Occupation does not legally change the national character of the occupied territory. As such, the laws of the Hawaiian Kingdom, as they existed previous to the failed revolution of 1893, continue to remain the Law of the Land, and Chapter II, section 6 of the Hawaiian Civil Code, provides: "The laws are obligatory upon all persons, whether subjects of this kingdom, or citizens or subjects of any foreign State, while within the limits of this kingdom, except so far as exception is made by the laws of nations in respect to Ambassadors or others. The property of all such persons, while such property is within the territorial jurisdiction of this kingdom, is also subject to the laws."
The Establishment of the First Co-partnership Firm under Kingdom Law since 1893.
On December 10, 1995, a Hawaiian general partnership was formed in compliance with an Act to Provide for the Registration of Co-partnership Firms, 1880. The partnership was named the Perfect Title Company and was a land title abstracting company. Since the enactment of the 1880 Co-partnership Act, members of co-partnership firms had filed their articles of agreements in the Bureau of Conveyances.
The Bureau of Conveyances is presently administered by the occupational force of the United States, through the State of Hawai`i, pursuant to United States municipal legislation. Such legislation required that all documents prior to filing with the Bureau be acknowledged by a United States/State of Hawai`i notary public. In order for the partners of the Perfect Title Company to get their articles of agreement filed in the Bureau of Conveyances, pursuant to the said 1880 Co-partnership Act, the following protest was incorporated and made a part of their articles of agreement, which provided: "Each partner also agrees that the business is to be operated in strict compliance to the business laws of the Hawaiian Kingdom as noted in the 'Compiled Laws of 1884' and the 'session laws of 1884 and 1886.' Both partners are native Hawaiian subjects by birth and therefore are bound and subject to the laws above mentioned. And it is further agreed by both partners that due to the filing requirements of the Bureau of Conveyances to go before a foreign notary public within the Hawaiian Kingdom, they do this involuntarily and against their will."
The Perfect Title Company was to have commenced on the 10th day of December, 1995, but there was no representation of the Hawaiian Government to ensure compliance with the co-partnership statute from that date. In accordance with the 1880 Co-partnership Act, a duty and an obligation was established between the Interior Department and co-partnership firms in the Kingdom. At one end of the statute, the registration of co-partnerships was a requirement, while at the other end of the statute, the Interior Department was to ensure that co-partnerships maintained their compliance with the statute. Thus, the partners of the Perfect Title Company had to abide by the duty and corresponding obligation in order to satisfy the statute under Kingdom law.
Section 7 of the Co-partnership Act of 1880 clearly outlines the duty of the Interior department and the corresponding obligation of the members of co-partnerships in the Kingdom, which states: "The members of every co-partnership who shall neglect or fail to comply with the provisions of this law, shall severally and individually be liable for all the debts and liabilities of such co-partnership and may be severally sued therefor, without the necessity of joining the other members of the co-partnership in any action or suit, and shall also be severally be liable upon conviction, to a penalty not exceeding five dollars for each and every day while such default shall continue; which penalties may be recovered in any Police or District Court."
Re-establishing the Hawaiian Kingdom Government, by and through the Hawaiian Co-partnership Statute.
The partners of Perfect Title Company desired to establish a legitimate co-partnership pursuant to Hawaiian Kingdom law. Such a co-partnership had not been created in the Hawaiian Kingdom for over one hundred years, because the Hawaiian Kingdom has experienced an illegal and prolonged occupation by the United States. As a result, the Hawaiian Kingdom Government has ceased to operate. In light of the above, the partners of the Perfect Title Company reasoned that the Hawaiian corporate body of government had to be re-established pursuant to Hawaiian Kingdom law, in order for the Perfect Title Company to exist as a legal co-partnership firm.
Therefore, in order for the Government of the Hawaiian Kingdom to be re-activated, an Acting Executive Head of State had to be established in conformity with the laws of the Hawaiian Kingdom. Black's Law Dictionary, 6th Ed., defines acting officer as: "...to designate, not an appointed incumbent, but merely a locum tenens, who is performing the duties of an office to which he himself does not claim title."
