Today the United States filed its Reply to the Hawaiian Kingdom’s Opposition to their Motion to Dismiss. At no point in these proceedings has the United States countered the facts and evidence provided by the Hawaiian Kingdom. In other words, the facts of this case have not been contested and, as such, are considered in favor of the Hawaiian Kingdom in its effort to have the federal court transform itself into an Article II Occupation Court.
This is also the first time ever where the United States had to present their position as to its claim of sovereignty over the Hawaiian Islands. In all prior cases that came before the federal courts, the United States relied on the judges of these courts to dismiss the cases because it presents a political question. The political question doctrine prevents federal courts from recognizing the sovereignty of a country if, and only if, the political branches of the President and/or Congress had not already recognized that sovereignty.
In other words, a federal court cannot assert the political question doctrine if a country such as Switzerland filed a complaint in the U.S. District Court in Washington, D.C., against certain officials of the United States because the United States recognized Switzerland as a sovereign and independent State and entered into a treaty of friendship, commerce and extradition with the Swiss government on November 25, 1850.
This is exactly the same situation with the Hawaiian Kingdom where the United States recognized the Hawaiian Kingdom as a sovereign and independent State on July 6, 1844, and entered into a treaty of friendship, commerce and navigation with the Hawaiian Kingdom on December 20, 1849. Just as the United States has a treaty with Switzerland so does the Hawaiian Kingdom has a treaty of friendship, establishment and commerce with Switzerland dated July 10, 1864. The political question doctrine does not apply to the Hawaiian Kingdom but it has been used as an expedient remedy to temporarily protect the United States in its own courts.
In its Motion to Dismiss, the United States takes the position that it has sovereignty over the Hawaiian Islands because the Congress passed a joint resolution of annexation in 1898 and in 1959 Hawai‘i became the 50th State of the Federal Union. This is a frivolous claim because United States laws, which includes the federal constitution, have no force and effect beyond the borders of the United States. If this is true, the United States Congress can pass a joint resolution annexing Canada today. Only by a treaty can one country acquire the territory of another country. As pointed out by the United States Supreme Court, in United States v. Curtiss-Wright Corp., in 1936:
“Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens, and operations of the nation in such territory must be governed by treaties, international understandings and compacts, and the principles of international law. As a member of the family of nations, the right and power of the United States in that field are equal to the right and power of the other members of the international family. Otherwise, the United States is not completely sovereign.”
This is consistent at the international level where the Permanent Court of International Justice, in The Lotus Case (France v. Turkey), stated, in 1927, “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.”
The U.S. District Court claims to be an Article III Court by virtue of Article III of the U.S. Constitution, which provides for the authority of the Judiciary. Because the Supreme Court in Curtiss-Wright stated that “Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory,” the U.S. District Court in Hawai‘i cannot claim to be an Article III Court because the U.S. Constitution has no force in foreign territory. It can only exist as an Article II Court under the President’s authority as the commander-in-chief of the armed forces in foreign territory. As stated in the Amicus Brief:
“Under the concept of void ab initio, there are structures that have no legal effect from inception. The United States occupation of Hawai‘i began with unclean hands, and this can only be remedied by a clean slate and a new beginning.”
In the Hawaiian Kingdom’s Opposition to the Motion to Dismiss, it stated that the United States cannot rely on its internal laws, which includes federal court decisions that dismissed cases under the political question doctrine, for its failure to perform its obligation under international law. Under international law, the United States is obligated to administer the laws of the Hawaiian Kingdom because it still exists as a sovereign and independent State despite that its government was illegally overthrown on January 17, 1893. The Permanent Court of Arbitration (PCA), in Larsen v. Hawaiian Kingdom, acknowledged the continued existence of the Hawaiian Kingdom as a State in 1999 and the Council of Regency as its restored government.
In its Reply, the United States continued to attempt to confuse the Court by stating what the Arbitration Tribunal stated and what the PCA did as explained by Italian scholar Professor Federico Lenzerini in his legal opinion, which is attached to the Hawaiian Kingdom’s Motion for Judicial Notice as Exhibit 1. As the Hawaiian Kingdom clearly explained in all of its pleadings to include its Opposition to the Motion to Dismiss, there is a very clear distinction between the institutional jurisdiction of PCA, which is an inter-governmental organization, and the subject matter jurisdiction of the Arbitral Tribunal that is established by the PCA.
In accordance with Article 47 of the 1907 Convention that established the PCA, it allows access to the institutional jurisdiction of the PCA by States that have not signed and ratified the 1907 Convention, which are called non-contracting States. As the Hawaiian Kingdom is not a contracting State to the 1907 Convention, it would have access to the PCA’s institutional jurisdiction under Article 47.
