, completely, and finally abandon and relinquish the jurisdiction acquired by them in respect of Hawaiian subjects and property in Japan, under the Treaty of the 19th August, 1871.

There are at present from fifteen to twenty Hawaiian subjects residing in this Empire, and in addition about twenty-five subjects of Her Majesty visit Japan annually. Any information in my possession regarding these persons, or any of them, is at all times at your Excellency’s disposal.

While this action is taken spontaneously and without condition, as a measure demanded by the situation, I permit myself to express the confident hope entertained by Her Majesty’s Government that this step will remove the chief if not the only obstacle standing in the way of the free circulation of Her Majesty’s subjects throughout the Empire, for the purposes of business and pleasure in the same manner as is permitted to foreigners in other countries where Consular jurisdiction does not prevail. But in the accomplishment of this logical result of the extinction of Consular jurisdiction, whether by the conclusion of a new Treaty or otherwise, Her Majesty’s Government are most happy to consult the convenience and pleasure of His Imperial Majesty’s Government.”

On April 10, 1894, Foreign Minister Munemitsu, responded, “The sentiments of goodwill and friendship which inspired the act of abandonment are highly appreciated by the Imperial Government, but circumstances which it is now unnecessary to recapitulate have prevented an earlier acknowledgment of you Excellency’s note.”

This dispels the commonly held belief among historians that Great Britain was the first state to abandon its extraterritorial jurisdiction in Japan under the Anglo-Japanese Treaty of Commerce and Navigation, which was signed on July 16, 1894. The action taken by the Hawaiian Kingdom did serve as “precedent for the Western powers to follow.”

Dr. Sai encourages everyone to read his paper “Hawaiian Neutrality: From the Crimean Conflict through the Spanish-American War” that was presented at Cambridge, which covers Hawai‘i’s political history from the celebrated King Kamehameha I to the current state of affairs today, and the remedy to ultimately bring the prolonged occupation to an end.

Were There Two American Occupations of Hawai‘i or Just One?

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Camp McKinley 1898

There is a fundamental question regarding the American occupation of the Hawaiian Kingdom that rests on two positions. The first proposition is that the American occupation began on January 17, 1893 at the time of the illegal overthrow of the Hawaiian “government” and ended when American troops were ordered to vacate Hawaiian territory on April 1, 1893 by Presidential investigator James Blount. And that a second American occupation began on August 12, 1898 during the Spanish American War which has lasted to date. The second proposition is that the American occupation began on January 17, 1893 and has remained a belligerent occupation ever since.

What is fundamental and crucial in precisely determining this question of occupation is that occupation triggers the law of occupation, which follows an invasion. When occupation comes to an end so do the laws occupation. This is separate and distinct from the laws and customs of war triggered by an invasion, and the law of occupation that mandates the occupier to provisionally administer the laws of the occupied State under Section III (Articles 42-56) of the 1899 Hague Convention, II, which was later superseded by Section III (Articles 42-56) of the 1907 Hague Convention, IV, and the 1949 Geneva Convention, IV.

At the center of occupation is “effectiveness.” In other words, territory is only occupied when it comes under the effective control of a foreign state’s military. For without effectiveness, the occupier would not be able to carry out the duties and obligations of an occupier under international law in the administration of the laws of the occupied State.

Although an invasion of territory would trigger the laws and customs of war on land, it does not simultaneously trigger the laws of occupation, because the invasion may be transient and ongoing. But when the invader becomes fixed and establishes its authority it triggers the laws of occupation. Article 42 of the 1899 Hague Convention, II, which was considered customary international law at the time, states that, “Territory is considered occupied when it is actually place under the authority of the hostile army. The occupation applies only to the territory where such authority is established, and in a position to assert itself.” Article 42 of the 1907 Hague Convention, IV, is relatively the same except for minor changes in wording.

At first glance, Article 42 refers to the presence of a “hostile army.” So if we were to look at the U.S. troops that were present in Honolulu on January 17, 1893, we need to determine at what point were they in a position of established authority. In his message of December 18, 1893, President Cleveland apprised the Congress that when U.S. troops landed in Honolulu on Monday January 16 it was an invasion. Cleveland stated, “The men, upwards of 160 in all, were supplied with double cartridge belts filled with ammunition and with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies. This military demonstration upon the soil of Honolulu was of itself an act of war.” Cleveland further states that, “the military occupation of Honolulu by the United States on the day mentioned was wholly without justification, either as an occupation by consent or as an occupation necessitated by dangers threatening American life and property.”

