Separating Politics from Law and the Termination of the Pearl Harbor Convention

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Many people confuse politics with law. Both terms are different, but they do work together in the governance of an independent State. According to the 6th edition of Black’s Law Dictionary, politics is the “science of government; the art or practice of administering public affairs,” and the term political pertains to the “exercise of the functions vested in those charged with the conduct of government.” Law on the other hand, according to Black’s Law, “is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force,” and “must be obeyed and followed” because it “is a solemn expression of the will of the supreme power of the State.”

From politics stem policies, which, according to Black’s Law, are “the general principles by which a government is guided in its management of public affairs.” The South African Community Organisers Toolbox explains that a “policy outlines what a government ministry hopes to achieve and the methods and principles it will use to achieve them. It states the goals of the ministry. A policy document is not a law but it will often identify new laws needed to achieve its goals….Laws set out standards, procedures and principles that must be followed. If a law is not followed, those responsible for breaking them can be prosecuted in court.”

In other words, laws provide the framework for politics and policies to work and not the other way around. For independent States, there are two types of laws that frame governance at the international level and at the national level. There is public international law, which, according to the American Law Institute, is “the law of the international community of states,” that consists of “specific norms and standards, and largely in practice, international law functions between states, as represented by their governments.” International law is comprised of customary law, treaties, certain principles of law found in municipal laws of States that are universal, and the writings of scholars on certain topics.

The other type of law applies within the boundaries of the State called municipal laws. These laws are comprised of a written or unwritten constitution, statutes enacted by a State’s legislature, and decisions made by a State’s highest court if there is no statute covering a particular topic. The Hawaiian Kingdom is a common law country similar in function to the United Kingdom and its municipal laws stem from the 1864 Constitution, as amended, statutes enacted by the Legislative Assembly, and the decisions made by the Supreme Court. Under the law of occupation, laws can be proclaimed by the government of the occupied State while the legislature is out of session as a result of the occupation whether as a government in exile or in situ.

When the Hawaiian government was restored in 1997 by a Regency in situ under Hawaiian constitutional law and the doctrine of necessity, its policy was laid out in a strategic plan of three phases: phase 1—verification of the Hawaiian Kingdom as an independent State and subject of international law; phase 2—exposure of the Hawaiian Kingdom as an independent State; and phase 3—restoring the Hawaiian Kingdom to its former status before the American occupation began. The strategic plan lays out the policy of the Council of Regency that outlines what it “hopes to achieve and the methods and principles it will use to achieve them.” The Council of Regency’s primary function is to protect the population of the Hawaiian Kingdom and to ensure that the United States and the State of Hawai‘i comply with the law of occupation in order to eventually bring the occupation to an end.

Within each of the three phases there are laws that frame the approach of the Council. Phase 1 was achieved by treaty law at the Permanent Court of Arbitration (PCA) in Larsen v. Hawaiian Kingdom. Before the PCA could establish an arbitral tribunal to resolve the dispute between Larsen and the Hawaiian Kingdom, it first needed to have institutional jurisdiction. In the treaty that formed the PCA (1907 Convention), Article 47 states, “The jurisdiction of the Permanent Court may, within the conditions laid down in the regulations, be extended to disputes between non-Contracting Powers or between Contracting Powers and non-Contracting Powers, if the parties are agreed on recourse to this tribunal.” The term Powers refers to independent States. The PCA concluded that the Hawaiian Kingdom is a “non-Contracting Power” to the treaty. The PCA received the notice of arbitration on November 8, 1999, and after concluding it had institutional jurisdiction it established the arbitral tribunal on June 9, 2000. These proceedings came to an end when the Award was issued by the arbitral tribunal on February 5, 2001.

The action taken by the PCA was not political but rather legal. In other words, the PCA did not have any discretion or a choice as to whether to accept or not accept the dispute under its jurisdiction. It was a matter of treaty law. The continued existence of the Hawaiian Kingdom as an independent State, according to the civil law system of Europe, is a “legal fact” that led to the “legal act” of the PCA to accept the dispute under article 47 of the 1907 Convention.

Phase 2 is being achieved through both international law and the municipal laws of the Hawaiian Kingdom. As Professor Federico Lenzerini pointed out in his legal opinion, “the Council of Regency possesses the constitutional authority to temporarily exercise the Royal powers of the Hawaiian Kingdom,” and that it “has the authority to represent the Hawaiian Kingdom as a State, which has been under a belligerent occupation by the United States of America since 17 January 1893, both at the domestic and international level.”

The proclamations made by the Council of Regency is its exercise of legislative authority under Hawaiian municipal laws, which is allowable under international law and the law of occupation. And its most recent proclamation of October 20, 2023, pronouncing the termination of the 1875 Commercial Reciprocity Treaty and its 1884 Supplemental Convention is its exercise of authority as a treaty partner with the United States under international law. The Hawaiian Kingdom, by its Council of Regency, being a treaty partner is an indisputable “legal fact,” and the notice of termination by virtue of Article 1 of the 1884 Supplemental Convention is a “legal act” with consequences under international law.

For the United States to disregard the notice of termination, as a matter of treaty law, requires it to publicly rebuke the existence of the Hawaiian Kingdom as a State and the Council of Regency as its government. This is an impossible task.

The reason why it is impossible is because during the arbitral proceedings at the PCA, the United States explicitly acknowledged the Hawaiian Kingdom as a non-Contracting State to the 1907 Convention and the Council of Regency as its government. In its case depository on its website, the PCA stated the Hawaiian Kingdom to be a “State,” and Lance Larsen a “Private entity.” The PCA described the case 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.

An important note in the above case description is that the PCA acknowledges that the Hawaiian Kingdom is a treaty partner with the United States in the 1849 Treaty of Friendship, Commerce and Navigation. This treaty has not been terminated by either the Hawaiian Kingdom or the United States. Article XVI states:

The present treaty shall be in force from the date of the exchange of the ratifications for the term of ten years, and further, until the end of twelve months after either of the contracting parties shall have given notice to the other of its intention to terminate the same, each of the said contracting parties reserving to itself the right of giving such notice at the end of the said term of ten years, or at any subsequent term.

Additional evidence is the executive agreement between the Council of Regency and the United States granting them access to the pleadings and records of the case, and the PCA Annual Reports from 2001-2011, which the PCA Administrative Council publishes. In Annex 2 of its 2001 Annual Report, it stated that the Larsen v. Hawaiian Kingdom arbitration was established “Pursuant to article 47 of the 1907 Convention (article 26 of the 1899 Convention).” All Contracting States that have diplomatic posts in the Netherlands sit as members of the Administrative Council that meet at the PCA, which includes the United States.

The termination of the Treaty and its Supplemental Convention is not subject to negotiation with the United States. Rather, the treaties themselves were the subject of negotiations and once both countries ratified the treaties it became international law. Termination that is provided by a treaty provision becomes self-executing according to the terms of the treaty. For termination of the treaty, the only requirement is for the Hawaiian Kingdom to provide notification of its intent to terminate to the United States, and once the United States receives the notice twelve months starts.

The United States, however, does have a provision to terminate a treaty that is first subject to negotiation and mutual agreement. This treaty provision concerns Guantanamo Bay, Cuba. In 1903, the newly independent State of Cuba leased Guantanamo Bay to the United States to build a Naval Station by entering into two international agreements. In the 1934 Treaty these agreements were acknowledged, and the terms of termination were explicitly stated in Article III, which states:

Until the two contracting parties agree to the modification or abrogation of the stipulations of the agreement in regard to the lease to the United States of America of lands in Cuba for coaling and naval stations signed by the President of the Republic of Cuba on February 16, 1903, and by the President of the United States of America on the 23d day of the same month and year, the stipulations of that agreement with regard to the naval station of Guantanamo shall continue in effect. The supplementary agreement in regard to naval or coaling stations signed between the two Governments on July 2, 1903, also shall continue in effect in the same form and on the same conditions with respect to the naval station at Guantanamo. So long as the United States of America shall not abandon the said naval station of Guantanamo or the two Governments shall not agree to a modification of its present limits, the station shall continue to have the territorial area that it now has, with the limits that it has on the date of the signature of the present Treaty.

What this treaty provision means is that there is no time limit for the United States’ lease of Guantanamo Bay, and the only way to terminate the lease agreement is that both the United States and Cuba must agree beforehand. The United States history has shown that it will not give its consent to terminate the lease of Guantanamo Bay Naval Station because it is in their self-interest to maintain the base despite any objection made by the Cuban government. This treaty provision has become known as Cuba’s “legal blackhole.” This is not the case for the United States naval station at Pearl Harbor.

U.S. Troops to Withdraw from the Hawaiian Islands by October 26, 2024

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In 1875, a Commercial Reciprocity Treaty was entered into between the Hawaiian Kingdom and the United States that was to last for seven years. In 1884, a Supplemental Convention extended the duration of the commercial treaty for another seven years with the express condition that the United States was granted exclusive access to Pearl Harbor. Article II of the Supplemental Convention states:

His Majesty the King of the Hawaiian Islands grants to the Government of the United States the exclusive right to enter the harbor of Pearl River, in the Island of Oahu, and to establish and maintain there a coaling and repair station for the use of vessels of the United States, and to that end the United States may improve the entrance to said harbor and do all other things needful to the purpose aforesaid.

The Supplemental Convention came into effect in 1887 after ratifications were exchanged and would last for seven years and further until “either of the High Contracting Parties shall give notice to the other of its wish to terminate the same,” where termination would commence twelve months after the notification is received by the other High Contracting Party. Although the Hawaiian government was unlawfully overthrown by the United States on January 17, 1893, the Hawaiian Kingdom as a State under international law continued to exist. In 1997, the Hawaiian Kingdom government was restored as a Regency serving in the absence of a Monarch.

On October 20, 2023, the Hawaiian Kingdom, by its Council of Regency, proclaimed the termination of the 1875 Commercial Reciprocity Treaty and its 1884 Supplemental Convention in accordance with Article I of the said Supplemental Convention. The following day, a notice of termination was sent, by courier United States Postal Service, to Secretary of State Antony J. Blinken. The notice of termination was received by the United States Department of State on 26 October 2023 at 5:47am ET, which consequently triggered the tolling of twelve months after which the Commercial Reciprocity Treaty and its Supplemental Convention would terminate.

The reasoning behind the notice of termination was that the United States in its unlawful and prolonged military occupation of the Hawaiian Kingdom since 17 January 1893 has exploited its use of Pearl Harbor by establishing military bases and facilities throughout the Hawaiian Islands under the Indo-Pacific Command of the U.S. Department of Defense in violation of the Article 1 of the 1907 Hague Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land. Although the Hawaiian Kingdom is not a Contracting State to the 1907 Hague Convention (V), it is mere codification of nineteenth century customary international law. On April 7, 1855, King Kamehameha IV proclaimed the foreign policy of the Kingdom:

My policy, as regards all foreign nations, being that of peace, impartiality and neutrality, in the spirit of the Proclamation by the late King, of the 16th May last, and of the Resolutions of the Privy Council of the 15th June and 17th July, I have given to the President of the United States, at his request, my solemn adhesion to the rule, and to the principles establishing the rights of neutrals during war, contained in the Convention between his Majesty the Emperor of all the Russias and the United States, concluded in Washington on the 22nd July last.

