There may be confusion between resolving a dispute between the Hawaiian Kingdom and the United States, and enforcement regarding the United States violations of international law since January 16, 1893, when US troops invaded a sovereign and independent State.
A dispute did exist between the Hawaiian Kingdom and the United States when the Hawaiian government was overthrown on January 17, 1893. Queen Lili‘uokalani stated in her conditional surrender to the United States that “I yield to the superior force of the United States of America, whose minister plenipotentiary, has caused United States troops to be landed at Honolulu and declared that he would support the said provisional government.” But in a letter from the Secretary of State John Foster to President Benjamin Harrison, “At the time the provisional government took possession of the Government buildings no troops or officers of the United States were present or took any part whatever in the proceedings.”
The Hawaiian Kingdom was claiming the overthrow was a result of an invasion by the United States, and the United States was claiming that the provisional government was established by a successful revolution without any participation of US troops. President Grover Cleveland, who succeeded President Harrison, stated to the Congress that “The truth or falsity of [the Queen’s] protest was surely of the first importance. If true, nothing but the concealment of its truth could induce our Government to negotiate with the semblance of a government thus created, nor could a treaty resulting from the acts stated in the protest have been knowingly deemed worthy of consideration by the Senate. Yet the truth or falsity of the protest had not been investigated.”
President Cleveland initiated an investigation on March 11, 1893, with the appointment of James Blount, former chairman of the House Committee of Foreign Affairs, as Special Commissioner. Commissioner Blount arrived in the Hawaiian Islands late March and began his investigation on April 1st. He sent periodic reports to Secretary of State Walter Gresham in Washington, D.C., and on July 17, 1893, he submitted his final report.
After going over the reports submitted by Commissioner Blount, Secretary of State Gresham stated in a letter to the President on October 18, 1893, “Refusing to recognize the new authority or surrender to it, [the Queen] was informed that the Provisional Government had the support of the American minister, and, if necessary, would be maintained by the military force of the United States then present; that any demonstration on her part would precipitate a conflict with that force; that she could not, with hope of success, engage in war with the United States, and that resistance would result in a useless sacrifice of life.” Gresham further stated:
When [the Queen’s protest] was prepared at the conclusion of the conference, and signed by the Queen and her ministers, a number of persons, including one or more representatives of the Provisional Government, who were still present and understood its contents, by their silence, at least, acquiesced in its statements, and, when it was carried to President Dole, he [endorsed] upon it, “Received from the hands of the late cabinet this 17th day of January, 1893,” without challenging the truth of any of its assertions.
The dispute of these facts were resolved and Queen Lili‘uokalani was proven correct. In his message to the Congress on December 18, 1893, President Cleveland concluded that the provisional government “was neither a government de facto nor de jure,” but rather self-proclaimed. He went further and stated, “that a candid and thorough examination of the facts will force the conviction that the provisional government owes its existence to an armed invasion by the United States.”
Through executive mediation between the Queen and the new U.S. Minister to the Hawaiian Islands, Albert Willis, that lasted from November 13 through December 18, 1893, an agreement of peace was reached. According to the executive agreement, by exchange of notes, the President committed to restoring the Queen as the Executive Monarch, and the Queen, after being restored, to grant a full pardon to the insurgents. Political wrangling in the Congress, however, blocked President Cleveland from carrying out his obligation of restoration of the Queen.
Five years later during the Spanish-American War, the United States Congress enacted a joint resolution of annexation, and President Cleveland’s successor, President William McKinley, signed it into U.S. law on July 7, 1898. The legislation of every independent State, including the United States, through its Congress, are confined in their operation within the territorial borders of the State that enacted the legislation.
In The Lotus case, the Permanent Court of International Justice stated in 1927 that “the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside of its territory except by virtue of a permissive rule derived from international custom or from a convention.” Since 1898, the United States has been unlawfully imposing American municipal laws over the territory of the Hawaiian Kingdom in violation of international laws and the law of occupation.
There is no dispute between the Hawaiian Kingdom and the United States. Instead, there is the lack of enforcement of international law regarding the United States prolonged and illegal occupation of the Hawaiian Kingdom since 1893.
Enforcement of international law is through the governments of States. Enforcement of international law had been asymmetrical and often called the Achilles heel of international law. From April 25 to June 26, 1945, fifty States met in San Francisco who eventually signed the United Nations Charter with the hope that the new organization would prevent another world war.
The United Nations began to address the subject of enforcement of international law. After nearly forty-years of critical review and analysis, the Articles of State Responsibility for Internationally Wrongful Acts was accepted by vote of the United Nations General Assembly in October 2002. By this resolution, the member States of the United Nations accepted the Articles as a reflection of customary international law, which is binding upon all States in the international system whether they are members of the United Nations or not. The main Articles include:
Article 30. The State responsible for the internationally wrongful act is under an obligation to cease that act, if it is continuing.
Article 31. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.
Article 32. The responsible State may not rely on the provisions of its internal law as justification for failure to comply with its obligations under international law.
Article 35. A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed.
Article 41(1). States shall cooperate to bring to an end through lawful means any serious breach of international law.
Article 41(2). No State shall recognize as lawful a situation created by a serious breach of international law, nor render aid or assistance in maintaining that situation.
In a deliberate move to enforce compliance with international law, the International Association of Democratic Lawyers (IADL) and the American Association of Jurists—Asociación Americana de Juristas (AAJ), sent a joint letter to all the Embassies accredited to the United Nations in New York City and in Geneva regarding the prolonged and illegal belligerent occupation of the Hawaiian Kingdom by the United States since January 17, 1893. The joint letter was sent on February 16, 2022. The Hawaiian Kingdom’s Attorney General received a copy of the letter by email from the IADL and the AAJ on February 18. In its joint letter to the ambassadors to the United Nations, the IADL and the AAJ stated:
For the restoration of international law and the tenets of the UN Charter, the IADL and the AAJ calls upon the United States to immediately comply with international humanitarian law and the law of occupation in its prolonged and illegal occupation of the Hawaiian Islands.
The IADL and the AAJ fully supports the NLG’s 10 November 2020 letter to State of Hawai‘i Governor David Ige urging him to “proclaim the transformation of the State of Hawai‘i and its Counties into an occupying government pursuant to the Council of Regency’s proclamation of June 3, 2019, in order to administer the laws of the Hawaiian Kingdom. This would include carrying into effect the Council of Regency’s proclamation of October 10, 2014, that bring the laws of the Hawaiian Kingdom in the nineteenth century up to date.”
We urge all UN Member States to comply with the Articles of State Responsibility for Internationally Wrongful Acts (2001). The U.S. violation of the Hawaiian Kingdom’s sovereignty and its failure to comply with international humanitarian law for over a century is an internationally wrongful act. As such, UN Member States have an obligation to not “recognize as lawful a situation created by a serious breach…nor render aid or assistance in maintaining that situation,” and member States “shall cooperate to bring to an end through lawful means any serious breach [by a member State of an obligation arising under a peremptory norm of general international law].”
Both the IADL and the AAJ, as non-governmental organizations, have special consultative status with the United Nations Economic and Social Council and are accredited to participate in the Human Rights Council’s sessions as Observers. The IADL and the AAJ are planning to bring this to the attention of the United Nations Human Rights Council at its 49th session when it convenes on February 28, 2022, in Geneva, Switzerland.