Were There Two American Occupations of Hawai‘i or Just One?

Camp McKinley 1898

There is a fundamental question regarding the American occupation of the Hawaiian Kingdom that rests on two positions. The first proposition is that the American occupation began on January 17, 1893 at the time of the illegal overthrow of the Hawaiian “government” and ended when American troops were ordered to vacate Hawaiian territory on April 1, 1893 by Presidential investigator James Blount. And that a second American occupation began on August 12, 1898 during the Spanish American War which has lasted to date. The second proposition is that the American occupation began on January 17, 1893 and has remained a belligerent occupation ever since.

What is fundamental and crucial in precisely determining this question of occupation is that occupation triggers the law of occupation, which follows an invasion. When occupation comes to an end so do the laws occupation. This is separate and distinct from the laws and customs of war triggered by an invasion, and the law of occupation that mandates the occupier to provisionally administer the laws of the occupied State under Section III (Articles 42-56) of the 1899 Hague Convention, II, which was later superseded by Section III (Articles 42-56) of the 1907 Hague Convention, IV, and the 1949 Geneva Convention, IV.

At the center of occupation is “effectiveness.” In other words, territory is only occupied when it comes under the effective control of a foreign state’s military. For without effectiveness, the occupier would not be able to carry out the duties and obligations of an occupier under international law in the administration of the laws of the occupied State.

Although an invasion of territory would trigger the laws and customs of war on land, it does not simultaneously trigger the laws of occupation, because the invasion may be transient and ongoing. But when the invader becomes fixed and establishes its authority it triggers the laws of occupation. Article 42 of the 1899 Hague Convention, II, which was considered customary international law at the time, states that, “Territory is considered occupied when it is actually place under the authority of the hostile army. The occupation applies only to the territory where such authority is established, and in a position to assert itself.” Article 42 of the 1907 Hague Convention, IV, is relatively the same except for minor changes in wording.

At first glance, Article 42 refers to the presence of a “hostile army.” So if we were to look at the U.S. troops that were present in Honolulu on January 17, 1893, we need to determine at what point were they in a position of established authority. In his message of December 18, 1893, President Cleveland apprised the Congress that when U.S. troops landed in Honolulu on Monday January 16 it was an invasion. Cleveland stated, “The men, upwards of 160 in all, were supplied with double cartridge belts filled with ammunition and with haversacks and canteens, and were accompanied by a hospital corps with stretchers and medical supplies. This military demonstration upon the soil of Honolulu was of itself an act of war.” Cleveland further states that, “the military occupation of Honolulu by the United States on the day mentioned was wholly without justification, either as an occupation by consent or as an occupation necessitated by dangers threatening American life and property.”

The question, however, from a strictly legal standpoint, did the U.S. troops establish its authority under the law of occupation, and, if so, to what extent did this authority extend regarding territorial control. The troops were occupying a very small defensive position between two buildings—Music Hall and Arian Hall, on Mililani Street. Cleveland explained to the Congress,

Cleveland“The United States forces being now on the scene and favorably stationed, the committee proceeded to carry out their original scheme. They met the next morning, Tuesday, the 17th, perfected the plan of temporary government, and fixed upon its principal officers, ten of whom were drawn from the thirteen members of the Committee of Safety. Between one and two o’clock, by squads and by different routes to avoid notice, and having first taken the precaution of ascertaining whether there was any one there to oppose them, they proceeded to the Government building almost entirely without auditors. It is said that before the reading was finished quite a concourse of persons, variously estimated at from 50 to 100, some armed and some unarmed, gathered about the committee to give them aid and confidence. This statement is not important, since the one controlling factor in the whole affair was unquestionably the United States marines, who, drawn up under arms and with artillery in readiness only seventy-six yards distant, dominated the situation.”

US troops 1893

Cleveland was not explaining an occupation that would invoke the law of occupation, but rather an invasion and regime change. But on February 1, 1893, the United States diplomat, John Stevens, declared the Hawaiian Islands to be an American protectorate. So from a position of international law it would be February 1 that would trigger the duty and obligations of the law of occupation because it would appear that this date is where the United States gained effective control of foreign territory and established its authority over it.

However, if you add to the mix the so-called Provisional Government it presents a very different picture. First, the President told Congress that the provisional government was neither a de jure government, which is the lawful government, nor a de facto government, which by definition under international law is a successful revolution. A de facto government has to be in effective control of all the governmental machinery of the government it is revolting against, before it can be considered de facto, because when it is not it is still in a state of revolt and the treason statute would apply. This is why the United States of America was not considered a de facto government until after King George III signed the Treaty of Paris on September 3, 1783, that ended the seven year revolt. When the British colonies declared their independence on July 4, 1776 they became insurgents who committed treason to the British government.

