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.