This policy of neutrality remained unchanged throughout the nineteenth century. Furthermore, the policy of neutrality by the Hawaiian Kingdom as a Neutral Power were inserted as treaty provisions in the Hawaiian-Swedish/Norwegian Treaty of 1852, the Hawaiian-Spanish Treaty of 1863, and the Hawaiian-German Treaty of 1879. In its treaty with Sweden/Norway, Article XV states, “His Majesty the King of Sweden and Norway engages to respect in time of war the neutral rights of the Hawaiian Kingdom, and to use his good offices with all other powers, having treaties with His Majesty the King of the Hawaiian Islands, to induce them to adopt the same policy towards the Hawaiian Kingdom.”

As a result of the termination of the treaty and its convention, all United States military forces in the Hawaiian Islands will be withdrawn in twelve months by 5:47am ET on October 26, 2024. On the withdrawal, the Council of Regency proclaimed:

And, We do require that when the United States has received this notice of termination, it shall, prior to the expiration of twelve months in accordance with Article I of the 1884 Supplemental Convention, remove all movable property at its military facilities throughout the Hawaiian Islands, including unexploded munitions, and fuel, with the exception of real property attached to the land or erected on it, including man-made objects, such as buildings, homes, structures, roads, sewers, and fences, to include on other properties that have been or are currently under its supervision and command.

Not all military forces in the Hawaiian Islands are affected by the notice of termination. There are two military forces present within the Hawaiian Kingdom today. That of the United States Federal government called Title 10 United States Code (“USC”) armed forces, and that of the State of Hawai‘i National Guard called Title 32 USC armed forces. Title 10 troops are purely American in origin while the Title 32 troops are Hawaiian in origin, and, therefore, remain in the Hawaiian Islands to be called by its original designation—the Royal Guard.

When the United States unilaterally annexed the Hawaiian Islands in violation of international law on 7 July 1898, it initiated the establishment of the United States Army Pacific, United States Marine Forces Pacific, United States Pacific Fleet, and the United States Pacific Air Forces. The United States Army Pacific was established in the Hawaiian Islands in 1898 during the Spanish-American War, headquartered at its first military base called Camp McKinley on the Island of O‘ahu, and later headquartered at Fort Shafter on the Island of O‘ahu in 1921. In 1908, the Congress allocated funds to establish a Naval Station at Pearl Harbor.

In April 1942, the United States military forces in the Hawaiian Islands were organized into two commands for the Army under United States Army Forces Pacific and for the Navy as Commander-in-Chief, Pacific Fleet, and Pacific Oceans Areas Commander-in-Chief. This command structure of the Army and Navy in the Hawaiian Islands during the Second World War was transformed into the United States Pacific Command on 1 January 1947, which is presently called the Indo-Pacific Command, whose headquarters is at Camp H.M. Smith on the Island of O‘ahu. In September 1947, the United States Air Force separated from the United States Army as a separate branch of the armed forces with its base headquartered at Hickam Air Force Base on the Island of O‘ahu, and later, in 2010, merged to become an element of Joint Base Pearl Harbor-Hickam with the Navy.

The Indo-Pacific Command has four component commands stationed in the territory of the Hawaiian Kingdom—United States Army Pacific, whose headquarters is at Fort Shafter on the Island of O‘ahu, United States Marine Forces Pacific, whose headquarters is at Camp H.M Smith on the Island of O‘ahu, United States Pacific Fleet, whose headquarters is at Naval Station Pearl Harbor on the Island of O‘ahu, and United States Pacific Air Forces, whose headquarters is at Hickam Air Force Base/Joint Base Pearl Harbor-Hickam on the Island of O‘ahu.

There is no legal basis for the presence of Title 10 USC military forces in the Hawaiian Islands by virtue of Congressional legislation because municipal laws have no extraterritorial effect. Since Congressional legislation is limited in operation to the territory of the United States, it cannot unilaterally establish military installations in the territory of a foreign State without the State’s consent through a treaty or convention. According to traditional international law, the concept of jurisdiction is linked to the State territory. As the Permanent Court of International Justice in the 1927 Lotus case stated:

[T]he 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 […] all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.

The presence of all Title 10 USC military forces throughout the Hawaiian Islands has a direct nexus to the 1884 Supplemental Convention that granted the United States exclusive access to Pearl Harbor. The 1884 Supplemental Convention was a valid treaty under international law up until the Hawaiian Kingdom’s notice of intention to terminate was received by the U.S. Department of State at 5:47am ET on 26 October 2023. As a consequence of the termination, all Title 10 USC military forces shall have to be withdrawn from the Hawaiian Islands no later than 5:47am ET on 26 October 2024. The military forces that remain is the Hawaiian Kingdom’s Royal Guard that is referred to today as the Hawai‘i Army and Air National Guard.

For a comprehensive report on the termination of the 1875 Commercial Reciprocity Treaty and its 1884 Supplemental Convention go to the Royal Commission of Inquiry’s Preliminary Report on this subject.

CLARIFICATION. The 1884 Supplemental Convention began a seven-year term as of 1887 when ratifications were exchanged in Washington, D.C. It would continue after the seven-year period until either the Hawaiian Kingdom or the United States gives notification of its intention to terminate the treaty. When notice is received by the other party a twelve-month period begins for termination. Article I specifically states:

The High Contracting Parties agree, that the time fixed for the duration of the said Convention, shall be definitely extended for a term of seven years from the date of the exchange of ratifications hereof, and further, until the expiration of twelve months after either of the High Contracting Parties shall give notice to the other of its wish to terminate the same, each of the High Contracting Parties being at liberty to give such notice to the other at the end of the said term of seven years or at any time thereafter.

In other words, the seven-year term was locked in, but it would continue in force if there was no notice of termination. A similar provision for termination of the 1849 Treaty of Friendship, Commerce and Navigation between the Hawaiian Kingdom and the United States was stated in Article XVI:

The present treaty shall be in force from the date of the exchange of the ratifications, for the term of ten years, and further, until the end of twelve months after either of the contracting parties shall have given notice to the other of its intention to terminate the same, each of the said contracting parties reserving to itself the right of giving such notice at the end of the said term of ten years, or at any subsequent term.

Only the 1875 Commercial Reciprocity Treaty and the 1884 Supplemental Convention have been terminated. All other treaties with the United States remain in full force and effect.

Repealing Hawaiian Citizenship Acquired by Birthright—Jus Soli

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Today, October 2, 2023, the Council of Regency announced by proclamation that the acquisition of Hawaiian citizenship by being native or natural born within the territory of the Hawaiian Kingdom—jus soli, also called citizenship by birthright, has been repealed. From the date of the proclamation, the only way to acquire Hawaiian citizenship is being born in the Hawaiian Islands or abroad—jus sanguinis where at least one of the parents is a Hawaiian subject, or through naturalization by application to the Minister of the Interior. Citizenship by naturalization will not be considered until the United States occupation has come to an end. International law prohibits the acquisition of citizenship of the occupied State by birthright during the occupation because the law of occupation protects the status quo ante of the occupied State.

The proclamation’s intent is to protect the status quo ante of the population as it existed prior to the United States invasion on January 16, 1893, and its subsequent occupation that occurred the following day that is now at 130 years. According to the 1890 Government census, American citizens residing in the Hawaiian Kingdom numbered a mere 1,928, which was less than 2% of the entire population at the time, but exploded to 918,639 in 2009. Other populations of foreigners were also allowed by the United States to unlawfully migrate to the Hawaiian Islands that contributed to the radical disruption of the status quo ante of the population in 1893. The law of occupation is supposed to maintain and protect the status quo ante of the Hawaiian Kingdom, its institutions, population, and its economy but the United States did not adhere to the law of occupation for 130 years, which led to the commission of war crimes.

There are currently over thirty countries that have restricted citizenship by birthright—jus soli. In the case of India, it was in response to unlawful migration from Bangladesh.

Hawaiian Nationality: Who Comprises the Hawaiian citizenry

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The European Convention on Nationality defines nationality as the legal bond between a person and a State and does not indicate the person’s ethnic origin. It is a person owing loyalty to and entitled by birth or naturalization to the protection of a given State. The terms nationality and citizenship are synonymous, and affords a person the political right to participate in government. Without it, a person is prevented from electing governmental officials or serving as a government official themselves. A political right is distinctly different from a civil right, which are basic human rights protected by the constitution and laws of the State, irregardless of a person’s citizenship. Non-citizens residing in the State are categorized as Aliens or Foreigners.

There are three ways a person could acquire citizenship within an established State depending on its national laws: (1) jus sanguinis, where a person being born outside the territory of the State acquires the citizenship of his or her parents; (2) jus soli, where the nationality is conferred upon a person by birth within the territory of the State; and (3) naturalization, where the government grants citizenship upon the application of a foreigner.

On January 21, 1868, the Minister of the Interior for the Hawaiian Kingdom, Ferdinand Hutchison, stated the criteria for Hawaiian nationality: “In the judgment of His Majesty’s Government, no one acquires citizenship in this Kingdom unless he is born here, or born abroad of Hawaiian parents, (either native or naturalized) during their temporary absence from the kingdom, or unless having been the subject of another power, he becomes a subject of this kingdom by taking the oath of allegiance.”

The position of the Hawaiian Government was founded upon Hawaiian statute. Section III, Art. I, Chap. V of an Act to Organize the Executive Departments, 1845 and 1846, provided: “All persons born within the jurisdiction of this kingdom, whether of alien foreigners, of naturalized or of native parents, and all persons born abroad of a parent native of this kingdom, and afterwards coming to reside in this, shall be deemed to owe native allegiance to His Majesty. All such persons shall be amenable to the laws of this kingdom as native subjects. All persons born abroad of foreign parents, shall unless duly naturalized, as in this article prescribed, be deemed aliens, and treated as such, pursuant to the laws.”

There are two exceptions where birth within the territory does not result in citizenship. First, where a child is born within the territory, but the child’s parents are foreign ambassadors or diplomats, that child is not a citizen of the territory of birth; and second, where a child is born of Alien enemies in an area of the territory under hostile occupation, that child will not be a citizen.

Regarding children of foreign diplomats, Frederick Turrill was an American citizen born in the Hawaiian Islands, but later got naturalized on May 21, 1888; and E.H. Wodehouse was a British subject born in the islands and later naturalized on May 7, 1892. The second exception applies to belligerent occupations.

There are numerous references to “children born of alien enemies in hostile occupation,” and one such reference is a U.S. Supreme Court decision. In 1898 during the Spanish-American War, the U.S. Supreme Court rendered a decision concerning the United States citizenship of Wong Kim Ark, a person of Chinese descent. In that decision it also expounded upon the two exceptions to the acquisition of citizenship by birth as determined by the common law of England and made reference to an English case, Calvin’s case, which was decided by the English Court in the year 1608. Although the Hawaiian Kingdom courts have stated that the common law is not in force in this Kingdom, it did state that “…in construing our law the Court must be guided by those enactments and the decisions of American and English Courts.” In re Apuna, 6 Haw. 732 (1869).

In United States vs. Wong Kim Ark (1898), the U.S. Supreme Court ruled:

“The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called ‘ligealty,’ ‘obedience,’ ‘faith’ or ‘power,’ of the King. The principle embraced all persons born within the King’s allegiance and subject to his protection. Such allegiance and protection were mutual—as expressed in the maxim, protectio trahit subjectionem, et subjectio protectionem—and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore naturalborn subjects. but the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King’s dominions, were not natural born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction of the King.”

In the Calvin’s case (1608), the English Court stated: “…for if enemies should come into the realm, and possess town or fort, and have issue there, that issue is no subject of the King of England though he be born upon his soil;” and “if any of the King’s ambassadors in foreign nations have children…they are natural born subjects [of England], yet they are born out of the King’s dominion.”

