FACTS NECESSARY TO UNDERSTAND THE HAWAIIAN SITUATION

David Keanu Sai, Ph.D.

June 11, 2019

Fundamental to deciphering the Hawaiian situation is to discern between a state of peace and a
state of war. This bifurcation provides the proper context by which certain rules of international
law would or would not apply. The laws of war—jus in bello, otherwise known today as
international humanitarian law, are not applicable in a state of peace. Inherent in the rules of jus in
bello is the co-existence of two legal orders, being that of the occupying State and that of the
occupied State. As an occupied State, the continuity of the Hawaiian Kingdom has been
maintained for the past 126 years by the positive rules of international law, notwithstanding the
absence of effectiveness, which is required during a state of peace.1

The failure of the United States to comply with international humanitarian law, for over a century,
has created a humanitarian crisis of unimaginable proportions where war crimes have since risen
to a level of jus cogens. At the same time, the obligations have erga omnes characteristics—
flowing to all States. The international community’s failure to intercede, as a matter of obligatio
erga omnes, is explained by the United States deceptive portrayal of Hawai‘i as an incorporated
territory. As an international wrongful act, States have an obligation to not “recognize as lawful a
situation created by a serious breach … nor render aid or assistance in maintaining that situation,”2
and States “shall cooperate to bring to an end through lawful means any serious breach [by a State
of an obligation arising under a peremptory norm of general international law].”3

The gravity of the Hawaiian situation has been heightened by North Korea’s announcement that
“all of its strategic rocket and long range artillery units ‘are assigned to strike bases of the U.S.
imperialist aggressor troops in the U.S. mainland and on Hawaii,” which is an existential threat.4
The United States crime of aggression since 1893 is in fact a priori, and underscores Judge
Greenwood’s statement, “[c]ountries were either in a state of peace or a state of war; there was no

1
James Crawford, The Creation of States in International Law 34 (2nd ed., 2007); Krystyna Marek, Identity and
Continuity of States in Public International Law 102 (2nd ed., 1968).
2
Articles of Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law
Commission, 2001, vol. II, Article 41(2) (Part Two). Text reproduced as it appears in the annex to General Assembly
resolution 56/83 of 12 December 2001, and corrected by document A/56/49(Vol. I)/Corr.4.
3
Id., Article 41(1).
4
Choe Sang-Hun, North Korea Calls Hawaii and U.S. Mainland Targets, New York Times (26 March 2013)
(online at http://www.nytimes.com/2013/03/27/world/asia/north-korea-calls-hawaii-and-us-mainland-targets.html).
Legally speaking, the armistice agreement of 27 July 1953 did not bring the state of war to an end between North
Korea and South Korea because a peace treaty is still pending. The significance of North Korea’s declaration of war
of March 30, 2013, however, has specifically drawn the Hawaiian Islands into the region of war because it has been
targeted as a result of the United States prolonged occupation.

1
intermediate state.”5 The Hawaiian Kingdom, a neutral and independent State, has been subject to
an illegal war with the United States for the past 126 years without a peace treaty, and thus, the
United States must begin to comply with the rules of jus in bello.

The first allegations of war crimes, committed in Hawai‘i, being unfair trial, unlawful confinement
and pillaging,6 were made the subject of an arbitral dispute in Lance Larsen vs. Hawaiian Kingdom
at the Permanent Court of Arbitration (“PCA”).7 Oral hearings were held at the PCA on December
7, 8 and 11, 2000. As an intergovernmental organization, the PCA must possess institutional
jurisdiction, before it can form ad hoc tribunals, in order to ensure that the dispute is international.
The jurisdiction of the PCA is distinguished from the subject-matter jurisdiction of the ad hoc
tribunal presiding over the dispute between the parties.

International disputes, capable of being accepted under the PCA’s institutional jurisdiction, include
disputes between: any two or more States; a State and an international organization (i.e. an
intergovernmental organization); two or more international organizations; a State and a private
party; and an international organization and a private entity.8 The PCA accepted the case as a
dispute between a State and a private party, and acknowledged the Hawaiian Kingdom to be a non-
Contracting Power under Article 47 of the HC I.9 As stated on the PCA’s website:

Lance Paul Larsen, a resident of Hawaii, brought a claim against the Hawaiian Kingdom
by its Council of Regency (“Hawaiian Kingdom”) on the grounds that the Government of
the Hawaiian Kingdom is in continual violation of: (a) its 1849 Treaty of Friendship,

