Whether by chance or design, the term “self-determination” is used to confuse an already confusing situation regarding Hawai‘i. The term is constantly applied as a sound bite employed by individuals who don’t have an understanding of its application. In news coverage of the so-called nation building process of Native Hawaiians, the term is so constantly used that it lost its meaning or that its true meaning was never known in the first place.

In her 1991 law article titled, Historical and Contemporary Hawaiian Self-Determination: A Native Hawaiian Perspective (8 Ariz. J. Int’l & Comp. L. 77), Mililani Trask wrote, “Since [Native] Hawaiians never surrendered their political rights through treaties nor voted on annexation, they fall under the United Nations category of a ‘non-self-governing people.’” Is Mililani correct? This begs the question, what is the United Nations definition of “non-self-governing”? And based on this definition, does it apply to Hawai‘i? To know what is “non-self-governing,” we need to know first the definition of “self-governing.”

Since its creation in 1945, the United Nations defines self-governing three ways: first, as an independent State, second, a State in association with another State, and, third, total incorporation into an existing State, all three of which can only occur through consent of the particular people. The process of consent is called “self-determination,” which is also referred to as “nation building.” Consequently, the term “non-self-governing” is a people who are neither an independent State, a State in association with another State, or have been totally incorporated into an existing State.” This is consistent with Encyclopedia Britannica’s definition of self-determination, which is “the process by which a group of people, usually possessing a certain degree of national consciousness, form their own state and choose their own government.”

The principle of self-determination is always opposed to the State and is not an attribute of a State. In other words, States do not have a right to self-determination, but rather an obligation for member States of the United Nations since 1945, to recognize that peoples, who are non-States, have this right to choose for themselves their form of governance. In the Charter of the United Nations, Article 1 provides, “The Purposes of the United Nations are…to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.” For the purpose of self-determination, the term “people” or “peoples” are not the State, but rather reside within the State.

What has to be kept in mind was that when the Charter was drafted in 1945 the term “self-determination of peoples” was specifically referring to “Mandate” and “Trust” territories that were under the administration of States since the end of the First World War, and colonial territories of the victors of the Second World War under Article 73(e) of the United Nations Charter. Mandate territories were former territorial units of Germany and the Ottoman Empire that were taken under the control of members of the League of Nations, and Trust territories were former mandate territories under the League of Nations, and territories formerly held by Japan prior to the Second World War. The victors of the Second World War also were required to regularly report the status of their colonial territories, being non-self-governing, on the position where each of its territories stood toward self-governance. The administration of territories, however, and the fostering of self-determination, remained with the colonial State, unlike the Mandate and Trust territories. Article 73(b) of the UN Charter requires the administrating State “to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions.”

These territorial units were often referred to as colonial territories of empires that were comprised of different people than that of the citizenry of the colonial power. An example of a Mandate territory is Iraq, being a former colonial territory of the Ottoman Empire, under the administration of the United Kingdom after the First World War. Iraq achieved independence as an independent State in 1932. The Federated States of Micronesia was a Trust territory under the administration of the United States of America. Micronesia achieved independence as a State in association with the United States in 1986. Fiji was an Article 73(e) territory that achieved independence as a State from the United Kingdom in 1970. Iraq, Micronesia, and Fiji, as non-self-governing territories, exercised self-determination in order to achieve self-governance and became independent sovereign States.

Indigenous people, however, are not placed on the same status as Mandate, Trust or Article 73(e) territories. Indigenous peoples are peoples that reside within the territories of the State themselves, which are not considered under international law as colonial territories. According to the United Nations Special Rapporteur Jose Martinez Cobo of the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities, self-determination “constitutes the exercise of free choice by indigenous peoples, who must, to a large extent, create the specific content of this principle, in both its internal and external expressions, which do not necessarily include the right to secede from the State in which they live and to set themselves up as sovereign entities. This right may in fact be expressed in various forms of autonomy within the State.” Autonomy and independence are not synonymous, whereby the former is governance “within” a State and the latter is governance “separate” from the State.

In 2001, the United States confirmed Cobo’s definition of self-determination for indigenous peoples. According to the United States National Security Council, “Indigenous peoples have a right of internal self-determination. By virtue of that right, they may negotiate their political status within the framework of the existing nation-state and are free to pursue their economic, social, and cultural development. Indigenous peoples, in exercising their right of internal self-determination, have the internal right to autonomy or self-government in matters relating to their local affairs, including determination of membership, culture, language, religion, education, information, media, health, housing, employment, social welfare, maintenance of community safety, family relations, economic activities, lands and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions.”

The original members of the United Nations only numbered 51 States, and through self-determination of peoples, the membership of the United Nations grew exponentially to 193, which were all former non-self-governing peoples. In 1843, the Hawaiian Kingdom achieved international recognition of independence as a State in the nineteenth century, what one hundred forty two States, including Iraq, Micronesia and Fiji, achieved in the twentieth century. The United Nations is an international organization of States, but not all States are members of the United Nations. Switzerland is an example of a State that was not a member of the United Nations until 2002. The Hawaiian Kingdom, as well, is not a member of the United Nations, but is an independent and sovereign State today.

In 1946, the United States disguised the prolonged occupation of the Hawaiian Kingdom, by reporting Hawai‘i to the United Nations under Article 73(e) of the UN Charter as if it was a non-self-governing territory of the United States. This began the deception that Hawai‘i was annexed as a colonial territory to the United States, which formed the foundation for the use of the terms today such as colonization, indigenous rights, and self-determination that only reinforces the illusion that Hawai‘i is a part of the United States.

Self-determination does not apply to Hawai‘i, because Hawai‘i already attained the international status as an independent State in the nineteenth century, like Iraq, Micronesia and Fiji in the twentieth century, which was confirmed by the Permanent Court of Arbitration during arbitral proceedings from 1999-2001, in Larsen v. Hawaiian Kingdom. The concept of indigenous people, as well, does not apply to the natives of Hawai‘i, because the Hawaiian Islands remain the territory of the Hawaiian Kingdom and not the United States, and that the natives of Hawai‘i are the ones who comprised the majority of the citizenry of the Hawaiian Kingdom as an independent and sovereign State.