Once a State is occupied, international law preserves the status quo of the occupied State as it was before the occupation began. To preserve the nationality of the occupied State from being manipulated by the occupying State to its advantage, international law only allows individuals born within the territory of the occupied State to acquire the nationality of their parents—jus sanguinis. To preserve the status quo, Article 49 of the Fourth Geneva Convention mandates that the “Occupying Power shall not…transfer parts of its own civilian population into the territory it occupies.” For individuals, who were born within Hawaiian territory, to be a Hawaiian subjects they must be a direct descendant of a person or persons who were Hawaiian subjects prior to the American occupation that began on January 17, 1893, which is when Queen Lili‘uokalani conditionally surrendered to the United States. All individuals born after the surrender to the present are Aliens who can only acquire the nationality of their parents. According to Professor von Glahn, “children born in territory under enemy occupation possess the nationality of their parents.”

According to the 1890 government census, Hawaiian subjects numbered 48,107, with the aboriginal Hawaiian, both pure and part, numbering 40,622, being 84% of the national population, and the non-aboriginal Hawaiians numbering 7,485, being 16%. Despite the massive and illegal migrations of foreigners to the Hawaiian Islands since 1898, which, according to the State of Hawai‘i numbered 1,302,939 in 2009, the status quo of the national population of the Hawaiian Kingdom is maintained.Therefore, under the international laws of occupation, the aboriginal Hawaiian population of 322,812 in 2009 would continue to be 84% of the Hawaiian national population. The 16% of non-aboriginal Hawaiian subjects will need to be determined by a census report.

Similar to the Hawaiian Kingdom, the Baltic States of Estonia, Latvia and Lithuania were occupied by the Russians for over half a century. In 1940, Russian intervention provided for the forced incorporation of these Baltic States into the U.S.S.R. In 1991, with the breakup of the Soviet Union, these Baltic States once again regained their independence and immediately had to deal with the pressing issue of citizenship in the aftermath of prolonged Russian occupation.

Roger Brubaker, author of the article Citizenship struggles in Soviet Successor States (1992), stated that Estonia adopted a model for defining the initial body of citizens as the restored State model. States who regained their former independence are called restored States, and as these States are not new there would be no need to redefine a new body of citizens, but rather utilize the laws that existed before the occupation to determine the citizenry.

Under this model, persons born in Estonia before the 1940 annexation and their descendants were recognized as having Estonian citizenship. This also included United States citizens who were the offspring of Estonians. Regarding the citizenry of the occupier, the Estonian government also applied the same view the 1898 U.S. Supreme Court had made in U.S. vs. Wong Kim Ark. It viewed all Russians who entered the country after the occupation in 1940, and their descendants, as illegal and could not claim Estonian citizenship. But if a Russian was born in Estonia before the occupation that person acquired citizenship. Latvia also adopted the restored State model. Therefore, it can be stated as a matter of law and based on contemporary examples, that the Hawaiian citizenry of today is comprised of descendants of Hawaiian subjects and those foreigners who were born in the Hawaiian Islands prior to January 17, 1893.

This exclusion of the Hawaiian citizenry is based upon precedence and law, but a restored Hawaiian government does have the authority to widen the scope of its citizenry and adopt a more inclusive model in the aftermath of prolonged American occupation. Brubaker stated that Lithuania adopted such a model. Under the inclusive model, the original citizenry of Lithuania was confirmed under the restored State model, but the foreigners, which included the Russians, were divided into two groups. The first group comprised of permanent residents who would be granted optional inclusion in the Lithuanian citizenry, while the second would be classified as aliens. The optional inclusion of the first group depended upon these residents meeting certain minimum requirements established by the Lithuanian government. (i.e. years of residency and/or language).

Despite over a century of illegal migration that exploded the Alien population from 41,873 in 1890, of which U.S. citizens merely number 1,928, to 918,639 in 2009, the population of Hawaiian subjects has remained intact with its ratio of 84% aboriginal Hawaiians, who can readily be determined, and 16% non-aboriginal Hawaiians yet to be determined. This should alleviate the concern of aboriginal Hawaiian subjects who previously thought they were the minority, when in fact and law they remain the majority of the Hawaiian citizenry. Only Hawaiian subjects, whether aboriginal or non-aboriginal, have political rights, which means they alone can participate in government. §784 of the Hawaiian Civil Code states, “No alien shall be allowed to vote for representatives of the people.”

Hawaiian Journal of Law and Politics publishes Volume no. 5

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From the Editor of the Hawaiian Journal of Law and Politics, Professor Kalawai‘a Moore:

Since the attempted coup of 1887, history written on Hawaiʻi has been a highly political endeavor of a specific nature. The insurgents from the time of 1887 through the time of the United States coup de main of 1893 and beyond began writing a defensive justification narrative for their illegal actions as historical narratives. One among many of the distortions of historical truth has included a re-describing of the role of American missionary advisors in the earlier part of the 19th century as the driving force and main actors behind the development and running of a constitutional government of a nation-state. The motivations for the crafting of a history against which  enormous primary evidence exists to the contrary was the aim at winning public and material support from the United States, and elsewhere to secure and maintain control over Hawaiʻi. Losing control over Hawaiʻi for the insurgents could have led to prosecution for treason under the law an offense that was punishable by death. Exemplifying this false narrative, Lorrin Thurston, one of these insurgents, wrote:

Hawaiian Christianization, civilization, commerce, education, and development are the direct product of American effort. Hawaii is in every element and quality which enters into the composition of a modern civilized community, a child of America.

As Hawaiians began to enter the battle of historical narratives in the 1970s, 80s, and 90s, certain facts of history put forward in American hegemonic writings were latently taken up as foundational truths in the writings and teachings by Hawaiians themselves. One example of a false truth from the insurgents that was carried forward in Hawaiian written work was the false fact of the annexation of Hawaiʻi as a fait acompli. As a fact, the “annexation” of Hawaiʻi has been proven wrong in newer scholarship of the past 25 years. The so called annexation of Hawaiʻi is no longer an accepted fact by most Hawaiian scholars. Another example of a historical fallacy that still circulates today and still has several Hawaiian proponents, is the idea above that the early missionaries were the driving force behind the development and running of the Hawaiian Kingdom’s constitutional government. Professor Jon Osorio provides an example of a Hawaiian indigenist thesis based on this idea. He wrote:

Accordingly, the very formation of a national entity in 1840 under the rudiments of Euro-American constitutions victimized the Native Hawaiians, consigning them to unfamiliar and inferior roles as wage laborers. Caucasian newcomers proceeded to transform the economic and social systems, marginalizing the Native both demographically and symbolically.

Hawaiian indigenist writings about missionary primacy were a part of many theses that argued that the nation-state, law, and governance were western impositions and detrimental to ethnic Hawaiians in line with a thinking that these Hawaiians acquired through theoretical learning with other indigenous peoples. More recent Hawaiian written histories have unearthed primary source materials that show another vantage point that posits missionary involvement came in the middle of an already ongoing process of Hawaiian governmental and nation-state development.

The newer findings show that Hawaiʻi became a unified, centralized state under Kamehameha I with its own organized state structure, adopting features of British styled government long before missionary arrival. Under Kaʻahumanu’s rule, a set of Christian modelled laws were adopted through a dialectical process with missionary advisors, but the Prime Minister was clearly in charge. At the request of King Kamehameha III, Kauikeaouli, the government adopted a secular character. Former missionaries were taken in as advisors and played different roles in the development of Hawaiian governance and were eventually replaced during the reigns of King Kamehameha IV, Alexander Liholiho, and King Kamehameha V, Lota Kapuaiwa, by “Hawaiian chiefs and nonmissionary westerners.” The missionaries were taken on as advisors under Kaʻahumanu and Kauikeaouli, but were not the decision makers, and Hawaiian government was fashioned in a hybrid manner. The Hawaiian Kingdom government was aboriginal Hawaiian controlled and fashioned in a dialectical process based on traditional Hawaiian customs and relationships.

The first set of missionaries while trying to carry out their mission, served at the will of the chiefs. Their ability to stay on the islands was dependent on chiefly permission. The chiefs found the missionaries useful as teachers of new technologies and information. Some of these missionaries like William Richards, and Gerrit Judd left the mission and served the high chiefs full time as advisors on foreign relations and government. This first generation of missionaries spoke of themselves and were spoken of by others as  loyal servants to the chiefs and the Hawaiian Kingdom. Sai notes this distinction between this first generation of missionaries and their descendants in his article “Synergy Through Convergence: The Hawaiian State and Congregationalism,” quoting the famous author Nordhoff, who was working as a correspondent for the newspaper Hawaii Holomua,

They, the fathers, stood by the natives against all foreign aggression. The elder Judd, a very able man, gave time, ability and his own means to the restoration of Hawaiian independence when it was attacked by an English admiral; his degenerate son, the present chief justice [Albert F. Judd] was part of the conspiracy which upset the government he had sworn to support and, himself a native of Hawaii, is active in the movement to destroy the State which his father gave a long life to establish defend and maintained.

This fifth volume of the Hawaiian Journal of Law and Politics contains a number of articles that engage further the agency and independence of aboriginal Hawaiian chiefly rulers, and their abilities to both stay ahead of any political intrigue, and to employ missionary knowledge of literacy and teaching to their advantage. We also see further the distinction that can be made between the first generation of missionaries and their loyalty to the Crown and government, versus some of their descendants, who formed an ideological position of white cultural supremacy, undertaking a treasonous course of action. This later generation showed a completely different attitude and approach to the Hawaiian Crown. Sai’s work further shows how aboriginal Hawaiian leadership from the Hawaiian Patriotic League clearly saw this distinction between the generations referring in testimony to many of the insurgent second and third generationers as the “faithless sons of missionaries and local politicians angered by continous political defeat.”

In the first article by Dr. Susan Corley “Liholiho’s Kauaʻi Coup,” we get an opportunity to understand better the character of King Kamehameha II, Liholiho, as ruler. Corley details an attempt by Hiram Bingham, a missionary of the first mission, to strengthen his position in the islands by enlisting the aid of Kaumualiʻi, King of the Island of Kaua‘i, suggesting the chief fund a mission to Tahiti. Liholiho intercedes using the occassion to outmaneuver both Bingham and Kaumualiʻi, taking full personal control of the island of Kauaʻi, and making it clear to the missionaries that he “held power and control over their ability to continue” their mission. Corley describes Liholihoʻs maneuvering and leadership as a matter of “guile where his father would have used force.”

In “‘He Kaula Uila’: Hawaiian Educational Policy in the 19th Century ‘Ke Aʻo Palapala ma Nā Aloaliʻi a me Nā Kuaʻāina,’” Brandi Jean Nalani Balutski starts with a more well-known excerpt from a speech made by Kauikeaouli upon ascension to the throne “he aupuni palapala koʻu” (mine is a kingdom of learning). Balutski details the chiefly adoption of the technology of literacy and education as formal policy of the early Hawaiian Kingdom and an ethos that education be taken up by all class levels. Balutski details the life journeys and roles of five aboriginal Hawaiian men who returned to Hawai‘i with these first missionaries acting as intermediaries between them and the ruling chiefs. Balutski shows how Thomas Hopu  became the personal teachers for the high chiefs and their children. Others like George Humehume, son of Kaumuali‘i, became advisors for his father and their inner circle of chiefs who saw possible advantages in adopting literacy as a political tool. Despite initial concerns about the missionaries from the United States, their value in teaching literacy and the chiefs understanding of the value of literacy as a technology in dealing with various outsiders, paved the way for the acceptance of the American missionaries because of the benefit that literacy could hold “to control the encounter with foreigners, to favor their interests and those of their lineages, to express their understanding of the world, and to shape that world to their ends.”