5
Christopher Greenwood, “Scope of Application of Humanitarian Law,” in Dieter Fleck (ed.), The Handbook of the
International Law of Military Operations 45 (2nd ed., 2008).
6
Memorial of Lance Paul Larsen (May 22, 2000), Larsen v. Hawaiian Kingdom, Permanent Court of Arbitration, at
para. 62-64, “Despite Mr. Larsen’s efforts to assert his nationality and to protest the prolonged occupation of his
nation, [on] 4 October 1999, Mr. Larsen was illegally imprisoned for his refusal to abide by the laws of the State of
Hawaii by State of Hawaii. At this point, Mr. Larsen became a political prisoner, imprisoned for standing up for his
rights as a Hawaiian subject against the United States of America, the occupying power in the prolonged occupation
of the Hawaiian islands.… While in prison, Mr. Larsen did continue to assert his nationality as a Hawaiian subject,
and to protest the unlawful imposition of American laws over his person by filing a Writ of Habeus [sic] Corpus
with the Circuit Court of the Third Circuit, Hilo Division, State of Hawaii.… Upon release from incarceration, Mr.
Larsen was forced to pay additional fines to the State of Hawaii in order to avoid further imprisonment for asserting
his rights as a Hawaiian subject,” (online at http://www.alohaquest.com/arbitration/memorial_larsen.htm).
Article 33, 1949 Geneva Convention, IV, “Pillage is prohibited. Reprisals against protected persons and their
property are prohibited;” Article 147, 1949 Geneva Convention, IV, “Grave breaches […] shall be those involving
any of the following acts, if committed against persons or property protected by the present Convention: …unlawful
confinement of a protected person,… wilfully depriving a protected person of the rights of fair and regular trial
prescribed in the present Convention;” see also International Criminal Court, Elements of War Crimes (2011), at 16
(Article 8 (2) (a) (vi)—War crime of denying a fair trial), 17 (Article 8 (2) (a) (vii)-2—War Crime of unlawful
confinement), and 26 (Article 8 (2) (b) (xvi)—War Crime of pillaging).
7
Permanent Court of Arbitration Case Repository, Larsen v. Hawaiian Kingdom, PCA Case no. 1999-01 (online at
https://pca-cpa.org/en/cases/35/).
8
United Nations, United Nations Conference on Trade and Development: Dispute Settlement 15 (United Nations,
2003).
9
PCA Annual Report, Annex 2, 51, n. 2. (2011) (online at https://pca-cpa.org/wp-
content/uploads/sites/6/2015/12/PCA-annual-report-2011.pdf).

2
 Commerce and Navigation with the United States of America, as well as the principles of
international law laid down in the Vienna Convention on the Law of Treaties, 1969 and (b)
the principles of international comity, for allowing the unlawful imposition of American
municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian
Kingdom.10

From a State of Peace to a State of War

To quote the dictum of the Larsen v. Hawaiian Kingdom Tribunal, “in the nineteenth century the
Hawaiian Kingdom existed as an independent State recognized as such by the United States of
America, the United Kingdom and various other States, including by exchanges of diplomatic or
consular representatives and the conclusion of treaties.”11 As an independent State, the Hawaiian
Kingdom entered into extensive treaty relations with a variety of States establishing diplomatic
relations and trade agreements.12 According to Westlake, in 1894, the Family of Nations
comprised, “First, all European States.… Secondly, all American States.… Thirdly, a few
Christian States in other parts of the world, as the Hawaiian Islands, Liberia and the Orange Free
State.”13

To preserve its political independence, should war break out in the Pacific Ocean, the Hawaiian
Kingdom sought to ensure that its neutrality would be recognized beforehand. Hence, provisions
recognizing Hawaiian neutrality were incorporated in its treaties with Sweden-Norway (1852),14