The last legitimate Hawaiian Legislative Assembly of 1886 was prevented from reconvening as a result of the extortion of the 1887 Constitution. The subsequent Legislative Assembly of 1887 was based on an illegal constitution which altered existing voting rights which led to the illegal election of the 1887 Legislature. As a result, there existed no legitimate Nobles in the Legislative Assembly when Her Majesty Queen Lili`uokalani ascended to the Office of Monarch in 1891, and therefore, the Queen was unable to obtain confirmation for her named successors from those Nobles as required by the 1864 Constitution. Her Majesty had first intended that Princess Ka`iulani be the named successor to the Office of Monarch, and subsequently considered Prince David Kawananakoa and Prince Jonah Kuhio Kalaniana`ole as her successors. Tragically, when Her Majesty died on November 11, 1917, there were no legitimate Noblemen of the Legislative Assembly to confirm her above nominations. Article 22 of the 1864 Constitution eloquently illustrates the requirements, and states, in part: "...the successor shall be the person whom the Sovereign shall appoint with the consent of the Nobles, and publicly proclaim as such during the King's life."
In the absence of a confirmed successor to the Throne by the Nobles of the Legislative Assembly, Article 33 of the Constitution of 1864 provides that: "...should a Sovereign decease, leaving a Minor Heir, and having made no last Will and Testament, the Cabinet Council at the time of such decease shall be a Council of Regency, until the Legislative Assembly, which shall be called immediately, may be assembled, and the Legislative Assembly immediately that it is assembled shall proceed to choose by ballot, a Regent or Council of Regency, who shall administer the Government in the name of the King, and exercise all the Powers which are Constitutionally vested in the King..."
The law did not assume that the whole of the Hawaiian Kingdom Government would be made vacant. Consequently, the law did not not formalize provisions that described every step of the reactivation of the Government. Thus, the following course of action was taken to re-activate the Hawaiian Kingdom Government by and through its Executive branch.
Properly interpreted, Article 33 of the 1864 Constitution, provides that the Cabinet Council shall be a "temporary" Council of Regency until a proper Legislative Assembly can be convened to choose, by ballot, some native Ali'i (Chief) to be Monarch, as provided in Article 22 of the Hawaiian Constitution. Article 33 further states that this Regent or Council of Regency shall administer the Government in the name of the Monarch, and exercise all the Powers which are constitutionally vested in the Monarch.
Article 42 of the 1864 Constitution, provides that the Cabinet Council consists of the Minister of Foreign Affairs, the Minister of Interior, the Minister of Finance and the Attorney General of the Kingdom. Proper interpretation of this law allows the Minister of Interior to assume the powers vested in the Cabinet Council in absentia of the Minister of Foreign Affairs, the Minister of Finance and the Attorney General, and consequently serve as the Council of Regency.
Chapter XXVI, section 1249 of the Hawaiian Civil Code, provides that a bureau is established in the department of the Interior called the Bureau of Conveyances and that a Registrar shall superintend said bureau. Proper interpretation of this Law allows the Registrar of Conveyances to assume the powers vested in the Minister of Interior in absentia of the same; then assume the powers vested in the Cabinet Council in absentia of the Minister of Foreign Affairs, the Minister of Finance and the Attorney General; and finally the Registrar has assumed the position of the Council of Regency.
The 1880 Co-partnership Act requires members of co-partnerships to register their articles of agreement in the Bureau of Conveyances, being within the Department of the Interior. This statute places an obligation on members of co-partnerships to register, and at the same time, this statute places a corresponding duty on the Department of the Minister of Interior to assure compliance with the statute. Logic and necessity dictated that in the absence of an executor of this department that a registered co-partnership could assume the department's duty. In order to accomplish this, it was logical that this registered co-partnership could assume the powers vested in the Registrar of the Bureau of Conveyances in absentia of the same; then assume the powers vested in the Minister of Interior in absentia of the same; then assume the powers vested in the Cabinet Council in absentia of the Minister of Foreign Affairs, the Minister of Finance and the Attorney General; and, finally assume the power of the Council of Regency.
