{"id":3253,"date":"2015-07-10T02:04:36","date_gmt":"2015-07-10T02:04:36","guid":{"rendered":"http:\/\/hawaiiankingdom.org\/blog\/?p=3253"},"modified":"2015-07-10T02:11:27","modified_gmt":"2015-07-10T02:11:27","slug":"limits-of-u-s-congressional-legislation","status":"publish","type":"post","link":"https:\/\/hawaiiankingdom.org\/blog\/limits-of-u-s-congressional-legislation\/","title":{"rendered":"Hawai\u2018i Never Annexed – Limits of U.S. Congressional Legislation"},"content":{"rendered":"

Sources of international law are, in rank of precedence: international conventions, international custom, general principles of law recognized by civilized nations, and judicial decisions and the teachings of the most highly qualified publicists of the various nations (Statute of the International Court of Justice<\/a>, Article 38). The legislation of every state, to include the United States of America and its Congress, is not a source of international law, but rather a source of municipal law of the state whose legislature enacted it. In The Lotus,<\/em> the International Court stated, \u201cNow the first and foremost restriction imposed by international law upon a State is that\u2014failing the existence of a permissive rule to the contrary\u2014it may not exercise its power in any form in the territory of another State (Lotus<\/em>, PCIJ, ser. A no. 10, 18 (1927).\u201d According to Crawford, derogation of this principle will not be presumed, which he refers to as the Lotus<\/em> presumption (James Crawford, The Creation of States in International Law<\/em> 34 (2d ed. 2006).<\/p>\n

Since Congressional legislation, whether by a statute or a joint resolution, has no extraterritorial effect, it is not a source of international law, which \u201cgoverns relations between independent States (Lotus<\/em>, at 18).\u201d The U.S. Supreme Court has always adhered to this principle. The U.S. Supreme Court stated,<\/p>\n

\u201cNeither 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 (United States v. Curtiss Wright Export Corp.<\/em>, 299 U.S. 304, 318 (1936).\u201d<\/p>\n

\"1936<\/a><\/p>\n

The Supreme Court also concluded, \u201cThe laws of no nation\u00a0can justly extend beyond its own territories except so far as regards its own citizens. They can have no force to control the sovereignty or rights of any other nation within its own jurisdiction (The Apollon, 22 U.S. 362, 370 (1824).\u201d Adhering to this principle, the U.S. Attorney General\u2019s\u00a0Office of \"Douglas_Kmiec\"Legal Counsel\u00a0was befuddled by Congress\u2019s annexation of the Hawaiian Islands by a joint resolution. In a 1988 legal opinion, the Office of Legal Counsel addressed the annexation of the Hawaiian Islands by joint resolution<\/a>.\u00a0Douglas Kmiec, Acting Assistant Attorney General, authored the memorandum for Abraham D. Sofaer, legal advisor to the U.S. State Department. After covering the limitation of Congressional authority and the objections made by members of the Congress, Kmiec concluded,<\/p>\n

\u201cNotwithstanding these constitutional objections, Congress approved the joint resolution and President McKinley signed the measure in 1898. Nevertheless, whether this action demonstrates the constitutional power of Congress to acquire territory is certainly questionable. \u2026 It is therefore unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution. Accordingly, it is doubtful that the acquisition of Hawaii can serve as an appropriate precedent for a congressional assertion of sovereignty over an extended territorial sea (Douglas W. Kmiec, Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea<\/a><\/em>, 12 Opinions of the Office of Legal Counsel 238, 252 (1988).\u201d<\/p>\n

This 1988 opinion clearly undermines the claim of sovereignty over the Hawaiian Islands by the United States. If the Attorney General\u2019s Office of Legal Counsel is \u201cunclear\u201d as to the authority of Congress to annex the Hawaiian Islands, it surely cannot be considered as a\u00a0valid demonstration of legal title\u00a0by the United States as the successor to the Hawaiian Kingdom under international law.\u00a0If the United States is not the successor, then the presumption of the Hawaiian Kingdom\u2019s existence as an independent state is maintained.<\/p>\n","protected":false},"excerpt":{"rendered":"

Sources of international law are, in rank of precedence: international conventions, international custom, general principles of law recognized by civilized nations, and judicial decisions and the teachings of the most highly qualified publicists of the various nations (Statute of the … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,5],"tags":[],"class_list":["post-3253","post","type-post","status-publish","format-standard","hentry","category-international-law","category-national"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p31YBQ-Qt","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/3253","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/comments?post=3253"}],"version-history":[{"count":6,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/3253\/revisions"}],"predecessor-version":[{"id":3260,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/3253\/revisions\/3260"}],"wp:attachment":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/media?parent=3253"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/categories?post=3253"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/tags?post=3253"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}