10
Larsen v. Hawaiian Kingdom, Cases, Permanent Court of Arbitration (online at https://pca-cpa.org/en/cases/35/).
11
Larsen v. Hawaiian Kingdom, 119 Int’l L. Reports 566, 581 (2001) (hereafter “Larsen case”).
12
The Hawaiian Kingdom entered into treaties with Austria-Hungary (now separate States), June 18, 1875;
Belgium, October 4, 1862; Bremen (succeeded by Germany), March 27, 1854; Denmark, October 19, 1846; France,
September 8, 1858; French Tahiti, November 24, 1853; Germany, March 25, 1879; New South Wales (now
Australia), March 10, 1874; Hamburg (succeeded by Germany), January 8, 1848); Italy, July 22, 1863; Japan,
August 19, 1871, January 28, 1886; Netherlands & Luxembourg, October 16, 1862 (William III was also Grand
Duke of Luxembourg); Portugal, May 5, 1882; Russia, June 19, 1869; Samoa, March 20, 1887; Spain, October 9,
1863; Sweden-Norway (now separate States), April 5, 1855; and Switzerland, July 20, 1864; the United Kingdom of
Great Britain and Northern Ireland) March 26, 1846; and the United States of America, December 20, 1849, January
13, 1875, September 11, 1883, and December 6, 1884.
13
John Westlake, Chapters on the Principles of International Law, 81 (1894). In 1893, there were 44 other
independent and sovereign States in the Family of Nations: Argentina, Austria-Hungary, Belgium, Bolivia, Brazil,
Bulgaria, Chili, Colombia, Costa Rica, Denmark, Ecuador, France, Germany, Great Britain, Greece, Guatemala,
Hawaiian Kingdom, Haiti, Honduras, Italy, Liberia, Liechtenstein, Luxembourg, Netherlands, Mexico, Monaco,
Montenegro, Nicaragua, Orange Free State that was later annexed by Great Britain in 1900, Paraguay, Peru,
Portugal, Romania, Russia, San Domingo, San Salvador, Serbia, Spain, Sweden-Norway, Switzerland, Turkey,
United States of America, Uruguay, and Venezuela. In 1945, there were 46, and today there are 197.
14
Article XV states, “All vessels bearing the flag of Sweden and Norway in time of war shall receive every possible
protection, short of actual hostility, within the ports and waters of His Majesty the King of the Hawaiian Islands; and
His Majesty the King of Sweden and Norway engages to respect in time of war the neutral rights of the Hawaiian
Kingdom, and to use his good offices with all other powers, having treaties with His Majesty the King of the
Hawaiian Islands, to induce them to adopt the same policy towards the Hawaiian Kingdom.” (online at
http://hawaiiankingdom.org/pdf/Sweden_Norway_Treaty.pdf).

3
Spain (1863)15 and Germany (1879).16 “A nation that wishes to secure her own peace,” says Vattel,
“cannot more successfully attain that object than by concluding treaties [of] neutrality.”17

Under customary international law, in force in the nineteenth century, the territory of a neutral
State could not be violated. This principle was codified by Article 1 of the 1907 Hague Convention,
V (36 Stat. 2310), stating that the “territory of neutral Powers is inviolable.” According to Politis,
“[t]he law of neutrality, fashioned as it had been by custom and a closely woven network of
contractual agreements, was to a great extent codified by the beginning of the [20th] century.”18
As such, the Hawaiian Kingdom’s territory could not be trespassed or dishonored, and its neutrality
“constituted a guaranty of independence and peaceful existence.”19

“Traditional international law was based upon a rigid distinction between the state of peace and
the state of war,” says Judge Greenwood.20 “Countries were either in a state of peace or a state of
war; there was no intermediate state.”21 This distinction is also reflected by the renowned jurist of
international law, Lassa Oppenheim, who separated his treatise on International Law into two
volumes, Vol. I—Peace and Vol. II—War and Neutrality. In the nineteenth century, war was
recognized as lawful if justified under jus ad bellum. War could only be waged to redress a State’s
injury. As Vattel stated, “[w]hatever strikes at [a sovereign State’s] rights is an injury, and a just
cause of war.”22

The Hawaiian Kingdom enjoyed a state of peace with all States. This state of peace, however, was
violently interrupted January 16, 1893 when United States troops invaded the Hawaiian Kingdom.
This invasion transformed the state of peace into a state of war. The following day, Queen
Lili‘uokalani, as the executive monarch of a constitutional government, in response to military
action taken against the Hawaiian government, made the following protest and a conditional
surrender of her authority to the United States. The Queen’s protest stated:

I, Liliuokalani, by the grace of God and under the constitution of the Hawaiian Kingdom,
Queen, do hereby solemnly protest against any and all acts done against myself and the

15
Article XXVI states, “All vessels bearing the flag of Spain shall, in time of war, receive every possible protection,
short of active hostility, within the ports and waters of the Hawaiian Islands, and Her Majesty the Queen of Spain
engages to respect, in time of war the neutrality of the Hawaiian Islands, and to use her good offices with all the
other powers having treaties with the same, to induce them to adopt the same policy toward the said Islands.” (online
at http://hawaiiankingdom.org/pdf/Spanish_Treaty.pdf).
16
Article VIII states, “All vessels bearing the flag of Germany or Hawaii shall in times of war receive every possible
protection, short of actual hostility, within the ports and waters of the two countries, and each of the High
Contracting Parties engages to respect under all circumstances the neutral rights of the flag and the dominions of the
other.” (online at http://hawaiiankingdom.org/pdf/German_Treaty.pdf).
17
Emerich De Vattel, The Law of Nations 333 (6th ed., 1844).
18
Nicolas Politis, Neutrality and Peace 27 (1935).
19
Id., at 31.
20
Greenwood, at 45.
21
Id.
22
Vattel, at 301.

4
 constitutional Government of the Hawaiian Kingdom by certain persons claiming to have
established a provisional government of and for this Kingdom.