Cleveland addressed this requirement of international law when he stated to the Congress, “That it was not in such possession of the Government property and agencies as entitled it to recognition is conclusively proved by a note found in the files of the Legation at Honolulu, addressed by the declared head of the provisional government to Minister Stevens, dated January 17, 1893, in which he acknowledges with expressions of appreciation the Minister’s recognition of the provisional government, and states that it is not yet in the possession of the station house (the place where a large number of the Queen’s troops were quartered), though the same had been demanded of the Queen’s officers in charge. Nevertheless, this wrongful recognition by our Minister placed the Government of the Queen in a position of most perilous perplexity. On the one hand she had possession of the palace, of the barracks, and of the police station, and had at her command at least five hundred fully armed men and several pieces of artillery. Indeed, the whole military force of her kingdom was on her side and at her disposal, while the Committee of Safety, by actual search, had discovered that there were but very few arms in Honolulu that were not in the service of the Government. In this state of things if the Queen could have dealt with the insurgents alone her course would have been plain and the result unmistakable. But the United States had allied itself with her enemies, had recognized them as the true Government of Hawaii, and had put her and her adherents in the position of opposition against lawful authority.”

The insurgents seized control of the de jure Government of the Queen under the protection of U.S. troops, and thereafter compelled everyone in Government to sign oaths of allegiance. By unlawfully seizing the reigns of government in violation of international law, it does not transform itself into a de jure government. It is a state of emergency born out of a violation of international law. Therefore, if the so-called Provisional Government was not a government at all, but rather enemies of the State who committed high treason under Hawaiian law, then what would it be classified as for the purposes of international law since the United States was its creator. Yes it could be called a puppet of the United States, but this does not mean anything under international law and the law of occupation.

Under international law, the Provisional Government would be classified as an American “militia” illegally established on Hawaiian territory by the United States. Article 1 of the 1899 Hague Convention, II, states, “The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions: 1. To be commanded by a person responsible for his subordinates; 2. To have a fixed distinctive emblem recognizable at a distance; 3. To carry arms openly; and 4. To conduct their operations in accordance with the laws and customs of war.” This Article remained unchanged in the 1907 Hague Convention, IV.

There can be no doubt that the American militia called the Provisional Government began to be in effective control as a result of U.S. intervention, but this effectiveness did not reach its peak on January 17. It was a gradual escalation of effectiveness that began to grow from the city of Honolulu to the outlying government offices on the outer islands. But when the U.S. diplomat established protectorate status on February 1, this could be definitive as to when the law of occupation was triggered. Up to this point it was an invasion and not an occupation for the purposes of international law. Although U.S. troops departed Hawaiian territory on April 1, 1893, the American militia maintained itself through the hiring of mercenaries from the United States.

On July 4, 1894, the American militia changed its name to the Republic of Hawai‘i and continued to have government officers and employees sign oaths of allegiance under threat of American mercenaries who continued to be employed by the insurgency. The proclamation of the insurgents stated, “it is hereby declared, enacted and proclaimed by the Executive and Advisory Councils of the Provisional Government and by the elected Delegates, constituting said Constitutional Convention, that on and after the Fourth day of July, A.D. 1894, the said Constitution shall be the Constitution of the Republic of Hawaii and the Supreme Law of the Hawaiian Islands.”

On April 30, 1900, the U.S. Congress by statute changed the name of the American militia called the Republic of Hawai‘i to the Territory of Hawai‘i. The Territorial Act provided, that “the laws of [the Republic of Hawai‘i] not inconsistent with the Constitution or laws of the United States or the provisions of this Act shall continue in force,” and that “all persons who were citizens of the Republic of Hawaii on August twelfth, eighteen hundred and ninety-eight, are hereby declared to be citizens of the United States and citizens of the Territory of Hawai‘i.”

On March 18, 1959, the U.S. Congress again by statute changed the name of the American militia called the Territory of Hawai‘i to the State of Hawai‘i. The Statehood Act provided that all “Territorial laws in force in the Territory of Hawaii at the time of its admission into the Union shall continue in force in the State of Hawaii, except as modified or changed by this Act or by the constitution of the State, and shall be subject to repeal or amendment by the Legislature of the State of Hawaii.” The State of Hawai‘i today is an American militia and not a government.