This abovementioned process of ascension can be analogized to a Private in an Army that rises up the ranks during battle, in the absence of all ranking soldiers above him. In this type of extraordinary scenario, a Private could ultimately assume the rank of General of the Army in an "acting" role, until relieved by a properly commissioned General. The critical point to be made about this process in relation to the Hawaiian Kingdom's corporate body, is that each position assumed by a registered co-partnership under the 1880 Co-partnership Act is an "acting" position until relieved by a "permanent" Regent or Council of Regency elected by a legally constituted Legislative Assembly.
The Hawaiian Kingdom Trust Company, a general partnership, established to Assume Role of Absentee Government.
On December 15, 1995, the partners of Perfect Title Company formed a second partnership called the Hawaiian Kingdom Trust Company. The partners intended that this registered partnership would exist as a company acting for and on behalf of the Hawaiian Kingdom "absentee" Government. As of December 15, 1995, there were no other co-partnerships registered in accordance with the said 1880 Co-partnership Act, except for the Perfect Title Company. Therefore, and in light of the ascension process explained in the previous paragraphs, the Hawaiian Kingdom Trust Company could then "act" as the Registrar of the Bureau of Conveyances, the Minister of Interior, the Cabinet Council, and ultimately as the Council of Regency.
Article 1 of the Hawaiian Kingdom Trust Company's deed of general partnership provided, in part, that: "...the company will serve in the capacity of acting for and on behalf of the Hawaiian Kingdom government. The company has adopted the Hawaiian Constitution of 1864 and the laws lawfully established in the administration of the same. The company is to commence on the 15th day of December, A.D. 1995, and shall remain in existence until the absentee government is re-established and fully operational, upon which all records and monies of the same will be transferred and conveyed over to the office of the Minister of Interior, to have and to hold under the authority and jurisdiction of the Hawaiian Kingdom."
Deeds of Trusts authorizing the Hawaiian Kingdom Trust Company to serve as a company acting for and on behalf of the Hawaiian Government further outlined the role of the trust company and the fiduciary duty between the trustees and the beneficiaries. The Deeds of Trust provided, in part, that: "...the grantors, in consideration aforesaid and in order to more effectually carry out the intention of this deed doth hereby grant unto the said trustee, its successors and assigns full power to serve in the place of the absentee government, for the benefit of the same; and in the name of the trust to institute and prosecute to final judgment and execution all suits and actions at law, in equity and in admiralty for any breach or violation of Hawaiian law, at the expense of the grantors; and the same to defend if brought against the said grantors by any pretended proprietor or foreign government; and to refer any matter in dispute to arbitration and the same to settle and compromise; and to do all acts in the management of the affairs of said parties as if it were the absentee government in the capacity aforementioned."
Grantors of the Deeds of Trust to the Hawaiian Kingdom Trust Company, a general partnership, also paid the trust back taxes, which are explained as follows: "And the grantors, to show their good faith as native Hawaiian subjects, agree to pay into the trust the sum of one-hundred and three dollars ($103.00), which shall serve as payment of all back taxes owed to the Hawaiian Kingdom government, to be computed at a rate of a dollar and love for each and every year the grantors and their families have been absent from the kingdom since the year of 1893; and the same agrees to adhere to all of the internal tax laws of the kingdom, which include an assessment of taxes to be determined on the 1st day of July of each and every year and the collection of the same on the 15th day of December, in accordance to the Act of 1882 relating to internal taxes, Compiled Laws of the Hawaiian Kingdom, p. 117, to be paid into the trust account."
The Trustees of the Hawaiian Kingdom Trust Company were not only competent to serve as the Acting Cabinet Council, but also possessed a fiduciary duty toward its beneficiaries to serve in the capacity of the Hawaiian Kingdom Government, until the Government is re-established in accordance with the terms of the 1864 Constitution. The Deeds of Trust also provided the following proviso: "It is also agreed that as soon as the absentee government is lawfully re-established and is fully operational, the company will transfer by deed all rights, titles, interests and appurtenances hereinbefore conveyed by the grantors, over to the office of the Minister of Interior, to have and to hold under the authority and jurisdiction of the Hawaiian Kingdom, and that upon this conveyance the trust shall then be terminated."