The question, however, from a strictly legal standpoint, did the U.S. troops establish its authority under the law of occupation, and, if so, to what extent did this authority extend regarding territorial control. The troops were occupying a very small defensive position between two buildings—Music Hall and Arian Hall, on Mililani Street. Cleveland explained to the Congress,

Cleveland“The United States forces being now on the scene and favorably stationed, the committee proceeded to carry out their original scheme. They met the next morning, Tuesday, the 17th, perfected the plan of temporary government, and fixed upon its principal officers, ten of whom were drawn from the thirteen members of the Committee of Safety. Between one and two o’clock, by squads and by different routes to avoid notice, and having first taken the precaution of ascertaining whether there was any one there to oppose them, they proceeded to the Government building almost entirely without auditors. It is said that before the reading was finished quite a concourse of persons, variously estimated at from 50 to 100, some armed and some unarmed, gathered about the committee to give them aid and confidence. This statement is not important, since the one controlling factor in the whole affair was unquestionably the United States marines, who, drawn up under arms and with artillery in readiness only seventy-six yards distant, dominated the situation.”

US troops 1893

Cleveland was not explaining an occupation that would invoke the law of occupation, but rather an invasion and regime change. But on February 1, 1893, the United States diplomat, John Stevens, declared the Hawaiian Islands to be an American protectorate. So from a position of international law it would be February 1 that would trigger the duty and obligations of the law of occupation because it would appear that this date is where the United States gained effective control of foreign territory and established its authority over it.

However, if you add to the mix the so-called Provisional Government it presents a very different picture. First, the President told Congress that the provisional government was neither a de jure government, which is the lawful government, nor a de facto government, which by definition under international law is a successful revolution. A de facto government has to be in effective control of all the governmental machinery of the government it is revolting against, before it can be considered de facto, because when it is not it is still in a state of revolt and the treason statute would apply. This is why the United States of America was not considered a de facto government until after King George III signed the Treaty of Paris on September 3, 1783, that ended the seven year revolt. When the British colonies declared their independence on July 4, 1776 they became insurgents who committed treason to the British government.

Cleveland addressed this requirement of international law when he stated to the Congress, “That it was not in such possession of the Government property and agencies as entitled it to recognition is conclusively proved by a note found in the files of the Legation at Honolulu, addressed by the declared head of the provisional government to Minister Stevens, dated January 17, 1893, in which he acknowledges with expressions of appreciation the Minister’s recognition of the provisional government, and states that it is not yet in the possession of the station house (the place where a large number of the Queen’s troops were quartered), though the same had been demanded of the Queen’s officers in charge. Nevertheless, this wrongful recognition by our Minister placed the Government of the Queen in a position of most perilous perplexity. On the one hand she had possession of the palace, of the barracks, and of the police station, and had at her command at least five hundred fully armed men and several pieces of artillery. Indeed, the whole military force of her kingdom was on her side and at her disposal, while the Committee of Safety, by actual search, had discovered that there were but very few arms in Honolulu that were not in the service of the Government. In this state of things if the Queen could have dealt with the insurgents alone her course would have been plain and the result unmistakable. But the United States had allied itself with her enemies, had recognized them as the true Government of Hawaii, and had put her and her adherents in the position of opposition against lawful authority.”

The insurgents seized control of the de jure Government of the Queen under the protection of U.S. troops, and thereafter compelled everyone in Government to sign oaths of allegiance. By unlawfully seizing the reigns of government in violation of international law, it does not transform itself into a de jure government. It is a state of emergency born out of a violation of international law. Therefore, if the so-called Provisional Government was not a government at all, but rather enemies of the State who committed high treason under Hawaiian law, then what would it be classified as for the purposes of international law since the United States was its creator. Yes it could be called a puppet of the United States, but this does not mean anything under international law and the law of occupation.