Therefore, when we add the American militia that was formerly called the Provisional Government, the Republic of Hawai‘i, the Territory of Hawai‘i and now the State of Hawai‘i, into the equation and not just the physical presence and effective control of U.S. troops whether in 1893 or 1898, international law would recognize the beginning of the belligerent occupation to be February 1, 1893, which continues to date. The American occupation of the Hawaiian Kingdom is the longest ever in the history of international relations that emerged since the Treaty of Westphalia in 1648.

13 thoughts on “Were There Two American Occupations of Hawai‘i or Just One?

  1. Yes, it appears clear to me, that we have had iterations of racketeer groups running our Aina. The crafty and wily intrigue and the people involved, will have it’s day of revelation and all who collaborated in its making. From the very beginning of the bible carrying missionary, the military, to this very day of the Inouye/Akaka hand shaking in the depths of Washington’s Capitol Hill. When all is said an done it will be an Mo’olelo/Epic Story for all time.

    I am grateful to all our Me’e contemporaries, who have and continue to put themselves forth to provide for this intrepid course with their Wisdom, to Restore and Reestablish our Hawaiian Nation and its Continuity. Mahalo nui ia oukou apau.

  2. Mahalo for the clarification!

    Wow! A lot more to consider, adding even more on the spin! 🙂

    I focused on the January 17, 1893, assignment agreement as the transfer
    of effective control of authority and the subsequent protectorate status the
    result of that assignment and the unfulfilled December 18, 1893, restoration
    agreement the terms of conclusion.

    It now appears to me that the February 1, 1893, protectorate status invoked
    by U.S. minister Stevens procured effective control over the Hawaiian Islands
    that triggered U.S. occupation over the Hawaiian Kingdom.

    What is unclear is the reason and authority for minister Stevens to have invoke
    the protectorate status over Hawaii?

    1. The Queen entered into the January 17, 1893, assignment agreement,
    temporarily transferring her executive authority to the superior force of the
    U.S. primarily for it to investigate the reason why its military troops landed
    on Hawaiian soil without just cause. (This is where I believed authority
    originated and protectorate status implemented so the U.S. would have
    control in order to conduct its investigation within Hawaiian jurisdiction,)

    2. We know that American lives and properties were not threatened and the
    Provisional Government according to President Cleveland was found to be
    neither de facto nor de jure and their actions a revolt. (Authority from the
    Provisional Government for minister Stevens to invoke protectorate status
    over the Hawaiian Islands to protect American lives and property from the
    Hawaiian Queen’s government would’ve been improper because they did
    not yet have control over the Hawaiian Kingdom government.)

    3. Minister Stevens, under his own U.S. plenipotentiary authority necessitates
    the protectorate status over Hawaii in order to protect the Provisional
    Government, an American militia, from the lawful Hawaiian government and
    making the unlawful now lawful in accordance to his action. (The protectorate
    status implemented under this situation would also be improper as it would
    provide an avenue for High Contracting authorities to pair with favorable
    entities to topple lawful governments even without cause.)

    4. The implementation of protectorate status whether with or without cause
    once initiated by any authority authorized to do so triggers occupation status
    and they become responsible under it. From above, Cleveland states:
    “the military occupation of Honolulu by the United States on the day mentioned
    was wholly without justification, either as an occupation by consent or as an
    occupation necessitated by dangers threatening American life and property.”
    To me, I believe the triggered occupation on February 1, 1893, fit under this.

    The de facto Provisional Government could not have survived without that
    protectorate status. That protectorate status compels the U.S. to utilize the
    laws of the Hawaiian Kingdom and it should’ve also compelled the U.S. to
    have dealt with the insurgents for high treason as enemies of the state.

    All reasons aside and for the sake of comparison:
    Currently, the U.S. desires Assad to step down from the Syrian government
    and have chosen to back Syrian rebels with military supplies. To me the
    rebels like the Provisional Government are neither de facto nor de jure and
    in a state of revolt and in commission of treason. If this is correct, why
    would the U.S. align itself with the rebels? We did it, you can do it too kind of
    attitude? Different from Crimea back in March of 2014, the lawful government
    was in place, yet the U.S. does not recognize the transition. Go figure?

    It is definitely clear that the continuity of the Hawaiian Kingdom was never
    extinguished, the protectorate status no longer necessary as the U.S. is
    now more of danger to Hawaii and its people.

