{"id":6769,"date":"2023-12-30T13:51:01","date_gmt":"2023-12-30T23:51:01","guid":{"rendered":"https:\/\/hawaiiankingdom.org\/blog\/?p=6769"},"modified":"2023-12-30T13:51:02","modified_gmt":"2023-12-30T23:51:02","slug":"under-international-law-all-members-of-the-united-nations-recognize-the-continuity-of-the-hawaiian-kingdoms-existence-as-a-independent-state-and-the-council-of-regency-as-its-government","status":"publish","type":"post","link":"https:\/\/hawaiiankingdom.org\/blog\/under-international-law-all-members-of-the-united-nations-recognize-the-continuity-of-the-hawaiian-kingdoms-existence-as-a-independent-state-and-the-council-of-regency-as-its-government\/","title":{"rendered":"Under International Law, all Members of the United Nations recognize the Continuity of the Hawaiian Kingdom’s existence as a Independent State and the Council of Regency as its Government"},"content":{"rendered":"\n

The Royal Commission of Inquiry<\/a><\/strong> has just published its latest memorandum<\/a><\/strong> on why all 193 Member States of the United Nations recognizes the continuity of the Hawaiian Kingdom and the Council of Regency as its government.<\/p>\n\n\n\n

It has been 24 years since the arbitral proceedings at the Permanent Court of Arbitration<\/a><\/strong> (\u201cPCA\u201d) were initiated on 8 November 1999 in Larsen v. Hawaiian Kingdom<\/a><\/strong><\/em>. Before the arbitral tribunal was established on 9 June 2000, the PCA Secretary General recognized the continued existence of the Hawaiian Kingdom as a non-Contracting State to the 1907 Hague Convention, I, for the Pacific Settlement of International Disputes (\u201cPCA Convention\u201d). The PCA Secretary General also recognized the Council of Regency as its government. The Council of Regency was not claiming to be a new State but rather it claimed the legal personality of the continued existence of the Hawaiian Kingdom since the nineteenth century.<\/p>\n\n\n\n

One of the four sources of international law is customary international law, which is a general practice by an international actor and accompanied by opinio juris<\/em>. Opinio juris<\/em> takes place when acts or omissions by States occur following a belief that these States are obligated as a matter of law to take action or refrain from acting in a particular way. According to the International Court of Justice, for a rule of customary international law to exist, there needs to be \u201ctwo conditions [that] must be fulfilled\u201d where there is a \u201c\u2018settled practice\u2019 together with opinio juris<\/em>,\u201d where the practice is accepted as law by States. This acceptance can be achieved by the silence or omission of the concerned States regarding the practice. In the Nicaragua<\/em> case, the International Court of Justice explained:<\/p>\n\n\n\n

\n

[F]or a new customary rule to be formed, not only must the acts concerned \u201camount to a settled practice,\u201d but they must be accompanied by opinio juris sive neccessitatis<\/em>. Either the States taking such action or other States in a position to react to it, must behave so that their conduct is evidence of a belief that the practice is rendered obligatory by the existence of a rule of law requiring it. The need for such belief [\u2026] the subjective element, is implicit in the very notion of opinio juris sive neccessitatis<\/em>.<\/p>\n<\/blockquote>\n\n\n\n

The relevant rule of customary international law, which is applicable to the Hawaiian Kingdom, is the presumption of continuity of the State despite the military overthrow of its government. Because international law provides for the presumption of the continuity of the State despite the overthrow of its government by another State, the burden of proof shifts as to what must be proven. According to Judge Crawford, there \u201cis a presumption that the State continues to exist, with its rights and obligations [\u2026] despite a period in which there is no, or no effective, government,\u201d and belligerent occupation \u201cdoes not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.\u201d Addressing the presumption of the German State\u2019s continued existence despite the military overthrow of the Nazi government during the Second World War, Professor Brownlie explains:<\/p>\n\n\n\n

\n

Thus, after the defeat of Nazi Germany in the Second World War the four major Allied powers assumed supreme power in Germany. The legal competence of the German state [its independence and sovereignty] did not, however, disappear. What occurred is akin to legal representation or agency of necessity. The German state continued to exist, and, indeed, the legal basis of the occupation depended on its continued existence.<\/p>\n<\/blockquote>\n\n\n\n

Therefore, \u201c[i]f one were to speak about a presumption of continuity,\u201d explains Professor Craven, \u201cone would suppose that an obligation would lie upon the party opposing that continuity to establish the facts substantiating its rebuttal. The continuity of the Hawaiian Kingdom, in other words, may be refuted only by reference to a valid demonstration of legal title, or sovereignty, on the part of the United States, absent of which the presumption remains.\u201d Evidence of \u201ca valid demonstration of legal title, or sovereignty, on the part of the United States\u201d would be an international treaty, particularly a peace treaty, whereby the Hawaiian Kingdom would have ceded its territory and sovereignty to the United States. Examples of foreign States ceding sovereign territory to the United States by a peace treaty include the 1848 Treaty of Peace, Friendship, Limits, and Settlement with the Republic of Mexico<\/em> and the 1898 Treaty of Peace between the United States of America and the Kingdom of Spain<\/em>. There is no treaty of peace where the Hawaiian Kingdom ceded its sovereignty and territory to the United States.<\/p>\n\n\n\n

This practice or action taken by the PCA Secretary General was uncontested by all 122 Contracting States to the PCA Convention. This serves as evidence of their acceptance of the continuity of Hawaiian Statehood. The acceptance by the 122 States of the PCA\u2019s recognition of continuity, as opposed to discontinuity of the Hawaiian State, established a normative character of opinio juris<\/em> supporting the existence of the rule of customary international law sanctioning the presumption of continuity of a State, despite the military overthrow of its government. As the International Court of Justice explains, the behavior of these States is such \u201cthat their conduct is evidence of a belief that the practice is rendered obligatory by the existence of a rule of law requiring it,\u201d as regards the international legal rule of the presumption of State continuity despite the persistence of a status of military occupation. The significance of the Larsen<\/em> case under international law cannot be underestimated. <\/p>\n\n\n\n

Since the Larsen<\/em> case, the Hawaiian Kingdom\u2019s Council of Regency took deliberate and incremental steps, under international law, to assure that all Member States of the United Nations would recognize the Hawaiian Kingdom\u2019s continued existence as an independent State despite the prolonged occupation by the United States. This memorandum looks at those steps that eventually got all 193 Members States of the United Nations to acknowledge, under international law, the continuity of the Hawaiian Kingdom as an independent State since the nineteenth century, and the Council of Regency as its government, being the successor to Queen Lili\u2018uokalani’s administration. <\/p>\n","protected":false},"excerpt":{"rendered":"

The Royal Commission of Inquiry has just published its latest memorandum on why all 193 Member States of the United Nations recognizes the continuity of the Hawaiian Kingdom and the Council of Regency as its government. It has been 24 … 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":[7,8],"tags":[],"class_list":["post-6769","post","type-post","status-publish","format-standard","hentry","category-education","category-international-law"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p31YBQ-1Lb","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/6769","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=6769"}],"version-history":[{"count":6,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/6769\/revisions"}],"predecessor-version":[{"id":6775,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/posts\/6769\/revisions\/6775"}],"wp:attachment":[{"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/media?parent=6769"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/categories?post=6769"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hawaiiankingdom.org\/blog\/wp-json\/wp\/v2\/tags?post=6769"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}