Under international law, the Provisional Government would be classified as an American “militia” illegally established on Hawaiian territory by the United States. Article 1 of the 1899 Hague Convention, II, states, “The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions: 1. To be commanded by a person responsible for his subordinates; 2. To have a fixed distinctive emblem recognizable at a distance; 3. To carry arms openly; and 4. To conduct their operations in accordance with the laws and customs of war.” This Article remained unchanged in the 1907 Hague Convention, IV.

There can be no doubt that the American militia called the Provisional Government began to be in effective control as a result of U.S. intervention, but this effectiveness did not reach its peak on January 17. It was a gradual escalation of effectiveness that began to grow from the city of Honolulu to the outlying government offices on the outer islands. But when the U.S. diplomat established protectorate status on February 1, this could be definitive as to when the law of occupation was triggered. Up to this point it was an invasion and not an occupation for the purposes of international law. Although U.S. troops departed Hawaiian territory on April 1, 1893, the American militia maintained itself through the hiring of mercenaries from the United States.

On July 4, 1894, the American militia changed its name to the Republic of Hawai‘i and continued to have government officers and employees sign oaths of allegiance under threat of American mercenaries who continued to be employed by the insurgency. The proclamation of the insurgents stated, “it is hereby declared, enacted and proclaimed by the Executive and Advisory Councils of the Provisional Government and by the elected Delegates, constituting said Constitutional Convention, that on and after the Fourth day of July, A.D. 1894, the said Constitution shall be the Constitution of the Republic of Hawaii and the Supreme Law of the Hawaiian Islands.”

On April 30, 1900, the U.S. Congress by statute changed the name of the American militia called the Republic of Hawai‘i to the Territory of Hawai‘i. The Territorial Act provided, that “the laws of [the Republic of Hawai‘i] not inconsistent with the Constitution or laws of the United States or the provisions of this Act shall continue in force,” and that “all persons who were citizens of the Republic of Hawaii on August twelfth, eighteen hundred and ninety-eight, are hereby declared to be citizens of the United States and citizens of the Territory of Hawai‘i.”

On March 18, 1959, the U.S. Congress again by statute changed the name of the American militia called the Territory of Hawai‘i to the State of Hawai‘i. The Statehood Act provided that all “Territorial laws in force in the Territory of Hawaii at the time of its admission into the Union shall continue in force in the State of Hawaii, except as modified or changed by this Act or by the constitution of the State, and shall be subject to repeal or amendment by the Legislature of the State of Hawaii.” The State of Hawai‘i today is an American militia and not a government.

Therefore, when we add the American militia that was formerly called the Provisional Government, the Republic of Hawai‘i, the Territory of Hawai‘i and now the State of Hawai‘i, into the equation and not just the physical presence and effective control of U.S. troops whether in 1893 or 1898, international law would recognize the beginning of the belligerent occupation to be February 1, 1893, which continues to date. The American occupation of the Hawaiian Kingdom is the longest ever in the history of international relations that emerged since the Treaty of Westphalia in 1648.

Canada Responds to War Crime Complaint and Japanese Consulate receives War Crime Complaint against TMT

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Royal Canadian Mounted Police Responds to War Crime Complaint by Protector of Mauna Kea and Japanese Consulate Receives War Crime Complaint against TMT

HONOLULU (Sep. 11, 2015) – In a letter dated July 7, 2015, attorney Dexter Kaiama was notified by the Superintendent of the Sensitive and International Investigations National Division of the Royal Canadian Mounted Police (RCMP) that their Department of Justice’s War Crime Program had reviewed the evidence of war crimes alleged to have been committed on the summit of Mauna Kea. The RCMP concluded, at that time, it did not have “jurisdiction over the issues brought forward based on the requirements of section 8 of the Crimes Against Humanity and War Crimes act.”

Section 8 states the RCMP would have jurisdiction if the alleged perpetrator “was a Canadian citizen or was employed by Canada in a civilian or military capacity [section 8(a)(i)];” or if the alleged victim “was a Canadian citizen [section 8(a)(iii)].” The July 7, 2015 RCMP response did not refuse jurisdiction on grounds that there is no armed conflict and that Hawai‘i is a part of the United States.