In “Synergy Through Convergence: The Hawaiian State and Congregationalism,” Dr. Keanu Sai details further the distinction between the role of early American missionaries in support of the Hawaiian Kingdom government, and the later generations of “faithless sons of missionaries.” He starts by examining the rhetoric in history and political writings that has built a “myth of missionary control,” and contrasts these fabrications through use of the writings by aboriginal Hawaiians and supporters from the late 19th century, including a direct response by Kauikeaouli himself refuting a question of missionary control, and affirming his use of missionaries as teachers of literacy and translators between the government and foreign representatives. Sai shows a link between the congregationalism of the American missionaries and the influence of governmental reform in the Hawaiian Kingdom calling it a synergy whereby the “forces of both coalesced and each saw the other as beneficial to their own goals.” Sai illustrates the benefits to both sides during this time period to show further the false narratives that have been put forth stating that the “continuation of Americanism [was] initiated by the missionaries since 1820.”

In “Apartheid Hawai’i: California Colony at Wahiawā,” Dr. Ronald Williams Jr. continues his work showing the rise of white supremacist thought and action in Hawaiʻi starting with the break in local protestantism from congregationalism to a philosophy of “minority, White rule over both church and state” in the 1860s and 70s. Proponents of this change fomented an outright opposition to King Kalākaua during his reign, and supported the complete seizure of the government through U.S. facilitation in 1893, and then the full establishment of white oligarchic rule into the Territorial era in the 1900’s. Williams documents the efforts to establish a California Colony of white families in Wahiawā starting in 1899. This effort was made possible through earlier legislation called the 1895 Land Act introduced by Sanford Dole utilizing the newly confiscated Crown Lands for the express purpose of promoting “the immigration of permanent settlers of a character suitable for the building up of our population.” Williams documents the push by the government of the illegal Republic to settle white families on 1,350 acres of land before the “annexation” of the islands was completed. He further details the ideological drive behind the Dole government’s push to establish and support this community, which unashamedly sought to build a community of social and educational institutions based on the idea of racial segregation expressed as an “American way” as exemplified by the American South. The Wahiawā colony ultimately fails because of the greed of some of its backers and the success of pineapple farms like the one run by James Dole, which priced other small farmers out of the market.

In “The Decline of Hawaiian Language Common Schools During the Hawaiian Kingdom From 1864 to 1893: A Statistical Analysis,” Dr. Larson Ng walks through a quantitative data study of Hawaiian Kingdom government records on Hawaiian language common schools, English language schools, and independent schools looking at funding, attendance, and population statistics. Ng walks us through a brief history of the school system in the Hawaiian Kingdom and some of the theories in circulation that have tried to link causation of the decrease in aborginal attendence at Hawaiian language common schools to ideologies of “settler colonialism.” Ng’s regression analysis shows that the most important statistical factor in the decline of Hawaiian language common school attendance was the decline in the aboriginal Hawaiian population. He noted that funding disparities were a matter of aboriginal Hawaiian governmental prioritization, rather than an ideological imposition by outsiders.

In my article I provide an analysis of Dr. Kehaulani Kauanui’s book Paradoxes of Hawaiian Sovereignty: Land, Sex, and the Colonial Politics of State Nationalism, in which I call Kauanui’s work a remonstrance against Hawaiians turning toward the Hawaiian Kingdom, and a lament over the waning of Hawaiian indigeneity. I provide a critical analysis that Kauanui lacks any “deep evidentiary work on the matters” she covers, “leaving key source perspectives and facts out in some arguments.” I provide critical comment on her continued misuse and mentoring of the term “colonization” and her focus on the “state” instead of “government” as showing a lack of political and legal disciplinary awareness, and when taken with her attempt to reinvent the term “indigenous” for use in the Hawaiian context shows a kind of paradigm paralysis. I provide additional comment that Kauanui adds no insight of value in her examination of the Mahele in her book. She simply represents old, debunked theories and facts, adding only a new form of rhetorical approach which in my words, states that, “Almost every page in this chapter by Kauanui is inaccurate, and all of her imported theories irrelevant.” On matters of gender and sexuality, Kauanui starts from that earlier mentioned perspective that the missionaries controlled and were in charge of the lives, government, and state creation of the chiefs in Hawai’i, which I disprove. I agree that there were changes that were made in laws on marriage, coverture, and sex that need to be examined and cautioned against. I add that Kauanui is really engaged in a fight over the gender and sexual politics of today seeking to head off losses or maintain rights through closing off the Hawaiian Kingdom as political possibility. Toward building her case, I show that Kauanui left out key information and misarranged key source quotes that would otherwise show subversion, and ambivalence toward conservative laws on gender and coverture. Kauanui does not reveal that coverture was fought, slowly dismantled, and then repealed. And does not reveal that her own sources show women as “jural subjects” and in one case did not show how her source stated that they could not agree that women’s status diminished with government reform. I also caution against obscuring source material to argue politics, and I point out that, “It can be said that there were heteropatriarchal forces at work in the Hawaiian Kingdom, but one cannot say that the Hawaiian Kingdom is a heteropatriarchal government, [society], nor state.”

The last two sections of this volume of the Hawaiian Journal of Law and Politics include two documents recently published by the Council of Regency as the Occupied Government of the Hawaiian Kingdom. One entitled “Operational Plan for Transitioning the State of Hawai’i into a Military Government,” and the second, “Operational Plan for Transitioning the Military Government into the Hawaiian Kingdom Government.” Both documents were written by the acting Government, whose officers consist of Dr. David Keanu Sai, Kauʻi P. Sai-Dudoit, and Dexter Keʻeaumoku Kaʻiama, Esq.

In the “Operational Plan for Transitioning the State of Hawai’i into a Military Government,” the acting Government lays out in detail the historical and legal justifications for the actions needed to move from an illegal State of Hawaiʻi government to military government under international humanitarian law and the law of occupation.

A detailed history is provided from state recognition of the Hawaiian Kingdom in 1843 through the U.S. invasion and overthrow of the Hawaiian Kingdom government, to the U.S. military occupation of the Hawaiian Kingdom. The Plan lays out “essential” and “implied” tasks including the setting up of a temporary administrator of the laws of the occupied state, the establishment of a military government, the proclamation of provisional laws, the disbanding of the State of Hawaiʻi Legislature and County Councils, setting up a temporary administrator of public buildings, real estate, forests, and agricultural estates that belong to the occupied state, and tasks that protect the institutions of the occupied state.

In the “Operational Plan for Transitioning the Military Government into the Hawaiian Kingdom Government,” the acting Government lays out plans for the withdrawal of U.S. armed forces, dealing with the Hawaiian state territory, reparations, and the seizing of property. The plan lays out details on the transition from a military government to the government of the Hawaiian Kingdom; the creation and ratification of a Treaty of Peace, the conducting of a national census, the convening of a Legisltive Assembly, who will then, based on the Hawaiian Kingdom constitution, begin to put together the rest of the Hawaiian Kingdom government. These two plans are the only plans of action for the restoration of the Hawaiian Kingdom government. The historical importance of including these documents as part of the Hawaiian Journal of Law and Politics can not be understated and it was the work of the Council of Regency that was able to get the Permanent Court of Arbitration to acknowledge the continued existence of the Hawaiian Kingdom as an independent State that generated the impetus in the formation of the Hawaiian Society of Law and Politics at the University of Hawai‘i at Mānoa and the establishment of the Hawaiian Journal of Law and Politics.

We close these Editor’s notes with a mahalo (gratitude) to the authors for their work examining topics of interest and importance, and we look forward to more academic work and discussion that persists toward that Kuleana of Scholarship we endeavor to uphold.

The Significance and the Importance of the Two Operational Plans of the Council of Regency

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When dealing with a 130-year crisis of a prolonged and illegal American occupation of the Hawaiian Kingdom, planning is a crucial component that informs where we are today and where we want to be tomorrow. An operational plan is informed by due diligence of the situation, which is a gathering of information relevant to the situation at hand and how it got to the current situation. In the military, this is colloquially known as gathering intel before you come up with a battle plan.

Due diligence is “depending on the relative facts of the special case.” It is the assessment of a situation before a decision should be made. When due diligence is done, the person doing it must be mindful of their own biases and assumptions. To gather information through one’s own bias is what is called “confirmation bias” where the gatherer of information only selects information that would confirm his/her own biases. This is also called cherry picking.

In the Hawaiian situation, there is an abundance of assumptions that are false such as the Hawaiian Islands were colonized by the United States in the nineteenth century, and, as a colonized people, Native Hawaiians are an Indigenous People by definition of the United Nations. United Nations defines Indigenous Peoples as tribal nations that exist with an independent State not of their own making. Arriving at this conclusion was done through confirmation bias.

The Council of Regency sought to gather information through the lens of both the laws of the Hawaiian Kingdom and international law that includes international humanitarian law and the law of occupation. It was through this process that revealed that the Hawaiian Kingdom, which existed as an internationally recognized sovereign and independent State continued to exist since November 28, 1843, despite the illegal overthrow of its government by the United States on January 17, 1893. This continued existence stemmed from the international principle of inalienability of sovereignty of a State, and the only way a State can alienate its sovereignty is by its consent through a treaty of cession with the acquiring State. There exists no such treaty, therefore, the Hawaiian State continues to exist.

It was based on this premise that the government was restored as a Council of Regency in 1997 to provisionally represent the Hawaiian State both domestically and abroad. The actions to be taken by the Council of Regency would be in line with its strategic plan that entailed three phases. 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 is when the American occupation comes to an end.

Phase I was achieved when the Permanent Court of Arbitration (PCA), before establishing the arbitration tribunal in Larsen v. Hawaiian Kingdom on June 9, 2000, acknowledged the continued existence of the Hawaiian State, and the Council of Regency as its government. Phase II, exposure of the Hawaiian State, was initiated during oral hearings on December 7, 8 and 11, 2000, at the PCA in The Hague. Phase II continued at the University of Hawai‘i at Mānoa when the Chairman of the Council of Regency, David Keanu Sai, entered the political science graduate program, where he received a master’s degree specializing in international relations and public law in 2004 and a Ph.D. degree in 2008 on the subject of the continuity of Hawaiian Statehood while under an American prolonged belligerent occupation since 1893.

The exposure through academic research also motivated historian Tom Coffman to change the title of his 1998 book from Nation Within: The Story of America’s Annexation of the Nation of Hawai‘i, to Nation Within—The History of the American Occupation of Hawai‘i. Coffman explained the change in his note on the second edition and took a quote from Dr. Sai’s law article A Slippery Path Towards Hawaiian Indigeneity. Coffman wrote:

I am compelled to add that the continued relevance of this book reflects a far-reaching political, moral and intellectual failure of the United States to recognize and deal with the takeover of Hawai‘i. In the book’s subtitle, the word Annexation has been replaced by the word Occupation, referring to America’s occupation of Hawai‘i. Where annexation connotes legality by mutual agreement, the act was not mutual and therefore not legal. Since by definition of international law there was no annexation, we are left then with the word occupation.

In making this change, I have embraced the logical conclusion of my research into the events of 1893 to 1898 in Honolulu and Washington, D.C. I am prompted to take this step by a growing body of historical work by a new generation of Native Hawaiian scholars. Dr. Keanu Sai writes, “The challenge for … the fields of political science, history, and law is to distinguish between the rule of law and the politics of power.” In the history of the Hawai‘i, the might of the United States does not make it right.