That I yield to the superior force of the United States of America, whose minister
plenipotentiary, His Excellency John L. Stevens, has caused United States troops to be
landed at Honolulu and declared that he would support the said provisional government.

Now, to avoid any collision of armed forces and perhaps the loss of life, I do, under this
protest, and impelled by said force, yield my authority until such time as the Government
of the United States shall, upon the facts being presented to it, undo the action of its
representatives and reinstate me in the authority which I claim as the constitutional
sovereign of the Hawaiian Islands.23

Under international law, the landing of United States troops, without the consent of the Hawaiian
government, was an act of war. For an act of war, not to transform the state of affairs to a state of
war, that act must be justified or lawful under international law, e.g. the necessity of landing troops
to secure the protection of the lives and property of United States citizens in the Hawaiian
Kingdom. According to Wright, “[a]n act of war is an invasion of territory…and so normally
illegal. Such an act if not followed by war gives grounds for a claim which can be legally avoided
only by proof of some special treaty or necessity justifying the act.”24 The quintessential question
then is whether or not the United States troops were landed to protect American lives or were they
landed to wage war against the Hawaiian Kingdom?

According to Brownlie, “[t]he right of war, as an aspect of sovereignty, which existed in the period
before 1914, subject to the doctrine that war was a means of last resort in the enforcement of legal
rights, was very rarely asserted either by statesmen or works of authority without some stereotyped
plea to a right of self-preservation, and of self-defense, or to necessity or protection of vital
interests, or merely alleged injury to rights or national honour and dignity.”25 The United States
had no dispute with the Hawaiian Kingdom, a neutral and independent State, that would have
warranted an invasion and overthrow of the Hawaiian government.

In 1993, the United States Congress enacted a joint resolution offering an apology for the
overthrow that occurred 100 years prior.26 Of significance in the resolution was a particular
preamble clause, which stated: “[w]hereas, in a message to Congress on December 18, 1893,
President Grover Cleveland reportedly fully and accurately on the illegal acts of the conspirators,
described such acts as an ‘act of war, committed with the participation of a diplomatic

23
United States House of Representatives, 53rd Congress, Executive Documents on Affairs in Hawai‘i: 1894-95, 586
(1895) (hereafter “Executive Documents”).
24
Quincy Wright, “Changes in the Concept of War,” 18 Am. J. Int’l. L. 755, 756 (1924).
25
Ian Brownlie, International Law and the Use of Force by States 41 (1963).
26
107 Stat. 1510 (1993).

5
representative of the United States and without authority of Congress,’ and acknowledged that by
such acts the government of a peaceful and friendly people was overthrown.”27

At first read of this preamble, it would appear that the “conspirators” were the subjects that
committed the “act of war,” but that is misleading because, first, under international law, only a
State can commit an “act of war,” whether through its military and/or its diplomat; and, second,
conspirators within a country can only commit the high crime of treason, not “acts of war.” These
two concepts are reflected in the terms coup de main and coup d’état. The former is a surprise
invasion by a foreign State’s military force, while the latter is a successful internal revolt, which
was also referred to in the nineteenth century as a revolution.

In a petition to President Cleveland from the Hawaiian Patriotic League dated December 27, 1893,
its leadership, comprised of Hawaiian statesmen and lawyers, clearly articulated the difference
between a “coup de main” and a “revolution.” The petition read:

Last January [1893], a political crime was committed, not only against the legitimate
Sovereign of the Hawaiian Kingdom, but also against the whole of the Hawaiian nation, a
nation who, for the past sixty years, had enjoyed free and happy constitutional self-
government. This was done by a coup de main of U.S. Minister Stevens, in collusion with
a cabal of conspirators, mainly faithless sons of missionaries and local politicians angered
by continuous political defeat, who, as revenge for being a hopeless minority in the country,
resolved to “rule or ruin” through foreign help. The facts of this “revolution,” as it is
improperly called, are now a matter of history.28

Whether by chance or design, the 1993 Congressional apology resolution did not accurately reflect
what President Cleveland stated in his message to the Congress in 1893. Cleveland stated to the
Congress:

And so it happened that on the 16th day of January, 1893, between four and five o’clock
in the afternoon, a detachment of marines from the United States steamer Boston, with two
pieces of artillery, landed at Honolulu. 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 (emphasis added).29

As part of this plan, the U.S. diplomat, John Stevens, would prematurely recognize the small group
of insurgents on January 17, 1893 as if the insurgents were successful revolutionaries thereby

27
Id., at 1511.
28
Executive Documents, at 1295. Petition of the Hawaiian Patriotic League (online at
http://hawaiiankingdom.org/pdf/HPL_Petition_12_27_1893.pdf).
29
Id., at 451. Cleveland’s Message (online at
http://hawaiiankingdom.org/pdf/Cleveland's_Message_(12.18.1893).pdf).