On May 13, 2015, Kaho’okahi Kanuha, who was accompanied by Dr. Keanu Sai, Ph.D., filed a war crime complaint with the RCMP in Ottawa, Canada. On behalf of his client, Attorney Kaiama drafted the complaint for Mr. Kanuha and Dr. Sai provided a report on the status of Hawai‘i as an independent and sovereign state under international law that has been under an illegal and prolonged occupation by the United States. The war crimes that were reported were destruction of property, unlawful confinement, and denial of a fair and regular trial.

On August 12, 2015, Mr. Kaiama submitted a response to the RCMP, where he stated, “While my client is not a Canadian citizen, the alleged perpetrators of war crimes committed against him stemming from the unlawful arrest and confinement of his person on the summit of Mauna Kea does fulfill the requirement under section 8(a)(i). This section provides that persons outside of Canada may be prosecuted for war crimes if they were ‘employed by Canada in a civilian or military capacity.’”

The August 12, 2015 response provided that “TMT hired the Honolulu based law firm Watanabe Ing LLP to represent them in Hawai‘i and is primarily responsible for the war crimes committed against my client by orchestrating and ordering the unlawful detainment carried out by State of Hawai‘i enforcement officers,” and that “James Douglas Ing is the primary attorney in charge of TMT matters on the summit of Mauna Kea.” The submitted response also identified others employed in a civilian capacity by the Canadian component of TMT, “the CEO and President of Goodfellow Bros, Inc., J. Stephen Goodfellow, and Chad Goodfellow, respectively, who was hired as the primary contractor for construction of the telescope on the summit of Mauna Kea. Other civilians included are the employees of Goodfellow, Inc.”

In his response, Mr. Kaiama also identified additional perpetrators meeting the requirements of Section 8 of the Canadian Crimes Against Humanity and War Crimes Act including those “individuals operating in a military capacity, and by direction of Douglas Ing in a civilian capacity, include, State of Hawai‘i armed force Governor David Ige, Attorney General Doug Chin, Deputy Attorney Generals Linda Chow and Julie China, and Director of the Department of Land and Natural Resources Suzanne D. Case, Hawai‘i County Police Officer Captain Richard Sherlock, Lieutenant DareenHorio, Supervising Officer Nelson Acob, Reporting Officer James Pacheco, and arresting Officer Kelsey K. Kobayashi.”

On August 24, 2015 Martin Bedard, Inspector in Charge of the War Crimes Section in Ottowa, confirmed receipt of Mr. Kaiama’s August 12, 2015 response “containing additional allegations” and that the Section is would be (“are and will be”) considering the additional allegations contained in said response.

Attorney Kaiama, representing Mr. Kanuha (and additional presently unnamed victims), also filed a complaint with the Japanese Consul General in Honolulu, Hawai’i on August 14, 2015 to report the violation of international laws in the unlawful detention and deprivation his clients rights to a fair and regular trial, and the destruction of public property during occupation carried out by TMT International Observatory, LLC, (TMTIO) upon the summit of Mauna a Wakea.

Through the filed Complaint, the Japanese Consul General was apprised of: (a) the comprehensive analysis of the international armed conflicts between the Hawaiian Kingdom and the United States from January 16, 1893 to April 1, 1893 and the current armed conflict since August 12, 1898; (b) Japan’s partnership in TMTIO through the Natural Institutes of Natural Sciences (NINS); (c) the destruction of public property during occupation upon the summit of Mauna a Wakea, beginning in 1970, and including Japan’s Subaru Telescope built in 1999; and (d) identification of the war crimes committed, and perpetrators of the reported violations.

The Complaint filed with the Japanese Consul General invoked Japan’s obligations to investigate the reported violations and initiate criminal proceedings under Article IV of the 1871 Hawaiian-Japanese Treaty which provides:

“It is hereby stipulated that the Hawaiian Government and its subjects, upon terms and conditions, will be allowed free and equal participation in all privileges, immunities and advantages that may have been or may hereafter be granted by His Majesty the Tenno of Japan, to the Government, citizens or subjects of any other nation.”