The Arbitral Tribunal in the Larsen case was established in accordance with Article 47 as stated in the PCA’s Annual Reports from 2000 to 2011. If the Hawaiian Kingdom was not a State under international law, there would not have been a Larsen v. Hawaiian Kingdom case. The United States stated in their Reply:
“The primary authority cited as support for Plaintiff’s theory remains Prof. Lenzerini’s interpretation of the significance of the decision by the International Bureau of the Permanent Court of Arbitration (“PCA”) to institute an arbitration involving Plaintiff. The arbitral award explicitly rejects this inference. It demonstrates that the PCA refused to reach a conclusion about Plaintiff’s sovereignty. Nonetheless, even if Plaintiff’s interpretation of the PCA’s actions were correct, it would not matter. The questions raised by Plaintiff and Prof. Lenzerini are classic political questions about the recognition of state sovereignty that the Court has no jurisdiction to answer.”
This statement is convoluted and a word salad. Foremost, the United States implies that the PCA and the Arbitral Tribunal are one in the same when it stated that the “PCA refused to reach a conclusion about Plaintiff’s sovereignty.” This is a false statement because the PCA did reach a conclusion “about Plaintiff’s sovereignty” when it formed the Tribunal on June 9, 2000. The proceedings were initiated on November 8, 1999, but the International Bureau had to be sure that the Hawaiian Kingdom existed as a State before it could form the Tribunal in the first place.
The United States relies on what the Tribunal stated in its Award that “in the absence of the United States of America [as a party], the Tribunal can neither decide that Hawaii is not part of the USA, nor proceed on the assumption that it is not.” What the United States leaves out is that it was the Hawaiian Kingdom that requested the Tribunal to declare that the Hawaiian Kingdom exists as a State. The request was made because the 2000 Annual Report acknowledging the Hawaiian Kingdom’s existence as a State in accordance with Article 47 did not come out yet.
The Hawaiian Kingdom also knew that even if the Tribunal did pronounce the Hawaiian Kingdom’s existence as a State without the participation of the United States in the proceedings it would only apply and be binding between Larsen and the Hawaiian Kingdom. As stated under Article 59 of the Statute of the International Court of Justice (ICJ), decisions of the ICJ have “no binding force except between the parties and in respect of that particular case.” And as stated by ICJ Judge Thomas Buergenthal before the membership of the American Society of International law in 2009:
“It is clear, of course, that the doctrine of stare decisis is not part of international law. For states not parties to a case, judgments of the ICJ and of some other international courts are formally not lawmaking in character in the sense in which decisions of Common Law courts are binding precedents within their respective jurisdictions.”
The existence of the Hawaiian Kingdom as a State is a question of fact and not a question of law to be decided by an international court because independent States are co-equal to each other and cannot be subjected to an international court unless it consents to its jurisdiction to preside over the dispute. To allow an international court to determine whether a State exists undermines the sovereignty of the State in the first place. Furthermore, to give consent to an international court the party to the case has to be a State in the first place. The United States is trying to argue the significance of an egg without acknowledging the chicken that laid the egg by arguing the egg and the chicken are the same thing.
When the United Nations was considering an Advisory Opinion by the ICJ on the status of Palestine in 1948, Israeli Foreign Minister Eban argued that the “existence of a State is a question of fact and not of law.” Professor Oppenheim also stated, “The formation of a new State is…a matter of fact, and not law.” The Hawaiian Kingdom is not a new State but rather an existing State since the nineteenth century and the United States has not contested the facts that show this.
Because the United States Motion to Dismiss was filed after the Hawaiian Kingdom’s Motion for Judicial Notice of Civil Law that explains the actions taken by the PCA in acknowledging the existence of Hawaiian Statehood, the judge will have to make that determination first. When the Court has transformed itself into an Article II Occupation Court it can then take up the Motions to Dismiss filed by the United States and the Swedish Consul, and also the Statement of Interest by the United States because it would have jurisdiction to address the arguments. But then again, when the Court transforms into an Article II Occupation Court, the Motions to Dismiss and the Statement of Interest are moot and fall to the ground.
Right now it doesn’t have jurisdiction because it is not within the territory of the United States but rather sits within the territory of the Hawaiian Kingdom, being an occupied State. The United States at no time in these proceedings presented any counter evidence, such as a treaty, that the Hawaiian Islands have been ceded to the United States. They solely rely on Congressional law and not international law.
The United States has backed itself into a corner that it cannot get out of and appears to be relying on the Court to try to get it out of a predicament of its own making since 1893. Based on the evidence before this Court and the involvement of 30 other countries that have Consulates in the Hawaiian Kingdom in the case, and the authors of the Amicus Brief, which are the International Association of Democratic Lawyers, the National Lawyers Guild, and the Water Protectors Legal Collective, all of whom are organizations of lawyers and jurists at both the international and national levels, the Court is bound to follow the rule of law and grant the Hawaiian Kingdom’s Motion for Judicial Notice. The United States has given no credible reason for the Court to not take judicial notice, which would lead to the transformation of the Court from an Article III Court to an Article II Occupation Court.