It took the Council of Regency just over 20 years to change the conversation from colonization and indigenous peoples rights to military occupation and the rights of Hawaiian subjects under the law of occupation. With the shifting of the historical lens, legal consequences began to emerge especially with the involvement of Professor Matthew Craven from the University of London, SOAS, School of Law, who authored a legal opinion on the Continuity of the Hawaiian Kingdom as a State under international law; Professor William Schabas from Middlesex University London, School of Law, and a renowned expert in international criminal law, who authored a Legal Opinion on War Crimes related to the United States belligerent occupation of the Hawaiian Kingdom; and Professor Federico Lenzerini from the University of Siena, Italy, Department of Political and International Science, who authored Legal Opinion on the authority of the Council of Regency of the Hawaiian Kingdom.

Both the Operational Plans for Transitioning the State of Hawai‘i into a Military Government and Transitioning the Military Government to the Hawaiian Kingdom Government, which will bring the prolonged American occupation to an end, is a culmination of years of research and exposure and is a subset of plans under phase II of the strategic plan. As such we are moving toward the end of phase II and preparing for phase III that will bring the 130-year crisis to an end.

The two operational plans are clear as to where we are, where we need to get to, and the path to get there. The essential tasks and the implied tasks in each of the plans are measurable, and, most importantly, flexible when achieving the tasks. They allow flexibility to adjust to issues unforeseen such as time and allocation of resources. The Council of Regency established a 3-year window for the occupation to come to an end, but it doesn’t prevent unforeseen and extenuating circumstances to adjust the timeline. When the American occupation of Japan began in 1945, it was thought that it would last 3 years. But circumstances extended the occupation an additional 4 years. The same could happen in the Hawaiian situation, but the Council of Regency needed to set an initial timeline of 3 years.

BREAKING NEWS: Operational Plan for Transitioning the Military Government into the Hawaiian Kingdom Government to bring the American Occupation to an End made Public

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On September 12, 2023, the Council of Regency approved its Operational Plan for Transitioning the Military Government into the Hawaiian Kingdom Government. The Council of Regency has drafted a proposed Treaty of Peace, and sees that the occupation can come to an end in 3 years. This operational plan assumes that the military government has been established in accordance with its August 14, 2023, Operational Plan for Transitioning the State of Hawai‘i into a Military Government and moves it to the next phase where the occupation will come to an end. These operational plans are comprehensive and incorporates Hawaiian Kingdom laws and the law of occupation.

The mandate of the Council of Regency is through all legal means, compel the United States and the State of Hawai‘i to begin to comply with international humanitarian law and the law of occupation in order to bring the prolonged occupation to an end. It has been 23 years since the Council of Regency returned from oral hearings held at the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom arbitration proceedings in December of 2000.

As part of phase II of its strategic plan—exposure of the Hawaiian Kingdom as a State under international law, the Council of Regency focused on academic research to not only draw attention to the fact that the Hawaiian Kingdom continues to exist, but how international humanitarian law and the law of occupation provides the process for the occupation to eventually come to an end. At first glance, for the State of Hawai‘i to transform itself into a military government would appear counter intuitive to a problem that came about by the U.S. military itself when they invaded the Hawaiian Kingdom on January 16, 1893.

The U.S. military is the most regulated organization in the United States. It operates like it is its own government with the exception of a legislative body. It has a general that oversees all branches of the military, a chain of command with superiors at every level to the lowest ranking soldier, and a judicial system to hold to account soldiers who violate regulations called the Uniform Code of Military Justice.

What the U.S. military did when they invaded Hawaiian territory and caused the overthrow of the Hawaiian Kingdom government was unlawful, and admitted being so by President Grover Cleveland, but that didn’t mean it ended then and there. When a government of another country is militarily overthrown by an “act of war,” it triggers duties and obligations upon the invader that are not just military regulations, but also international law called international humanitarian law and the law of occupation.

The law of occupation in 1893 obligated the United States military to establish a military government to administer the laws of the occupied State until a treaty of peace has been negotiated and agreed upon that will either bring the occupation to an end or the occupied country could cede itself to the former occupying State. To not administer the laws of the occupied State by a military government is a war crime by omission, and the imposition of American laws over Hawaiian territory is the war crime of usurpation of sovereignty during military occupation. There are no statutes of limitations for war crimes.

Until there is a treaty of peace, the occupation continues and war crimes continue to be committed with impunity. There is no treaty of peace whereby the Hawaiian Kingdom ceded itself to the United States. The Hawaiian Kingdom continues to exist because of the international principle of inalienable sovereignty, and the Permanent Court of Arbitration acknowledged this in Larsen v. Hawaiian Kingdom in 1999.

A military government is also a misnomer. It is not a government comprised of the military, but rather the civilian government of the occupied State where only the head is replaced by a military governor, which is the highest-ranking Army officer that is in effective control of the territory of an occupied State. That officer is the State of Hawai‘i Adjutant General, Major General Ken Hara. According to Army regulations, the 322nd Civil Affairs Brigade at Fort Shafter, Island of O‘ahu, advises military governors on the function of transitioning governance—military government. U.S. Army Field Manual 3-57 is the manual for Civil Affairs units.

BREAKING NEWS: Operational Plan for Transitioning the State of Hawai‘i into a Military Government according to International Law made Public

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Despite the prolonged nature of the occupation and 130 years of non-compliance to the law of occupation, there are two fundamental rules that prevail: (1) to protect the sovereign rights of the legitimate government of the Occupied State; and (2) to protect the inhabitants of the Occupied State from being exploited. From these two rules, the 1907 Hague Regulations and the 1949 Fourth Geneva Convention circumscribe the conduct and actions of a military government, notwithstanding the failure  by the occupant to protect the rights of the occupied government and the inhabitants since 1893. These rights remain vested despite over a century of violating these rights. The failure to establish a military government facilitated the violations.

The law of occupation does not give the occupant unlimited power over the inhabitants of the Occupied State. As President McKinley interpreted this customary law of occupation under General Orders No. 101 (July 18, 1898), that predates the 1899 and 1907 Hague Regulations during the Spanish-American War, the inhabitants of occupied territory “are entitled to security in their persons and property and in all their private rights and relations,” and it is the duty of the commander of the occupant “to protect them in their homes, in their employments, and in their personal and religious beliefs.” The Order also stated that “the municipal laws of the conquered territory, such as affect private rights of person and property and provide for the punishment of crime, are considered as continuing in force” and are “to be administered by the ordinary tribunals, substantially as they were before the occupation.”

United States practice under the law of occupation acknowledges that sovereignty remains in the Occupied State, because according to the U.S. Army Field Manual 27-10, “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” through effective control of the territory of the Occupied State.

The prolonged occupation did not diminish Hawaiian State sovereignty and the continued existence of the Hawaiian State was acknowledged by the Permanent Court of Arbitration in 1999 in Larsen v. Hawaiian Kingdom. On March 22, 2023, the United Nations Human Council, at its 49th session in Geneva, was made aware of the Hawaiian Kingdom as an Occupied State and the commission of war crimes and human rights violations within its territory by the United States and the State of Hawai‘i and its Counties.

International humanitarian law is silent on a “prolonged occupation” because the authors of 1907 Hague Regulations viewed occupations to be provisional and not long term. According to Professor Scobbie, “The fundamental postulate of the regime of belligerent occupation is that it is a temporary state of affairs during which the occupant is prohibited from annexing the occupied territory. The occupant is vested only with temporary powers of administration and does not possess sovereignty over the territory.”

The effective control by the United States since Queen Lili‘uokalani’s conditional surrender on January 17, 1893, did not transfer Hawaiian sovereignty. As Professor Benvenisti explains, “Effective control by foreign military force can never bring about by itself a valid transfer of sovereignty. Because occupation does not transfer sovereignty over the territory to the occupying power, international law must regulate the inter-relationships between the occupying force, the ousted government, and the local inhabitants for the duration of the occupation. From the principle of inalienable sovereignty over a territory springs the basic structural constraints that international law imposes upon the occupant.”

Despite the prolonged nature of the American occupation, the law of occupation continues to apply because sovereignty was never ceded or transferred to the United States by the Hawaiian Kingdom. At a meeting of experts on the law occupation, that was convened by the International Committee of the Red Cross, the experts “pointed out that the norms of occupation law, in particular Article 43 of the Hague Regulations and Article 64 of the Fourth Geneva Convention, had originally been designed to regulate short-term occupations. However, the [experts] agreed that [international humanitarian law] did not set any limits to the time span of an occupation. It was therefore recognized that nothing under [international humanitarian law] would prevent occupying powers from embarking on a long-term occupation and that occupation law would continue to provide the legal framework applicable in such circumstances.” They also concluded that since a prolonged occupation “could lead to transformations and changes in the occupied territory that would normally not be necessary during short-term occupation,” they “emphasized the need to interpret occupation law flexibly when an occupation persisted.” The prolonged occupation of the Hawaiian Kingdom is, in fact, that case, where drastic unlawful “transformations and changes in the occupied territory” occurred.

As the occupant in effective control of 10,931 square miles of Hawaiian territory, the State of Hawai‘i, being the civilian government of the Hawaiian Kingdom that was unlawfully seized in 1893, is obligated to transform itself into a military government in order “to protect the sovereign rights of the legitimate government of the Occupied State, and…to protect the inhabitants of the Occupied State from being exploited.” The military government has centralized control, headed military governor, and by virtue of this position, according U.S. Army Field Manual 27-5, the military governor has “supreme legislative, executive, and judicial authority, limited only the laws and customs of war and by directives from higher authority.”

The reasoning for the centralized control of authority is so that the military government can effectively respond to situations that are fluid in nature. Under the law of occupation, this authority by the occupant is to be shared with the Council of Regency, being the government of the Occupied State. As the last word concerning any acts relating to the administration of the occupied territory is with the occupying power, “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.”

By virtue of this shared authority, the Council of Regency, in its meeting on August 14, 2023, approved an “Operational Plan for Transitioning the State of Hawai‘i into a Military Government.” International humanitarian law distinguishes between the “Occupying State” and the “occupant.” The law of occupation falls upon the latter and not the former, because the former’s seat of government exists outside of Hawaiian territory, while the latter’s military government exists within Hawaiian territory.

This operational plan lays out the process of transition from the State of Hawai‘i government to a Military Government in accordance with international humanitarian law, the law of occupation, and U.S. Army regulations in Field Manuals 27-5 and 27-10. The 1907 Hague Regulations and the 1949 Fourth Geneva Convention shows there are four essential tasks of the Military Government. This operational plan addresses these essential tasks with their implied tasks for successful execution despite the prolonged nature of the occupation where the basic rules of occupation have been violated for over a century. The operational plan lays out governing rules of maintaining a Military Government until a peace treaty has been negotiated and agreed upon between the Hawaiian Kingdom and the United States of America.

The insurgents, who were not held to account for their treasonous actions in 1893, were allowed by the United States to control and exploit the resources of the Hawaiian Kingdom and its inhabitants after the Hawaiian government was unlawfully overthrown by United States troops. Some of these insurgents came to be known as the Big Five, a collection of five self-serving large businesses, that wielded considerable political and economic power after 1893. The Big Five were Castle & Cooke, Alexander & Baldwin, C. Brewer & Company, American Factors (now Amfac), and Theo H. Davies & Company. One of the Big Five, Amfac, acquired an interest in Pioneer Mill Company in 1918, and in 1960 became a wholly owned subsidiary of Amfac.