Trustees of the Hawaiian Kingdom Trust Company, a general partnership, Appoint Acting Regent.
In order to avoid the appearance of impropriety and/or conflict of interest under the 1880 Co-partnership Act, the partners of the Perfect Title Company, reasoned that an Acting Regent, having no interests in either company, must be appointed to serve as representative of the Hawaiian Kingdom Government. This appointment would have to be made by the Trustees of the Hawaiian Kingdom Trust Company since it represented the interests of the Kingdom Government. Therefore, the Trust Company looked to Article XXXI, Chapter XI, Title 3 of the Hawaiian Civil Code, whereby the Acting Regency would be constitutionally authorized to direct the Executive Branch of the Kingdom Government in the formation and execution of the election of the House of Representatives. Subsequently, a "permanent" Regent or Council of Regency could be elected by the Legislative Assembly in accordance with Article 33 of the 1864 Constitution.
In light of the above, the Trustees of the Hawaiian Kingdom Trust Company decided to appoint Mr. David Keanu Sai as Acting Regent to represent the Hawaiian Government in place of the Trust Company, because of his expertise in Hawaiian Kingdom law. It was also agreed upon by the Trustees that Ms. Nai`a-Ulumaimalu will replace Mr. Sai as Trustee of the Trust Company and partner of the Perfect Title Company. Since Mr. Sai was also a Trustee and partner of the two companies, it was decided that Mr. Sai would relinquish his entire interest in both companies to the other Trustee and partner before accepting the Regency appointment. After the other Trustee and partner of the two companies had acquired a complete interest, a redistribution of interest would be conveyed to Ms. Nai`a-Ulumaimalu. Both deeds transferring interests will be signed one day before the date of the actual redistribution, and be duly registered in the Bureau of Conveyances in conformity with section 3 of the 1880 Co-partnership Act. This simultaneous transaction was agreed to in order to maintain the standing of the two partnerships and not have them lapse into sole-proprietorships.
On February 27, 1996, Mr. Sai conveyed by deed all of his one-half (1/2) undivided interest in both companies to Mr. Donald A. Lewis, the other sole partner of the Perfect Title Company and the other sole Trustee of the Hawaiian Kingdom Trust Company, but the deed of transfer was not to take effect until February 28, 1996.
Concurrent and in a simultaneous transaction, on February 27, 1996, Mr. Donald A. Lewis conveyed by deed a one percent (1%) undivided interest in the Hawaiian Kingdom Trust Company and the Perfect Title Company to Ms. Nai`a-Ulumaimalu, but the transfer would not take effect until February 28, 1996. Ms. Nai`a-Ulumaimalu, in effect, became a one percent (1%) Trustee of the Hawaiian Kingdom Trust Company and a one percent (1%) partner of the Perfect Title Company with Mr. Lewis, who retained a ninety-nine percent (99%) interest in both companies.
On March 1, 1996, the Trustees of the Hawaiian Kingdom Trust Company appointed Mr. David Keanu Sai to the Office of Regent, and filed a notice of this appointment with the Bureau of Conveyances. Thereafter, the Hawaiian Kingdom Trust Company resumed its role as a general partnership within the meaning of the 1880 Co-partnership Act, and no longer served as a company acting for and on behalf of the Hawaiian Government.
On May 15, 1996, the Trustees of the Hawaiian Kingdom Trust Company conveyed by deed all of its right, title and interest acquired by thirty-eight (38) Deeds of Trust to the Acting Regent, and stipulated that the Trust Company would be dissolved in accordance with the provisions of its deed of general partnership on June 30, 1996. The transfer and subsequent dissolution, was made in accordance with section 3 of the 1880 Co-partnership Act.