6
giving them a veil of de facto status. In a private note to Sanford Dole, head of the insurgency,
however, and written under the letterhead of the United States legation on January 17, 1893,
Stevens penned, “Judge Dole: I would advise not to make known of my recognition of the de facto
Provisional Government until said Government is in possession of the police station.”30 For the
insurgents not to be in “possession of the police station” admits they are not a government through
a successful revolution, but rather a puppet government of the U.S. diplomat. This is intervention,
which is prohibited under international law.

A government created through intervention is a puppet regime of the intervening State, and, as
such, has no lawful authority. “Puppet governments,” according to Marek, “are organs of the
occupant and, as such form part of his legal order. The agreements concluded by them with the
occupant are not genuine international agreements [because] such agreements are merely decrees
of the occupant disguised as agreements which the occupant in fact concludes with himself. Their
measures and laws are those of the occupant.”31

Customary international law recognizes a successful revolution when insurgents secure complete
control of all governmental machinery and have the acquiescence of the population. U.S. Secretary
of State Foster acknowledged this rule in a dispatch to Stevens on January 28, 1893: “Your course
in recognizing an unopposed de facto government appears to have been discreet and in accordance
with the facts. The rule of this government has uniformly been to recognize and enter into relation
with any actual government in full possession of effective power with the assent of the people.”32
The United States policy at the time was that recognition of successful revolutionaries must include
the assent of the people. According to President Cleveland:

While naturally sympathizing with every effort to establish a republican form of

government, it has been settled policy of the United States to concede to people of foreign
countries the same freedom and independence in the management of their domestic affairs
that we have always claimed for ourselves; and it has been our practice to recognize
revolutionary governments as soon as it became apparent that they were supported by the
people. For illustration of this rule I need only to refer to the revolution in 1889 when our
Minister was directed to recognize the new government “if it was accepted by the people”;
and to the revolution in Venezuela in 1892, when our recognition was accorded on
condition that the new government was “fully established, in possession of the power of
the nation, and accepted by the people.”33

30
Letter from United States Minister, John L. Stevens, to Sanford B. Dole, January 17, 1893, W. O. Smith
Collection, HEA Archives, HMCS, Honolulu, (online at http://hmha.missionhouses.org/items/show/889).
31
Marek, at 114.
32
Executive Documents, at 1179.
33
Id., at 455.

7
According to Lauterpacht, “[s]o long as the revolution has not been successful, and so long as the
lawful government … remains within national territory and asserts its authority, it is presumed to
represent the State as a whole.”34 With full knowledge of what constituted a successful revolution,
Cleveland provided a blistering indictment in his message to the Congress:

When our Minister recognized the provisional government the only basis upon which it
rested was the fact that the Committee of Safety … declared it to exist. It was neither a
government de facto nor de jure. 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.35

I believe that a candid and thorough examination of the facts will force the conviction that
the provisional government owes its existence to an armed invasion by the United States.
Fair-minded people with the evidence before them will hardly claim that the Hawaiian
Government was overthrown by the people of the islands or that the provisional
government had ever existed with their consent.36

“Premature recognition is a tortious act against the lawful government,” explains Lauterpacht,
which “is a breach of international law.”37 And according to Stowell, a “foreign state which
intervenes in support of [insurgents] commits an act of war against the state to which it belongs,
and steps outside the law of nations in time of peace.”38 Furthermore, Stapleton concludes, “[o]f
all the principles in the code of international law, the most important—the one which the
independent existence of all weaker States must depend—is this: no State has a right FORCIBLY
to interfere in the internal concerns of another State.”39

Cleveland then explained to the Congress the egregious effects of war that led to the Queen’s
conditional surrender to the United States:

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

34
E. Lauterpacht, Recognition in International Law 93 (1947).
35
Executive Documents, at 453.
36
Id., at 454.
37
E. Lauterpacht, at 95.
38
Ellery C. Stowell, Intervention in International Law 349, n. 75 (1921).
39
Augustus Granville Stapleton, Intervention and Non-Intervention 6 (1866). It appears that Stapleton uses all
capitals in his use of the word ‘forcibly’ to draw attention to the reader.

8
 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.… 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. She knew that she could not withstand the power of
the United States, but she believed that she might safely trust to its justice.40

The President’s finding that the United States embarked upon a war with the Hawaiian Kingdom,
in violation of international law, unequivocally acknowledged that a state of war in fact exists
since January 16, 1893. According to Lauterpact, an illegal war is “a war of aggression undertaken
by one belligerent side in violation of a basic international obligation prohibiting recourse to war
as an instrument of national policy.”41 However, despite the President’s admittance that the acts of
war were not in compliance with jus ad bellum—justifying war—the United States was still
obligated to comply with jus in bello—the rules of war—when it occupied Hawaiian territory.