Pioneer Mill Company operated in West Maui with its headquarters in Lahaina. In 1885, Pioneer Mill Company was cultivating 600 of the 900 acres owned by the company and by 1910, 8,000 acres were devoted to growing sugar cane. In 1931, the Olowalu Company was purchased by Pioneer Mill Company, adding 1,200 acres of sugar cane land to the plantation. By 1935, over 10,000 acres, half-owned and half leased, were producing sugar cane for Pioneer Mill. To maintain its plantations, water was diverted, and certain lands of west Maui became dry.

The Lahaina wildfire’s tragic outcome also draws attention to the exploitation of the resources of west Maui and its inhabitants—water and land. West Maui Land Company, Inc., became the successor to Pioneer Mill and its subsidiary the Launiupoko Irrigation Company. When the sugar plantation closed in 1999, it was replaced with real estate development and water management. Instead of diverting water to the sugar plantation, it began to divert water to big corporations, hotels, golf courses, and luxury subdivisions. As reported by Hawai‘i Public Radio, “Lahaina was formerly the ‘Venice of the Pacific,’ an area famed for its lush environment, natural and cultural resources, and its abundant water resources in particular.” Lahaina became a deadly victim of water diversion and exploitation. It should be noted that Lahaina is but a microcosm of the exploitation of the resources of the Hawaiian Kingdom and its inhabitants throughout the Hawaiian Islands for the past century to benefit the American economy in violation of the law of occupation.

Considering the devastation and tragedy of the Lahaina wildfire, transforming the State of Hawai‘i into a military government is only amplified and made much more urgent. It has been reported that the west Maui community, to their detriment, are frustrated with the lack of centralized control by departments and agencies of the federal government, the State of Hawai‘i, and the County of Maui. The law of occupation will not change the support of these departments and agencies, but rather only change the dynamics of leadership under the centralized control by the military governor. The operational plan provides a comprehensive process of transition with essential tasks and implied tasks to be carried out. The establishment of a military government would also put an end to land developers approaching victims of the fire who lost their homes to purchase their property. While land titles were incapable of being conveyed after January 17, 1893, for want of a lawful government and its notaries public, titles are capable of being remedied under Hawaiian Kingdom law and economic relief by title insurance policies. It is unfortunate that the tragedy of Lahaina has become an urgency for the State of Hawai‘i to begin to comply with the law of occupation and establish a military government. To not do so is a war crime of omission.

Speech of His Highness William Charles Lunalilo – July 31, 1865

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Ladies and Gentlemen:

This is the day we commemorate the return of the Hawaiian Flag by Admiral Thomas. Twenty-two years have passed since that officer arrived at these shores, restoring the Flag to our King and the nation. Our hearts were filled with joy on that day that is forever remembered, and many tears were shed, not from sadness, but from joy. How very different from the previous February 25. I recall what I saw as I stood in the grounds of the old Fort with our current King and his younger brothers, now deceased; we witnessed our Flag being brought down. On that day, these islands were surrendered to the Crown of Great Britain, and on that day the flying star flag of Albion waved victoriously over these Islands. Many here probably heard the short speech King Kamehameha IIIgave regarding that event.

“Attention, Nobles, people, and subjects from my ancestors’ time, as well as those of foreign lands! Pay heed all of you! I say to you all that I am in distress as a result of predicaments into which I have been drawn without cause, therefore I have surrendered the sovereignty of our land, and so you should all heed that! However, my reign over all of you, my people, and your rights, will continue because I am hopeful that the sovereignty of the land will yet be restored, if my actions are just.”

That speech by the King to his people was short, but important nonetheless. He expressed his sadness about what he had seen. There were many tears that day. Those were dark and fearful days. The entire nation mourned during those months of investigation, thinking that the government might have been lost for all time to the hands of a foreign power. For five long months all remained calm, as at the outset, and on the 31st of July, the day we now commemorate, we saw “the flag for which they had dared for a thousand years to valiantly face war and the wind” brought down by one of the own sons of England.

As Doctor Gulick clarified, “America gaining independence was not something that simply came to be, nor was it some short-lived foolishness. Instead, it was something that came about and will be remembered for centuries, and is something that will continue on into the future.” The same is true of this, our restoration day, it is not something that just came to be. Admiral Thomas did not simply come here regarding trouble that was occurring and seek the facts as they have done before, but he heard, from a high-level source, of actions happening between this Government and those under its domain. He carefully considered it, and the setting was perfectly clear to him prior to his sailing here and his return of the land to its King who had acted justly. The people (though I speak as an individual) had acted appropriately, were thoughtful and vigilant in the workings of the Government, and if they had spoken or acted irresponsibly, they would certainly have incurred the wrath of the opposition. Something real that was witnessed was whether the assets that the nation had entrusted to someone in a certain department would continue to exist. It was assumed they had not. The books of every kind, which were critical, were taken away from the offices and hidden, then taken to the Royal Crypt, there to be left among the residents of that eerie place. Night and day, the work was carried out there, and the casket of Good Ka’ahumanu became the desk for writing.

But the sun rose again, brighter than ever. The hopes of the good and benevolent Kauikeaouli were fulfilled (you will likely never forget the short speech he gave with the wishes for his people on the day he surrendered the land to Great Britain, and his hopes that once his actions on behalf of his Kingdom were justified, it would be restored to him as before). At this time, we are an independent modern nation, and we are seen as such, and though we have only recently emerged from darkness into enlightenment, our status has grown, and continues to expand through righteousness.

Each of the many peoples of the earth has things of which they may be proud. England has promoted its powerful navy and through its colonies all around the world (and it is said to be true) the sun never sets on its bounds. France glorifies its Bonaparte, and the way all of Europe trembled while that soldier of a hundred wars sat on the French throne. Rome prided itself on its strength and its wealth. The United States of America was boastful that when it moved toward liberty, it gained its independence, and in recent years, stamped out both rebellion and slavery, never to rise again. Of what do we boast? I say sincerely, indeed there is something, for in the few, short years since the light of God’s word reached our shores, the tree of knowledge and wisdom has been planted, the roots have expanded out, the branches have spread wide, and now its fruits are being sent out among the benighted peoples of this great Pacific Ocean. The brightness of our enlightenment grows every day, and I am proud to say that we are assuming a position among the learned and civilized peoples of the world. I call this the true beauty of this land, Hawai’i.

As a closure to my reflections, I say that we should give our love to Him, the Judge of all things, because of his love for us, in our hours of strife and in times of good fortune and joy.

“May God Save The King With His Eternal Love.”

Speech by Dr. Gerrit P. Judd – July 31, 1865

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Twenty years ago, Kauikeaouli emerged from the grounds of Kanaina; he and Kekuanaoa, Paki, Keoniana, Kanoa, Kivini, and some foreigners on horseback, and they rode for Kulaokahua.

Admiral Thomas was there with his troops and mounted guns in all his grandeur, and also there were the young chiefs, and a crowd of natives and foreigners awaiting the arrival of the King.

When he arrived, Admiral Thomas came to him holding the Hawaiian flag in his hands. The King and all his people dismounted and the Admiral came and opened the flag to the wind, and then gave it to Kauikeaouli’s flag bearer.

Right then, 21 mounted guns fired as a salute to the Flag, and the British flag was lowered on Puowaina, while the Hawaiian flag was drawn up again, whereupon 21 guns of Puowaina sounded. Then the British flag was pulled down at the Fort and the Hawaiian flag was raised, so the Fort fired a 21 gun salute, followed by 21 guns from the ship Carysfort, 21 from the Dublin, 21 more from the Hazzard, and then the American ship Constellation fired a 21-gun salute. When that was over, the 21 mounted guns fired a salute in honor of the King.

The British soldiers stood in a circle saluting the King, and when that was done the King returned to the palace. At 3[1] o’clock the King, his soldiers and the crowd of people all went to the church of Kawaiaha’o and gave thanks to God for his grace in restoring the sovereignty of the Nation.

At three o’clock, the King went aboard the ship Dublin to a dinner hosted by the Admiral, and when the Carysfort saw the King’s flag on the launches, a 21-gun salute was fired, followed by 21 guns from the Hazzard, then the Dublin, and then a final 21 gun salute came from the Constellation.

When the dinner on board the ship was finished, the King and his retinue came ashore and the Dublin fired a salute, followed by the Carysfort, then the Hazzard and the Constellation, 21 guns each.

The next day the great feast at Luakaha was held for the Admiral, and Kauikeaouli decided that the 31st of July would become a holiday for the Nation and the people. What was the reason for this great festivity?

What was the reason for the resounding of 315 guns, startling the mountains and roiling the seas? It was because the flag, once pulled down, had been raised up again.

I should perhaps recount the source of this entanglement. It was the desire of British foreigners here ashore for Britain to take this island chain. It would not then remain independent, so Consul [Charlton] sought to petition the Admiral, whereupon the Admiral ordered Lord George Paulet to sail here to Hawaii and do everything according to the terms of the Consul, and he intended to take the land by war, but, the King gave in advance the sovereignty of the land to the two of them, so as to escape battle, in the manner of a mortgage until such time as the British government could decide about the entanglements that the foreigners had made up.

The Admiral perhaps recognized his own entanglement because of the transfer to George Paulet under Consul, therefore he was concerned and restored the sovereignty of the Nation.

Therefore, the chiefs and the common people are joyful on this day because of the victory of righteousness over wrong, and the religious ones praise God, their Savior, for allowing them not to live as prisoners under Britain. Glory! Glory!! Glory!!!

National Holiday – Restoration Day

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Today is July 31st which is a national holiday in the Hawaiian Kingdom called “Restoration day,” and it is directly linked to another holiday observed on November 28th called “Independence day.” Here is a brief history of these two celebrated holidays.

In the summer of 1842, Kamehameha III moved forward to secure the position of the Hawaiian Kingdom as a recognized independent state under international law. He sought the formal recognition of Hawaiian independence from the three naval powers of the world at the time—Great Britain, France, and the United States. To accomplish this, Kamehameha III commissioned three envoys, Timoteo Ha‘alilio, William Richards, who at the time was still an American Citizen, and Sir George Simpson, a British subject. Of all three powers, it was the British that had a legal claim over the Hawaiian Islands through cession by Kamehameha I, but for political reasons the British could not openly exert its claim over the other two naval powers. Due to the islands prime economic and strategic location in the middle of the north Pacific, the political interest of all three powers was to ensure that none would have a greater interest than the other. This caused Kamehameha III “considerable embarrassment in managing his foreign relations, and…awakened the very strong desire that his Kingdom shall be formally acknowledged by the civilized nations of the world as a sovereign and independent State.”

While the envoys were on their diplomatic mission, a British Naval ship, HBMS Carysfort, under the command of Lord Paulet, entered Honolulu harbor on February 10, 1843, making outrageous demands on the Hawaiian government. Basing his actions on complaints made to him in letters from the British Consul, Richard Charlton, who was absent from the kingdom at the time, Paulet eventually seized control of the Hawaiian government on February 25, 1843, after threatening to level Honolulu with cannon fire. Kamehameha III was forced to surrender the kingdom, but did so under written protest and pending the outcome of the mission of his diplomats in Europe.

News of Paulet’s action reached Admiral Richard Thomas of the British Admiralty, and he sailed from the Chilean port of Valparaiso and arrived in the islands on July 25, 1843. After a meeting with Kamehameha III, Admiral Thomas determined that Charlton’s complaints did not warrant a British takeover and ordered the restoration of the Hawaiian government, which took place in a grand ceremony on July 31, 1843. At a thanksgiving service after the ceremony, Kamehameha III proclaimed before a large crowd, ua mau ke ea o ka ‘aina i ka pono (the life of the land is perpetuated in righteousness). The King’s statement became the national motto.