On February 28, 1997, a Proclamation of the Acting Regent of the Hawaiian Kingdom was printed in the March 9, 1997 issue of the Honolulu Sunday Advertiser, which stated, in part, that the: "...Hawaiian Monarchical system of Government is hereby re-established," and the "...Civil Code of the Hawaiian Islands as noted in the Compiled Laws of 1884, together with the session laws of 1884 and 1886 and the Hawaiian Penal Code are in full force. All Hawaiian Laws and Constitutional principles not consistent herewith are void and without effect."
In September of 1999 the Acting Regent had commissioned, according to statute, Peter Umialiloa Sai as Acting Minister of Foreign Affairs, Kau'i P. Goodhue as Acting Minister of Finance, and Gary V. Dubin, Esquire, as Acting Attorney General. On September 10, 1999, it was determined by resolution of the Privy Council: "...that the office of the Minister of Interior shall be resumed by David Keanu Sai, thereby absolving the office of the Regent, pro tempore, and the same to be replaced by the Cabinet Council as a Council of Regency, pro tempore, within the meaning of Article 33 of the Constitution of the Country." After Gary V. Dubin's resignation on July 21, 2013 was accepted by the Council, Dexter Ke'eaumoku Ka'iama, Esquire, was commissioned as Acting Attorney General on August 11, 2013.
Legal Opinion on the Authority of the Council of Regency by Professor Federico Lenzerini
At the request of the Chairman of the Council of Regency, by letter dated May 11, 2020, while serving as the Head of the Royal Commission of Inquiry, Professor Federico Lenzerini from the University of Siena, Italy, was asked to provide a legal opinion on the following:
First, does the Regency have the authority to represent the Hawaiian Kingdom as a State that has been under a belligerent occupation by the United States of America since 17 January 1893?
Second, assuming the Regency does have the authority, what effect would its proclamations have on the civilian population of the Hawaiian Islands under international humanitarian law, to include its proclamation recognizing the State of Hawai'i and its Counties as the administration of the occuping State on 3 June 2019?
Third, can you provide comment on the working relationship between the Regency and the administration of the occupying State under international humanitarian law?
On May 24, 2020, Professor Lenzerini completed his legal opinion. His opinion begins by stating: "In order to ascertain whether the Regency has the authority to represent the Hawaiian Kingdom as a State, it is preliminarily necessary to ascertain whether the Hawaiian Kingdom can actually be considered a State under international law. To this purpose, two issues need to be investigated, i.e.: a) whether the Hawaiian Kingdom was a State at the time when it was militarily occupied by the United States of America, on 17 January 1893; b) in the event that the solution to the first issue would be positive, whether the continuous occupation of Hawai'i by the United States, from 1893 to present times, has led the Hawaiian Kingdom to be extinguished as an independent State and, consequently, as a subject of international law."
After addressing the historical record and citing the Permanent Court of Arbitration, he concluded, "[i]t is therefore unquestionable that in the 1890s the Hawaiian Kingdom was an independent State and, consequently, a subject of international law. This presupposed that its territorial sovereignty and internal affairs could not be legitimately violated by other States."
After concluding the Hawaiian Kingdom did exist as a subject of international law, Professor Lenzerini stated, "it is now necessary to determine whether the continuous occupation of Hawai'i by the United States from 1893 to present times has led the Hawaiian Kingdom to be extinguished as an independent State, and, consequently, as a subject of international law." He addressed this issue "by means of careful assessment carried out through 'having regard inter alia to the lapse of time since the annexation [by the United States], subsequent political, constitutional and international developments, and relevant changes in international law since the 1890s.'"
Aside from all speculative arguments, Professor Lenzerini concludes, "the argument which appears to overcome all the others is that a long-lasting and well established rule of international law exists establishing that military occupation, irrespective of the length of its duration, cannot produce the effect of extinguishing the sovereignty and statehood of the occupied State." On this subject, he provides an English translation of a statement made by the Swiss arbitrator Eugene Borel in the 1925 Ottoman Public Debt case: "Whatever are the effects of the occupation of a territory by the enemy before the re-establishment of peace, it is certain that such an occupation alone cannot legally determine the transfer of sovereignty [...] The occupation, by one of the belligerents, of [...] the territory of the other belligerent is nothing but a pure fact. It is a state of things essentially provisional, which does not legally substitute the authority of the invading belligerent to that of the invaded belligerent."