In the Hostages Trial (the case of Wilhelm List and Others), the Tribunal rejected the prosecutor’s
view that, since the German occupation arose out of an unlawful use of force, Germany could not
invoke the rules of belligerent occupation. The Tribunal explained:

The Prosecution advances the contention that since Germany’s war against Yugoslavia and
Greece were aggressive wars, the German occupant troops were there unlawfully and
gained no rights whatever as an occupant.… [W]e accept the statement as true that the wars
against Yugoslavia and Greece were in direct violation of the Kellogg-Briand Pact and
were therefore criminal in character. But it does not follow that every act by the German
occupation forces against person or property is a crime.… At the outset, we desire to point
out that international law makes no distinction between a lawful and unlawful occupant in
dealing with the respective duties of occupant and population in the occupied territory.42

As such, the United States remained obligated to comply with the laws of occupation despite it
being an illegal war. As the Tribunal further stated, “whatever may be the cause of a war that has
broken out, and whether or not the cause be a so-called just cause, the same rules of international
law are valid as to what must not be done, [and what] may be done.”43 According to Wright, “[w]ar
begins when any state of the world manifests its intention to make war by some overt act, which
may take the form of an act of war.”44 In his review of customary international law in the nineteenth
century, Brownlie found “that in so far a ‘state of war’ had any generally accepted meaning it was

40
Executive Documents, at 453.
41
H. Lauterpacht, “The Limits of the Operation of the Law of War,” 30 Brit. Y.B. Int’l L. 206 (1953).
42
USA v. William List et al. (Case No. 7), Trials of War Criminals before the Nuremburg Military Tribunals
(hereafter “Hostages Trial”), Vol. XI, p. 1247 (1950).
43
Id.
44
Wright, at 758.

9
a situation regarded by one or both parties to a conflict as constituting a ‘state of war.’”45 Thus,
Cleveland’s determination that by an “act of war, committed with the participation of a diplomatic
representative of the United States and without authority of Congress, the Government of a feeble
but friendly and confiding people has been overthrown,” 46 means the action was not justified, but
a state of war nevertheless ensued.

What is significant is that Cleveland referred to the Hawaiian people as “friendly and confiding,”
not “hostile.” This is a clear case of where the United States President admits to an illegal war.
According to United States constitutional law, the President is the sole representative of the United
States in foreign relations—not the Congress or the courts. In the words of U.S. Justice Marshall,
“[t]he President is the sole organ of the nation in its external relations, and its sole representative
with foreign nations.”47 Therefore, the President’s political determination, that by an act of war the
government of a friendly and confiding people was unlawfully overthrown, would not have only
produced resonance with the members of the Congress, but to the international community as well,
and thus the duty of third States to invoke neutrality.

Furthermore, in a state of war, the principle of effectiveness, that you would otherwise have during
a state of peace, is reversed because of the existence of two legal orders in one and the same
territory. Marek explains, “[i]n the first place: of these two legal orders, that of the occupied State
is regular and ‘normal,’ while that of the occupying power is exceptional and limited. At the same
time, the legal order of the occupant is, as has been strictly subject to the principle of effectiveness,
while the legal order of the occupied State continues to exist notwithstanding the absence of
effectiveness.”48 Therefore, “[b]elligerent occupation is thus the classical case in which the
requirement of effectiveness as a condition of validity of a legal order is abandoned.”49

Cleveland told the Congress that he initiated negotiations with the Queen “to aid in the restoration
of the status existing before the lawless landing of the United States forces at Honolulu on the 16th
of January last, if such restoration could be effected upon terms providing for clemency as well as
justice to all parties concerned.”50 What Cleveland did not know at the time of his message to the
Congress was that the Queen, on the very same day in Honolulu, had accepted the conditions for
settlement in order to return the state of affairs to a state of peace. The executive mediation began
on November 13, 1893 between the Queen and U.S. diplomat Albert Willis and an agreement was
reached on December 18, 1893.51 The President was not aware of this agreement until after he

45
Brownlie, at 38.
46
Executive Documents, at 456.
47
10 Annals of Cong. 613 (1800).
48
Marek, at 102.
49
Id.
50
Executive Documents, at 458.
51
David Keanu Sai, “A Slippery Path Towards Hawaiian Indigeneity: An Analysis and Comparison between
Hawaiian State Sovereignty and Hawaiian Indigeneity and Its Use and Practice Today,” 10 J. L. & Soc. Challenges
(2008) 68, at 119-127.

10
delivered his message.52 Despite being unaware, President Cleveland’s political determination in
his message to the Congress was nonetheless conclusive that the United States was in a state of
war with the Hawaiian Kingdom and was directly responsible for the unlawful overthrow of the
Hawaiian government.