    JMM anyway. Mahalo kakou for the kukakuka!

    Mahalo for this blog entry and taking the time to respond, it is much appreciated!

      • Concerning Hawaii’s neutrality:

        From the above link:
        In a secret session of the U.S. Senate on May 31, 1898, Senator William Chandler warned of the consequences Alabama claims arbitration in Geneva, whereby Great Britain was found guilty of violating its neutrality during the American Civil War and compensated the United States with 15.5 million dollars in gold. Chandler cautioned, p. 278 of the secret session transcripts, “What I said was that if we destroyed the neutrality of Hawai‘i Spain would have a claim against Hawai‘i which she could enforce according to the principles of the Geneva Award and make Hawai‘i, if she were able to do it, pay for every dollar’s worth of damage done to the ships of property of Spain by the fleet that may go out of Hawai‘i.”

        Also from the above link:
        The Allies considered Germany’s actions to be acts of aggression. According to James Wilford Garner’s International Law and the World War, vol. II, p. 251, the “immunity of a neutral State from occupation by a belligerent is not dependent upon special treaties, but is guaranteed by the Hague convention as well as the customary law of nations.”

        • Aloha Win808, I believe the HK’s liability is a non- issue due to the U.S. belligerent occupation. If Spain was to bring a complaint against the HK I’m confident the HK would prevail and also enjoin the U.S. to the action through a cross complaint since they caused the injuries and are liable for the damages. IMHO

          • Aloha Kekoa,

            Yes, I believe that is what Garner was saying.
            Immunity for the Hawaiian Kingdom from its
            neutrality violations are guaranteed under
            the Hague convention as well as the
            customary law of nations while under U.S.
            occupation. Yes indeed, this leaves the U.S.

            When Pope Francis spoke to the U.S. congress
            there was a moment while he was speaking that
            made me reflect to what the Queen had pleaded
            to the honest American people concerning the
            wrath against Ahab and that God shall not be
            mocked! The Pope’s visit to America was breath
            of fresh air and a re-boot for them. Or, could it
            be the introduction of what the prophets had
            warned of things to come? The Pope flew out of
            Philadelphia on the night of the blood moon, not
            visible in Hawaii. Was that a coincidence or a
            a sign?

            Awkward how Vladimir Putin has to constantly
            remind the U.S. not to violate international
            laws concerning the sovereignty of states.
            The U.S. actions against Assad and his regime
            in Syria today is reminiscent of what happened
            to the Queen of Hawaii 122 years ago, without
            regard to the respective reasons.

            China toggled their financial switch again today
            causing the U.S. stock market to drop, flexing
            its financial strength.

            it will be interesting to see what takes place

            A hui hou

          • Aloha Win808, I agree the U.S. govt’s hypocrisy on violations of states rights and international law can no longer be tolerated by the international community because more states are becoming victims. Here’s todays headline that shows the continued U.S. violation of the HK neutrality, states rights and International law…China’s assertive posture in the South China Sea has prompted the United States Marine Corps to deploy as many as 30,000 marines to Hawaii and beyond, reports Want China Times. The U.S. Marine Corps specializes in expeditionary warfare. Defense experts said the move is aimed at dramatically reducing America’s response time in the Asia Pacific. Now the U.S. makes the HK a bigger and brighter target for China or on the other hand China could possibly use the HK’s illegal occupation to neutralize the situation in the Pacific. You never know.

  3. Under international law, the Provisional Government would be classified as an American “militia” illegally established on Hawaiian territory by the United States.

    Although U.S. troops departed Hawaiian territory on April 1, 1893, the American militia maintained itself through the hiring of mercenaries from the United States.

    On July 4, 1894, the American militia changed its name to the Republic of Hawai‘i and continued to have government officers and employees sign oaths of allegiance under threat of American mercenaries who continued to be employed by the insurgency.

    Are you kidding me a 13 man militia and mercenaries is now your current answer to this point. Talk about castles in the sky….

    • I think you need to research your facts in order to get a better understanding and appreciation for what the Royalist were up against. Guns were not available to the public like today and were almost impossible to get without a good connection to have them smuggled in. At this point the insurgents were in control of the police and the armory. They also employed armed mercenaries to protect them until President Mckinnely replaced Cleveland. The insurgents and mercenaries were able to defeat Wilcox’s counter revolution so don’t down play their power and insult the Royalist attempts to protect their kingdom. I can guarantee that if you were there and facing the same odds you wouldn’t be stepping up to battle these guys.

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