Professor Lenzerini also cites renowned jurist Oppenheim who stated that "the only form in which a cession [of sovereignty] can be effected is an agreement embodied in a treaty between the ceding and the acquiring State. Such treaty may be the outcome of peaceable negotiations or of war." Without a treaty with the Hawaiian Kingdom ceding its territory to the United States, he concludes that, "according to a plain and correct interpretation of the relevant legal rules, the Hawaiian Kingdom cannot be considered, by virtue of the prolonged US occupation, as extinguished as an independent State and a subject of international law, despite the long and effective exercise of the attributes of government by the United States over Hawaiian territory." Therefore, the Hawaiian Kingdom "has been under uninterrupted belligerent occupation by the United States of America, from 17 January 1893 up to the moment of this writing."
After confirming the continuity of the Hawaiian Kingdom, Professor Lenzerini reviewed the process by which the Council of Regency was formed, he further concludes "on the basis of the doctrine of necessity, the Council of Regency possesses the constitutional authority to temporarily exercise the Royal powers of the Hawaiian Kingdom." He further concludes "that the Regency actually has the authority to represent the Hawaiian Kingdom as a State, which has been under a belligerent occupation by the United States of America since 17 January 1893, both at the domestic and international level." In international proceedings at the Permanent Court of Arbitration from 1999-2001, the Council of Regency did represent the Hawaiian Kingdom in Larsen v. Hawaiian Kingdom. The Chairman served as Agent, and the other members of the Council of Regency served as Deputy Agents.
In its capacity as representing the Hawaiian Kingdom, Professor Lenzerini concludes that "[t]he Council of Regency is exactly in the same position of a government of a State under military occupation, and is vested with the rights and powers recognized to governments of occupied States pursuant to international humanitarian law." Therefore, "the ousted government being the entity which represents the 'legitimate government' of the occupied territory may 'attempt to influence life in the occupied area out of concern for its nationals, to undermine the occupant's authority, or both. One way to accomplish such goals is to legislate for the occupied population.'"
Regarding legislation by governments of occupied States, Professor Lenzerini cites the Swiss Federal Tribunal which held that "[e]nactments by the [exiled government] are constitutionally laws of the [country] and applied [from the beginning] to the territory occupied [...] even though they could not be effectively implemented until the liberation." He explains that "[a]though this position was taken with specific regard to exiled governments, and the Council of Regency was not established in exile but in situ, the conclusion, to the extent that it is considered valid, would not substantially change as regards the Council of Regency itself." Hence, "under international humanitarian law, the proclamations of the Council of Regency are not divested of effects as regards the civilian population of the Hawaiian Islands. In fact, considering these proclamations as included in the concept of 'legislation' [...] they might even, if the concrete circumstances of the case so allow, apply retroactively at the end of the occupation, on the condition that the legislative acts in point do not 'disregard the rights and expectations of the occupied population.' It is therefore necessary that the occupied government refrains 'from using the national law as a vehicle to undermine public order and civil life in the occupied area.'"
When the legislative function is exercised by the Council of Regency, through its proclamations, it "is subjected to the condition of not undermining the rights and interests of the civilian population," and therefore "may be considered applicable to local people, unless such applicability is explicitly refuted by the occupying authority." "In this regard," states Professor Lenzerini, "it is reasonable to assume that the occupying power should not deny the applicability of the…proclamations when they do not undermine, or significantly interfere with the exercise of, its authority."