Once a state of war ensued between the Hawaiian Kingdom and the United States, “the law of
peace ceased to apply between them and their relations with one another became subject to the
laws of war, while their relations with other states not party to the conflict became governed by
the law of neutrality.”53 This outbreak of a state of war between the Hawaiian Kingdom and the
United States would “lead to many rules of the ordinary law of peace being superseded…by rules
of humanitarian law.”54 A state of war “automatically brings about the full operation of all the rules
of war and neutrality.”55 And, according to Venturini, “[i]f an armed conflict occurs, the law of
armed conflict must be applied from the beginning until the end, when the law of peace resumes
in full effect.”56 “For the laws of war,” according to Koman, “continue to apply in the occupied
territory even after the achievement of military victory, until either the occupant withdraws or a
treaty of peace is concluded which transfers sovereignty to the occupant.”57

In the Tadić case, the International Criminal Tribunal for the former Yugoslavia indicated that the
laws of war—international humanitarian law—applies from “the initiation of … armed conflicts
and extends beyond the cessation of hostilities until a general conclusion of peace is reached.”58
Only by an agreement between the Hawaiian Kingdom and the United States could a state of
peace be restored, without which a state of war ensues.59 An attempt to transform the state of war
to a state of peace was made by executive agreement on December 18, 1893. President Cleveland,
however, was unable to carry out his duties and obligations under this agreement to restore the

52
Executive Documents, at 1283. In this dispatch to U.S. Diplomat Albert Willis from Secretary of State Gresham
on January 12, 1894, he stated, “Your reports show that on further reflection the Queen gave her unqualified assent
in writing to the conditions suggested, but that the Provisional Government refuses to acquiesce in the President’s
decision. The matter now being in the hands of the Congress the President will keep that body fully advised of the
situation, and will lay before it from time to time the reports received from you.” The state of war ensued.
53
Greenwood, at 45.
54
Id., at 46.
55
Myers S. McDougal and Florentino P. Feliciano, “The Initiation of Coercion: A Multi-temporal Analysis,”
52 Am. J. Int’l. L. 241, 247 (1958).
56
Gabriella Venturini, “The Temporal Scope of Application of the Conventions,” in Andrew Clapham, Paola Gaeta,
and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary 52 (2015).
57
Sharon Koman, The Right of Conquest: The Acquisition of Territory by Force in International Law and Practice
224 (1996).
58
ICTY, Prosecutor v. Tadić, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction (Appeals
Chamber), § 70 (2 October 1995).
59
Under United States municipal laws, there are two procedures by which an international agreement can bind the
United States. The first is by a treaty whose entry into force can only take place after two-thirds of the United States
Senate has given its advice and consent under Article II, section 2, Clause 2 of the U.S. Constitution. The second is
by way of an executive agreement entered into by the President that does not require ratification by the Senate. See
United States v. Belmont, 301 U.S. 324, 326 (1937); United States v. Pink, 315 U.S. 203, 223 (1942); American
Insurance Association v. Garamendi, 539 U.S. 396, 415 (2003).

11
situation, that existed before the unlawful landing of American troops, due to political wrangling
in the Congress.60 Hence, the state of war continued.

International law distinguishes between a “declaration of war” and a “state of war.” According to
McNair and Watts, “the absence of a declaration … will not of itself render the ensuing conflict
any less a war.”61 In other words, since a state of war is based upon concrete facts of military
action, there is no requirement for a formal declaration of war to be made other than providing
formal notice of a state’s “intention either in relation to existing hostilities or as a warning of
imminent hostilities.”62 In 1946, a United States Court had to determine whether a naval captain’s
life insurance policy, which excluded coverage if death came about as a result of war, covered his
demise during the Japanese attack of Pearl Harbor on December 7, 1941. It was argued that the
United States was not at war at the time of his death because the Congress did not formally declare
war against Japan until the following day.

The Court denied this argument and explained that “the formal declaration by the Congress on
December 8th was not an essential prerequisite to a political determination of the existence of a
state of war commencing with the attack on Pearl Harbor.”63 Therefore, the conclusion reached by
President Cleveland that by “an act of war, committed with the participation of a diplomatic
representative of the United States and without authority of Congress, the Government of a feeble
but friendly and confiding people has been overthrown,”64 was a “political determination of the
existence of a state of war,” and that a formal declaration of war by the Congress was not essential.
The “political determination” by President Cleveland, regarding the actions taken by the military
forces of the United States since January 16, 1893, was the same as the “political determination”
by President Roosevelt regarding actions taken by the military forces of Japan on December 7,
1941. Both political determinations of acts of war by these Presidents created a state of war for the
United States under international law.