The envoys eventually succeeded in getting formal international recognition of the Hawaiian Islands “as a sovereign and independent State.” Great Britain and France formally recognized Hawaiian sovereignty on November 28, 1843 by joint proclamation at the Court of London, and the United States followed on July 6, 1844 by a letter of Secretary of State John C. Calhoun. The Hawaiian Islands became the first Polynesian nation to be recognized as an independent and sovereign State.

The ceremony that took place on July 31 occurred at a place we know today as “Thomas Square” park, which honors Admiral Thomas, and the roads that run along Thomas Square today are “Beretania,” which is Hawaiian for “Britain,” and “Victoria,” in honor of Queen Victoria who was the reigning British Monarch at the time the restoration of the government and recognition of Hawaiian independence took place.

Clarifying Army Regulations and Terms Regarding a Military Government of Hawai‘i

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After securing Phase I of the of the Council of Regency’s strategic plan where in 1999 the Permanent Court of Arbitration “verified the Hawaiian Kingdom as independent State and subject of international law,” Phase II was initiated to expose “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.” This exposure has brought out many aspects of international law and the law of occupation that many have heard only for the first time.

There are terms such as international humanitarian law, which the military refers to as the law of armed conflict. International law distinguishes between a State and its government. What occurred on January 17, 1893, was that United States troops and a diplomat overthrew the government of the Hawaiian Kingdom. The Hawaiian State was not affected by the overthrow and remained a subject of international law with its rights and duties intact. This type of situation under international humanitarian law is called belligerent occupation where the Occupying State must administer the laws of the Occupied State until a treaty of peace comes into effect.

The only way the United States could have acquired the territory of the Hawaiian Kingdom, called the Hawaiian Islands, is by way of a treaty of peace that cedes Hawaiian territory to the United States. The United States was unable to acquire Hawaiian territory by a treaty of cession because it overthrew the government. A treaty requires the government of a State to cede its territory. Instead, the United States enacted a congressional joint resolution purporting to have annexed the Hawaiian Islands at the height of the Spanish-American War in 1898. Since 1898, the United States has been unlawfully imposing its laws over Hawaiian territory, which is the war crime of usurpation of sovereignty during military occupation.

In the case of Hawai‘i, we are dealing with role of the Adjutant General of the Army and Air National Guard. Under federal and State law, the National Guard can serve two commanders in chief but not at the same time. According to Article II, section 2 of the U.S. Constitution, the President becomes the commander in chief of the National Guard “when called into the actual Service of the United States.” Until that time, the commander in chief of the National Guard is the Governor of the State.

Article V of the State of Hawai‘i Constitution provides that the Governor is the Chief Executive of the State of Hawai‘i. He is also the commander-in-chief of the Army and Air National Guard and appoints the Adjutant General who “shall be the executive head of the department of defense and commanding general of the militia of the State.” Section 121-9 of the Hawai‘i Revised Statutes states, “The adjutant general shall perform such duties as are prescribed by law and such other military duties consistent with the regulations and customs of the armed forces of the United States as required by the governor.” In other words, the Adjutant General operates under two regimes of law, that of the State of Hawai‘i and that of the United States Army.

When the National Guard is called into State active duty, not federal active duty, the Governor is the commander-in-chief and has command and control. Under him is the Adjutant General that has command and control of the forces that have been activated. This is what occurred when certain units of the Army and Air National Guard were activated in 1992 when Hurricane Iniki devastated the island of Kaua‘i. Governor John Waihe‘e was the commander-in-chief and Brigadier General Edward Richardson was the Adjutant General. When the Hawai‘i Army and Air National Guard were called to federal active duty for deployment to Iraq during Second Gulf War in 2005, the commander-in-chief changed from State of Hawai‘i Governor Linda Lingle to President George W. Bush.

These American laws, however, don’t apply in the Hawai‘i situation. Unlike the other 49 Governors of States in the Federal Union their authorities derive from American laws that include both Federal and State laws. Because the State of Hawai‘i is outside of the borders of the United States, and as such is foreign territory, the authority of the State of Hawai‘i to include its Governor is stripped. The reason for this is the authority of the Governor derives from the 1959 Statehood Act, which under international law is a war crime. What allows the State of Hawai‘i to exist, however, is international humanitarian law and the law of occupation. Under these laws, the State of Hawai‘i is a civilian armed force acting for the United States as an occupying State.

The decision to establish a military government in foreign territory is not with the U.S. President as commander-in-chief but rather with the most senior commander of the armed forces in foreign territory that has come under effective control. Article 42 of the 1907 Hague Regulations states, “Territory is considered occupied when it is actually placed under the authority of the hostile army.” The State of Hawai‘i, and not the Federal government, is in effective control of 94% of Hawaiian territory.

According to United States Army Field Manual 27-5—Civil Affairs Military Government, the theater commander over foreign territory to come under military occupation bears full responsibility for establishing a military government. That person is a general officer and designated as military governor and is authorized to delegate his authority and title, in whole or in part, to a subordinate commander.

Section 8 of FM 27-5 states, “In occupied territory the commander, by virtue of his position, has supreme legislative, executive, and judicial authority, limited only by the laws and customs of war and by directives from higher authority.” Section 3 states that the reasons for establishing a military government “are either military necessity as a right, or as an obligation under international law.” And since military occupation “suspends the operation of the government of the occupied territory, the obligation arises under international law for the occupying force to exercise the functions of civil government looking toward the restoration of maintenance of public order.”

In this situation, it is the State of Hawai‘i Adjutant General that has the responsibility and duty to establish a military government for Hawai‘i under international law and begin to administer Hawaiian Kingdom laws and the provisional laws in accordance with 2014 Proclamation of Provisional Laws by the Council of Regency.

Why the State of Hawai‘i Adjutant General has the Authority and Duty to Establish a Military Government for Hawai‘i

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After securing Phase I of the of the Council of Regency’s strategic plan where in 1999 the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom, “verified the Hawaiian Kingdom as independent State and subject of international law,” Phase II was initiated in order to expose “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.” This exposure has brought out many aspects of international law and the law of occupation that many have only heard for the first time.

There are terms such as international humanitarian law, which the military throughout the world refers to as the law of armed conflict. The rule that distinguishes between a State and its government. The difference between military occupation of a State and the colonization of territory that is not a State. Adding to this list of new terms and principles include Army doctrine and regulations that apply to military occupation of foreign territory.

In the case of Hawai‘i, we are dealing with role of the Adjutant General of the Army and Air National Guard. Under federal and State law, the National Guard can serve two commanders in chief but not at the same time. According to Article II, section 2 of the U.S. Constitution, the President becomes the commander in chief of the National Guard “when called into the actual Service of the United States.” Until that time, the commander in chief of the National Guard is the Governor of the State.

When the National Guard is called to State active duty, not federal active duty, the Governor is the commander and chief and has command and control. Under him is the Adjutant General that has command and control of the forces that have been activated. This is what occurred when certain units of the Army and Air National Guard were activated in 1992 when Hurricane Iniki devastated the island of Kaua‘i. Governor John Waihe‘e was the commander in chief and Brigadier General Edward Richardson was the Adjutant General.

When units of the Hawai‘i Army and Air National Guard were called to federal active duty for deployment to Iraq during Second Gulf War in 2003, the commander in chief changed from State of Hawai‘i Governor Linda Lingle to President George W. Bush.

As an occupied State, these American laws do not apply in the Hawai‘i situation. The unlawful imposition of these laws constitutes the war crime of usurpation of sovereignty during military occupation. Unlike the other 49 Governors of States in the federal Union, their authorities derive from these American laws that include both federal and State laws.

Because the State of Hawai‘i is outside of the borders of the United States, and as such is foreign territory, the authority of the State of Hawai‘i to include its Governor is stripped. What allows the State of Hawai‘i to exist, however, is international humanitarian law and the law of occupation. Under these laws, the State of Hawai‘i is a civilian armed force acting for the United States as an occupying State, which has effective control of 94% of the territory of the Hawaiian Kingdom. The federal government only has effective control of less that 6% of the territory.

The decision to establish a military government in foreign territory is not with the U.S. President as commander in chief but rather with the most senior commander of the armed forces in foreign territory that has come under effective control by the occupying force. According to section 3 of FM 27-5, Civil Affairs Military Government, the theater commander over the territory to come under military occupation bears full responsibility for establishing a military government.

That person is a general officer and designated as military governor and is authorized to delegate his authority and title, in whole or in part, to a subordinate commander. “In occupied territory the commander, by virtue of his position, has supreme legislative, executive, and judicial authority, limited only by the laws and customs of war and by directives from higher authority.” So under Army doctrine, it is never the President of the United States to establish a military government but rather the most senior military commander in the occupied territory.

Section 4 of FM 27-5 also states that the reasons for establishing a military government “are either military necessity as a right, or as an obligation under international law.” And since military occupation “suspends the operation of the government of the occupied territory, the obligation arises under international law for the occupying force to exercise the functions of civil government looking toward the restoration of maintenance of public order.”

In this situation, it is the State of Hawai‘i Adjutant General that has the responsibility and duty to establish a military government for Hawai‘i under international law. This is a command decision to be made by the Adjutant General who is the most senior Army commander in the occupied territory of Hawai‘i.

Council of Regency Lays Out Plan for the State of Hawai‘i to be a Military Government

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For 130 years the United States violated international law and the sovereignty of the Hawaiian Kingdom. These violations were concealed by a false narrative that the Hawaiian Islands became a part of the United States in 1898, which led to the establishment of the Territory of Hawai‘i in 1900, and then the State of Hawai‘i in 1959.

These three acts were done by congressional legislation, which have no effect beyond the borders of the United States. This is analogous to Congress enacting legislation that establishes an American government in Ottawa, Canada. Without a treaty where the Hawaiian Kingdom ceded its territory to the United States like the Mexican government ceded its northern territory to the United States in 1848, congressional laws have no effect within Hawaiian territory. This legal principle of United States law is a pulled grenade pin that renders these acts not only unlawful under international law but are also considered the war crime of usurpation of sovereignty during military occupation.

Usurpation of sovereignty during military occupation was listed as a war crime in 1919 report by the Commission on Responsibilities of the Paris Peace Conference that was established by the Allied and Associated Powers at war with Germany and its allies during World War I. The Commission was especially concerned with acts perpetrated in occupied territories against non-combatants and civilians. Usurpation of sovereignty during military occupation is the imposition of the laws and administrative policies and measures of the Occupying State over the territory of the Occupied State.  

When the United States unlawfully overthrew the government of the Hawaiian Kingdom on January 17, 1893, the Hawaiian Kingdom continued to exist as a State, which the Permanent Court of Arbitration, in Larsen v. Hawaiian Kingdom, acknowledged in 1999. The law of occupation mandated the United States to establish a military government in order to temporarily administer the laws of the Hawaiian Kingdom until a treaty of peace comes into force.

In 1828, U.S. Chief Justice John Marshall, in American Insurance Company v. Canter, wrote that “the holding of conquered territory is mere military occupation, until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed and the ceded territory becomes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession or on such as its new master shall impose.” There is no treaty of cession between the Hawaiian Kingdom and the United States.