Addressing the June 3, 2019 proclamation of the Council of Regency recognizing the State of Hawai'i and the Counties as the administration of the Occupying State, Professor Lenzerini states, "this Proclamation pursues the clear purpose of ensuring the protection of the Hawaiian territory and the people residing therein against the prejudicial effects which may arise from the occupation." He explains that "it represents a legislative act aimed at furthering the interests of the civilian population through ensuring the correct administration of their rights and of the land. As a consequence, it has the nature of an act that is equivalent, in its rationale and purpose (although not in its precise subject), to a piece of legislation concerning matters of personal status of the local population, requiring the occupant to give effect to it." He, therefore, concludes that "the proclamations of the Council of Regency-including the Proclamation recognizing the State of Hawai'i and its Counties as the administration of the occupying State on 3 June 2019-have on the civilian population the effect of acts of domestic legislation aimed at protecting their rights and prerogatives, which should be, to the extent possible, respected and implemented by the occupying power."
In his commentary on the working relationship between the Regency and the administration of the occupying State, Professor Lenzerini establishes that the law of occupation "allows for authority to be shared by the Occupying Power and the occupied government, provided the former continues to bear the ultimate and overall responsibility for the occupied territory." By implementing the legislation of the Council of Regency, "the occupying power would better comply with its obligation, existing under international humanitarian law and human rights law, to guarantee and protect the human rights of the local population. It follows that the occupying power has a duty-if not a proper legal obligation-to cooperate with the [Council of Regency] to better realize the rights and interest of the civilian population, and, more in general, to guarantee the correct administration of the occupied territory."
Professor Lenzerini concludes, "[T]he working relationship between the Regency and the administration of the occupying State should have the form of a cooperative relationship aimed at guaranteeing the realization of the rights and interests of the civilian population and the correct administration of the occupied territory, provided that there are no objective obstacles for the occupying power to cooperate and that, in any event, the 'supreme' decision-making power belongs to the occupying power itself. This conclusion is consistent with the position of the latter as 'administrator' of the Hawaiian territory, as stated in the Council of Regency's Proclamation recognizing the State of Hawai'i and its Counties as the administration of the occupying State of June 3, 2019 and presupposed by the pertinent rules of international humanitarian law."
This cooperative relationship, however, is "premised on both the Council of Regency and the State of Hawai'i and its Counties [to] ensure [their] compliance with international humanitarian law." Compliance with the law of occupation requires the State of Hawai'i to transform itself into a government recognized under international humanitarian law. United States practice during occupations requires the establishment of a Military government, which "is the form of administration by which an occupying power exercises governmental authority over occupied territory. The necessity for such government arises from the failure or inability of the legitimate government to exercise its functions on account of the military occupation (U.S. Army Field Manual 27-10, para. 362)." The establishment of Military government is not limited to the United States military, but also applies to a proxy of the occupying power that is in effective control of Hawaiian territory such as the State of Hawai'i and its Counties. United States practice recognizes that an occupying power "has the duty of establishing [a Military government] when the government of such territory is absent or unable to function properly (U.S. Army and Navy Manual of Civil Affairs Military Government, Field Manual 27-5, p. 4)."
Furthermore, "[i]t is immaterial whether the government over an [occupied State's] territory consists in a military or civil or mixed administration. Its character is the same and the source of its authority is the same. It is a government imposed by force, and the legality of its acts is determined by the law of war (FM 27-10, para. 368)." And "restrictions placed upon the authority of a belligerent government cannot be avoided by a system of using a puppet government, central or local, to carry out acts which would be unlawful if performed by the occupant. Acts induced or compelled by the occupant are nonetheless its acts (FM 27-10, para. 366)."
According to the applicable rules of international law, as provided in the legal opinion of Professor Lenzerini, the Council of Regency, first, does have the lawful authority to represent the Hawaiian Kingdom as a State that has been under a belligerent occupation by the United States since January 17, 1893; second, its proclamations do have legal effects on the civilian population of the Hawaiian Islands, to include its proclamation recognizing the State of Hawai'i and its Counties as the administration of the occupying State on June 3, 2019; and, third, international humanitarian law does provide for a cooperative relationship between the Regency and the administration of the occupying State-the State of Hawai'i and its Counties. Furthermore, the mandate of the Royal Commission, which was established by "legislation" of the Council of Regency, is also confirmed by the legal opinion and the applicable rules of international law.
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