Click the following links to download:

CONTACT:
Dexter Kaiama
Email: cdexk@hotmail.com
Cell: (808) 284-5675

Dr. Sai to Present at the University of Cambridge, UK

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From September 10-12, 2015, the United Kingdom’s University of Cambridge’s Centre for Research in the Arts, Social Science and Humanities will be holding an academic conference “Sovereignty and Imperialism: Non-European Powers in the Age of Empire.” From the conference’s website:

Soverignty and Imperialism Conf“In the heyday of empire, most of the world was ruled, directly or indirectly, by the European powers. On the eve of the First World War, only a few non-European states had maintained their formal sovereignty: Abyssinia (Ethiopia), China, Japan, the Ottoman Empire, Persia (Iran), and Siam (Thailand). Some others kept their independence for a while, but then succumbed to imperial powers, such as Hawaii, Korea, Madagascar, and Morocco. Facing imperialist incursion, the political elites of these countries sought to overcome their political vulnerability by engaging with the European powers and seeking recognition as equals.

The conference ‘Sovereignty and Imperialism: Non-European Powers in the Age of Empire’ will explore how diplomats, military officials, statesmen, and monarchs of the independent non-European states struggled to keep European imperialism at bay. It will address four major aspects of the relations of these countries with the Western imperial powers: armed conflict and military reform (Panel 1); capitulations, unequal treaties, and subsequent engagement with European legal codes (Panel 2); royalty and courts (Panel 3); and diplomatic encounters (Panel 4). Bringing together scholars from across the world, the conference will be the first attempt to provide comparative perspectives on the non-European powers’ engagement with the European empires in the era of high imperialism.”

Dr. Keanu SaiDr. David Keanu Sai was 1 of 15 scholars from across the world that was invited to present their research and expertise that centers on non-European States. Dr. Sai’s research focuses on the Hawaiian Kingdom as an independent and sovereign state and its continuity to date under an illegal and prolonged occupation by the United States of America since the Spanish-American War. He will be presenting a paper titled “Hawaiian Neutrality: From the Crimean Conflict to the Spanish-American War.” The following is Dr. Sai’s abstract for his paper:

“Only a decade since the Anglo-French proclamation of November 28, 1843 recognizing the Hawaiian Islands as an independent and sovereign State, the Hawaiian Kingdom would find itself being a participant State, during the Crimean conflict, in the abolishment of privateering and the formation of international rules protecting neutral goods. This set the stage for Hawaiian authorities to secure international recognition of its neutrality. Unlike States that were neutralized by agreement between third States, e.g. Luxembourg and Belgium, the Hawaiian Kingdom took a proactive approach to secure its neutrality through diplomacy and treaty provisions by making full use of its global location, which undoubtedly was double-edged. On the one hand, Hawai‘i was a beneficial asylum, being neutral territory, for all States at war in the Pacific Ocean, while on the other hand it was coveted by the United States for its military and strategic importance. This would eventually be revealed during the Spanish-American War when the United States deliberately violated the neutrality of the Hawaiian Islands and occupied its territory in order to conduct military campaigns in the Spanish colonies of Guam and Philippines, which was similar, in fashion, to Germany’s occupation of Luxembourg and the violation of its neutrality when it launched attacks into France during the First World War. The difference, however, is that Germany withdrew after four years of occupation, whereas the United States remained and implemented a policy of ‘denationalization’ in order to conceal the prolonged occupation of an independent and sovereign State. This paper challenges the commonly held belief that Hawai‘i lost its independence and was incorporated into the United States during the Spanish-American War. Rather, Hawai‘i remains a State by virtue of the same positive rules that preserved the independence of the occupied States of Europe during the First and Second World Wars.”

Hawai‘i’s History, International Law and Global Support with Aloha

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On August 5, 2015, a panel was on Hawai‘i’s history and international law was held at the Wailuku Civic Center, Island of Maui. The panel was moderated by Kale Gumapac and the panelist included Professor Kaleikoa Ka‘eo, University of Hawai‘i Maui College, Dr. Keanu Sai, University of Hawai‘i Windward Community College, Kaho‘okahi Kanuha, teacher at Punanaleo o Kona, and Dexter Ka‘iama, attorney at law. The organizer of the event was Ku‘uipo Naone.