Because military occupations do not last for long periods, the cornerstone of the law of occupation is to maintain the status quo of the occupied State. This means that the occupying State cannot impose its laws over occupied territory, change the governmental institutions of the occupied State, or transfer its own citizens into the occupied State. For the past 130 years, the United States did exactly that, which complicates the situation today. However, the laws of occupation and the principles of necessity are flexible enough to come up with a comprehensive plan of compliance. It is said that necessity is the mother of all inventions.

The first step is to identify what entity of the occupying State is responsible for establishing a military government. Is it the United States federal government or the State of Hawai‘i and its Counties? Article 42 of the 1907 Hague Regulations states that territory is occupied when it comes under the effective control of the occupying State, which triggers the law of occupation. Of the 4 million acres that comprise Hawaiian territory, the State of Hawai‘i is in effective control of 94%, while the United States federal government is in control of 6%. Having met the requirement of effective control of occupied territory, the State of Hawai‘i and not the federal government has the responsibility to established the military government to temporarily administer the laws of the Hawaiian Kingdom.

With a view to bringing compliance with international humanitarian law by the State of Ha­wai‘i and its Counties and recognizing their effective control of Hawaiian territory in accordance with Article 42 of the 1907 Hague Regulations, the Council of Regency pro­claimed and recognized their existence as the administration of the occupying State on June 3, 2019.

The State of Hawai‘i and its Counties, under the laws and customs of war during occupation, can now serve as the administrator of Hawaiian Kingdom laws. Prior to the proclamation, the State of Hawai‘i and its Counties were established by virtue of U.S. Congressional legislation unlawfully imposed within Hawaiian territory, being the war crime of usurpation of sovereignty during military occupation. According to Professor Schabas, the action or conduct “of the offense of ‘usurpation of sovereignty’ would consist of the imposition of legislation or administrative measures by the occupying power that go beyond those required by what is necessary for military purposes of the occupation.”

The next step is to address the fact that Hawaiian Kingdom laws in 1893 are not up to date because of the non-compliance by the United States at the time of international law. Nevertheless, it is still a rule of international law that Hawaiian laws must be administered and not American laws, which is a war crime.

To address this issue, the Council of Regency on October 10, 2014, proclaimed provisional laws of the kingdom to be any and all American laws, whether federal, State of Hawai‘i or the Counties, that are not “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.” Accompanying the proclamation of provisional laws is a memorandum by the Chairman of the Council of Regency who provides a formula to be used when determining which American municipal laws can be the provisional laws of the kingdom.

In determining which American municipal laws shall constitute a provisional law of the kingdom, the following questions need to be answered. If any question is answered with “yes,” with the exception of question 5, then it is not to be considered a provisional law.

1. The first consideration begins with Hawaiian constitutional alignment. Does the American municipal law violate any provisions of the 1864 Constitution, as amended?

2. Does it run contrary to a monarchical form of government? In other words, does it promote a republican form of government.

3. If the American municipal law has no comparison to Hawaiian Kingdom law, would it run contrary to the Hawaiian Kingdom’s police power?

4. If the American municipal law is comparable to Hawaiian Kingdom law, does it run contrary to the Hawaiian statute?

5. Does the American municipal law infringe vested rights secured under Hawaiian law?

6. And finally, does it infringe the obligations of the Hawaiian Kingdom under customary international law or by virtue of it being a Contracting State to its treaties? The last question would also be applied to Hawaiian Kingdom laws enumerated in the Civil Code, together with the session laws of 1884 and 1886, and the Penal Code.

In his memorandum, the Chairman applied the formula to determine whether the State of Hawai‘i statutes on murder, manslaughter, and negligent homicide can be considered provisional laws of the kingdom. His conclusion was yes. The memo states that the State of Hawai‘i laws on murder, manslaughter and negligent homicide are not “’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.’ To the extent that the felony murder rule is omitted, the State of Hawai‘i law on murder would be consistent with the Hawaiian Kingdom law on murder.”

The final step is to draft a comprehensive plan of action for the State of Hawai‘i to transform itself into a military government to administer the laws of 1893 that are augmented with provisional laws while the State of Hawai‘i and its Counties are in effective control of Hawaiian territory. On April 7, 2023, the Chairman authored another memorandum on the role and function of the military government of Hawai‘i.

The memo first dispels with the American annexation of the Hawaiian Islands in 1898, the establishment of the Territory of Hawai‘i in 1900, and the changing of the name of the Territory to the State of Hawai‘i in 1959. Each of these acts stem from legislation by the United States Congress, which has no legal effect beyond the borders of  the United States. The memo then addresses the law of occupation and the duty of a military government of the occupying State to administer the laws of the occupied State. The legal status of the State of Hawai‘i under international humanitarian law is then addressed.

Under international law, the State of Hawai‘i is not an American government but rather a civilian armed force of the occupying State. It can claim no authority under American law because the American law that established the State of Hawai‘i in 1959 has no effect outside of United States borders, and when it is imposed in Hawaiian territory it constitutes the war crime of usurpation of sovereignty during military occupation. However, according to the memo, “Article 1 of the 1907 Hague Regulations provides that the laws, rights and duties of war apply not only to the occupying State’s army but also to its civilian armed forces. In other words, the State of Hawai‘i can exist within the confines of international humanitarian law and not American municipal laws.”

The memo then addresses the role and function of a military government. Under the heading of Military Government, the memo explains that there “is a difference between military government and martial law. While both comprise military jurisdiction, the former is exercised over territory of a foreign State under military occupation, and the latter over loyal territory of the State enforcing. Actions of a military government are governed by international humanitarian law while martial law is governed by the domestic laws of the State enforcing it.”

The memo then explains that according to the practice of the United States when establishing a military government in foreign territory, that responsibility is the Army and not the Navy, Marines or Air Force. Military governments usually take over the governmental infrastructure of the occupied State and can augment certain aspects of the infrastructure in order to effectively carry out the mission of a military occupation. In the Hawaiian situation, the memo states that there are four “essential tasks set forth in the Hague and Geneva Conventions […] as follows: (1) Restore and ensure public order and safety, (2) provide medical care, supplies and subsistence, (3) ensure the care and education of children, [and] (4) respect private property and properly manage public property.”

Because the Army is responsible for this function of the occupying State, it “took steps to prepare for military occupations by publishing two field manuals—FM 27-10, The Law of Land Warfare, and FM 27-5, Civil Affairs Military Government. Chapter 6 of FM 27-10 covers military occupation. Section 355 of FM 27-10 states, ‘[m]ilitary occupation is a question of fact. It presupposes a hostile invasion, resisted or unresisted, as a result of which the invader has rendered the invaded government incapable of publicly exercising its authority, and that the invader has successfully substituted its own authority for that of the legitimate government in the territory invaded.’ FM 27-10 has been superseded by FM 6-27, The Commander’s Handbook on the Law of Land Warfare. Chapter 6 covers occupation.”

The State of Hawai‘i official with the duty and obligation to transform the State of Hawai‘i and the Counties into a military government by proclamation is the Adjutant General who is in charge of the Army and Air National Guard. The memo explains that the “Adjutant General is trained in Army doctrine and regulations, to include the 1907 Hague Regulations and the 1949 Fourth Geneva Conventions, for this type of a situation in occupied territory, where a civilian is not. The Adjutant General would be the military governor that presides over a military government.”

The memo makes reference to the 1893 proclamation by the provisional government as an example to use in drafting a proclamation today. “Although unlawful, the proclamation of 17 January 1893 by the so-called provisional government can be useful as to the wording of the military governor’s proclamation today because government officials continued in place with the exception of Queen Lili‘uokalani, her Cabinet, and the Marshal of the police force. The laws were also continued to be in effect. In the situation now, government officials would remain in place, with exceptions not in line with the law of occupation, and the laws would continue to be in effect as provisional laws together with Hawaiian Kingdom laws that existed prior to 1893. The military governor’s proclamation would, in a sense, be a reversal of the provisional government’s proclamation and in line with the law of occupation.”

Following the proclamation of a military government, the memo states, “The first order of business for the military government would be to disband the legislative bodies of the State of Hawai‘i and the Counties in order to stop the enactment of American municipal laws. The function of a military government is to administer the laws of the occupied State, which in this case include certain American municipal laws, as situations of fact, that have become provisional laws of the Hawaiian Kingdom in accordance with the formula to determine which American municipal laws can be considered provisional laws of the kingdom.”

The memo then states, “Second order of business is for the military governor to determine which American municipal laws can be considered the provisional laws of the Hawaiian Kingdom during the American military occupation that augments and not replaces the Civil Code, together with the session laws of 1884 and 1886, and the Penal Code. These provisional laws will need to be made public by proclamation of the military governor. Paragraph 6-53 of FM 6-27 states that “the population of the occupied territory must be informed of any alteration, suspension, or repeal of existing laws and of the enactment of new laws.” The memo concludes with:

In light of the legal opinion on war crimes related to the United States belligerent occupation of the Hawaiian Kingdom by Professor Schabas on 25 July 2019, a renowned jurist and expert on international criminal law, genocide and war crimes, and the oral statement given to the United Nations Human Rights Council on 22 March 2022 by two NGOs—International Association of Democratic Lawyers and the American Association of Jurists that war crimes are being committed in Hawai‘i, it should warrant the Adjutant General to take this matter seriously because of the legal consequences of the United States’ violation of international humanitarian law for over a century.

The only way to stop war crimes from being committed with impunity by State of Hawai‘i and County officials is to comply with the law of occupation. In Army jargon, this is a command decision to be made at the top of the chain of command.

Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova

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17

International Criminal Court Press Release
March 17, 2023

Today, 17 March 2023, Pre-Trial Chamber II of the International Criminal Court (“ICC” or “the Court”) issued warrants of arrest for two individuals in the context of the situation in Ukraine: Mr Vladimir Vladimirovich Putin and Ms Maria Alekseyevna Lvova-Belova.

Mr Vladimir Vladimirovich Putin, born on 7 October 1952, President of the Russian Federation, is allegedly responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute). The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022. There are reasonable grounds to believe that Mr Putin bears individual criminal responsibility for the aforementioned crimes, (i) for having committed the acts directly, jointly with others and/or through others (article 25(3)(a) of the Rome Statute), and (ii) for his failure to exercise control properly over civilian and military subordinates who committed the acts, or allowed for their commission, and who were under his effective authority and control, pursuant to superior responsibility (article 28(b) of the Rome Statute).

Ms Maria Alekseyevna Lvova-Belova, born on 25 October 1984, Commissioner for Children’s Rights in the Office of the  President of the Russian Federation, is allegedly responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute). The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022. There are reasonable grounds to believe that Ms Lvova-Belova bears individual criminal responsibility for the aforementioned crimes, for having committed the acts directly, jointly with others and/or through others (article 25(3)(a) of the Rome Statute).

Pre-Trial Chamber II considered, based on the Prosecution’s applications of 22 February 2023, that there are reasonable grounds to believe that each suspect bears responsibility for the war crime of unlawful deportation of population and that of unlawful transfer of population from occupied areas of Ukraine to the Russian Federation, in prejudice of Ukrainian children.

The Chamber considered that the warrants are secret in order to protect victims and witnesses and also to safeguard the investigation. Nevertheless, mindful that the conduct addressed in the present situation is allegedly ongoing, and that the public awareness of the warrants may contribute to the prevention of the further commission of crimes, the Chamber considered that it is in the interests of justice to authorise the Registry to publicly disclose the existence of the warrants, the name of the suspects, the crimes for which the warrants are issued, and the modes of liability as established by the Chamber.

The abovementioned warrants of arrests were issued pursuant to the applications submitted by the Prosecution on 22 February 2023.