Allegations of War Crimes Against New Zealand Citizen in Hawai‘i

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Mera Lee-Penehira

Dr. Mera Lee-Penehira, from the University of Auckland, has this week lodged a criminal complaint with Attorney General Christopher Finlayson QC, under the International Crimes and International Criminal Court Act 2000.

“The U.S. unilaterally seized the islands of Hawai‘i back in 1898 for military interests during the Spanish-American war, and have remained there as illegal occupiers ever since. This is about acknowledging and righting the wrongdoings of the U.S. in Hawai’i”, says Dr. Lee-Penehira.

A recent visit from leading political scientist Dr. Keanu Sai of the University of Hawai’i who met with tribal and political leaders, has brought to the fore the illegal occupation of Hawai’i, and the implications for New Zealand. He states that, “In 2001, the Permanent Court of Arbitration at The Hague, acknowledged that, 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. By virtue of the 1851 treaty between the Hawaiian Kingdom and the British Crown, as well as our connection as peoples of the Pacific, New Zealand citizens have a special relationship with Hawai‘i.”

Dr. Lee-Penehira, has been to Hawai’i on a number of occasions in recent years, and last month visited Mauna a Wakea, a sacred site at the centre of contention between the U.S. government and Native Hawaiians. The planned construction of the world’s largest telescope, the TMT project, on this sacred site, has received much media attention of late and many New Zealand citizens are concerned about this issue.

Marama DavidsonMarama Davidson, member of Maori women’s political advocacy group Te Whare Pora Hou states, “Protectors of Mauna a Wakea have been occupying the sacred ancestral mountain on the island of Hawai‘i for over 120 days now, to prevent the construction of this telescope. We stand in solidarity with the protectors in efforts to stop this destruction. This is a direct attack on the physical, spiritual and cultural integrity of the maunga, and the wellbeing of both the environment and people.”

In lodging the complaint Dr Lee-Penehira is invoking her right as a New Zealand citizen under the 1851 treaty, “We need to challenge everything the U.S. government does in Hawai‘i, because on the basis of law, it is quite simply wrong. The historical documentation is clear, that the Hawaiian Kingdom continues to exist under an illegal occupation by the U.S. and that the laws of occupation must be complied with. As a victim of war crimes committed in Hawai‘i, this cannot be allowed to continue to take place with impunity.”

According to the complaint, Dr. Lee-Penehira states that she has suffered grave harm and calls upon the New Zealand Attorney General to “initiate an immediate investigation into the private organization called the State of Hawai‘i for the war crime of pillaging under the guise of taxation in accordance with 11(2)(b) of the International Crimes and International Criminal Court Act 2000 and fraud. The so-called taxes were collected under what the State of Hawai‘i calls a General Excise Tax (GET) at 4.712% while on the island of O‘ahu that includes a 0.546% “County Tax” and 4.166% on the other islands, and a Transient Accommodations Tax, also called a Hotel Room Tax, at 9.25%. The County Tax is deposited with the City and County of Honolulu, Island of O‘ahu.”

She also states in her complaint, “When a car is rented at the State of Hawai‘i’s Honolulu International Airport, there is a State of Hawai‘i GET at 4.712%, a Highway Surcharge at $3.00 a day, a Vehicle Registration fee between $0.35 and $1.45 a day, and an Airport Concession Recovery Tax at 11.1%. Except for the GET, the revenues collected for rental cars are deposited with the State of Hawai‘i Department of Transportation—Highway and Airport Divisions. Although the GET is levied on businesses for doing business in Hawai‘i, the State of Hawai‘i allows these businesses to pass those extra taxes on to the consumer of all goods in Hawai‘i.”

The alleged war crimes at the centre of the complaint include both unlawful taxation by the State of Hawai‘i, and the destruction of property by the State of Hawai’i for allowing the construction of telescopes on the summit of Mauna a Wakea.

Ms. Davidson supports the complaint saying, “These allegations of war crimes committed in Hawai‘i are very serious, and if true will have a profound effect on all New Zealanders as well as the Trans Pacific Partnership negotiations that are ironically taking place this week in Hawai‘i. It is now incumbent on New Zealand authorities to either prove that the Hawaiian Kingdom does not exist under international law and that there is no Hawaiian-British treaty, or initiate a criminal investigation into the allegations of war crimes committed against a New Zealand citizen.”