Foremost, the overthrow of the Hawaiian government did not affect, in the least, the continuity of
the Hawaiian State, being the subject of international law. Wright asserts that “international law
distinguishes between a government and the state it governs.”65 Cohen also posits that “[t]he state
must be distinguished from the government. The state, not the government, is the major player,
the legal person, in international law.”66 As Judge Crawford explains, “[t]here is a presumption
that the State continues to exist, with its rights and obligations … despite a period in which there

60
Sai, A Slippery Path, at 125-127.
61
Lord McNair and A.D. Watts, The Legal Effects of War 7 (1966).
62
Brownlie, at 40.
63
New York Life Ins. Co. v. Bennion, 158 F.2d 260 (C.C.A. 10th, 1946), 41(3) Am. J. Int’l L. 680, 682 (1947).
64
Executive Documents, at 456.
65
Quincy Wright, “The Status of Germany and the Peace Proclamation,” 46(2) Am. J. Int’l L. 299, 307 (Apr. 1952).
66
Sheldon M. Cohen, Arms and Judgment: Law, Morality, and the Conduct of War in the Twentieth Century 17
(1989).

12
is … no effective, government.”67 Crawford further concludes that “[b]elligerent occupation does
not affect the continuity of the State, even where there exists no government claiming to represent
the occupied State.”68

The Duty of Neutrality by Third States

When the state of peace was transformed to a state of war, all other States were under a duty of
neutrality. “Since neutrality is an attitude of impartiality, it excludes such assistance and succour
to one of the belligerents as is detrimental to the other, and, further such injuries to the one as
benefit the other.”69 The duty of a neutral State, not a party to the conflict, “obliges him, in the first
instance, to prevent with the means at his disposal the belligerent concerned from committing such
a violation,” e.g. to deny recognition of a puppet regime unlawfully created by an act of war.70

Twenty States violated their obligation of neutrality by recognizing the so-called Republic of
Hawai‘i and consequently became parties to the war on the side of the United States.71 These States
include: Austria-Hungary (January 1 1895);72 Belgium (October 17 1894);73 Brazil (September
29, 1894);74 Chile (September 26, 1894);75 China (October 22, 1894);76 France (August
31,1894);77 Germany (October 4, 1894);78 Guatemala (September 30, 1894);79 Italy (September

67
Crawford, at 34. If one were to speak about a presumption of continuity, one 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.
68
Id. Crawford also stated, the “occupation of Iraq in 2003 illustrated the difference between ‘government’ and
‘State’; when Members of the Security Council, after adopting SC res 1511, 16 October 2003, called for the rapid
‘restoration of Iraq’s sovereignty’, they did not imply that Iraq had ceased to exist as a State but that normal
governmental arrangements should be restore.” Id, n. 157.
69
L. Oppenheim, International Law, vol. II—War and Neutrality 401 (3rd ed., 1921).
70
Id., at 496.
71
Greenwood, at 45.
72
Austria-Hungary’s recognition of the Republic of Hawai‘i (online at
https://historymystery.kenconklin.org/2008/04/05/recognition-of-the-republic-of-hawaii-austro-hungary/).
73
Belgium’s recognition of the Republic of Hawai‘i (online at
https://historymystery.kenconklin.org/2008/04/05/recognition-of-the-republic-of-hawaii-belgium/).
74
Brazil’s recognition of the Republic of Hawai‘i (online at
https://historymystery.kenconklin.org/2008/04/05/recognition-of-the-republic-of-hawaii-brazil/).
75
Chile’s recognition of the Republic of Hawai‘i (online at:
https://historymystery.kenconklin.org/2008/04/05/recognition-of-the-republic-of-hawaii-chile/).
76
China’s recognition of the Republic of Hawai‘i (online at
https://historymystery.kenconklin.org/2008/04/05/recognition-of-the-republic-of-hawaii-china/).
77
France’s recognition of the Republic of Hawai‘i (online at
https://historymystery.kenconklin.org/2008/04/05/recognition-of-the-republic-of-hawaii-france/).
78
Germany’s recognition of the Republic of Hawai‘i (online at
https://historymystery.kenconklin.org/2008/04/05/recognition-of-the-republic-of-hawaii-germanyprussia/ ).
79
Guatemala’s recognition of the Republic of Hawai‘i (online at
https://historymystery.kenconklin.org/2008/04/05/recognition-of-the-republic-of-hawaii-guatemala/).

13
23, 1894);80 Japan (April 6, 1897);81 Mexico (August 8, 1894);82 Netherlands (November 2,
1894);83 Norway-Sweden (December 17, 1894);84 Peru (September 10, 1894);85
Portugal (December 17, 1894);86 Russia (August 26, 1894);87 Spain (November 26, 1894);88
Switzerland (September 18, 1894);89 and the United Kingdom (September 19, 1894).90

“If a neutral [State] neglects this obligation,” states Oppenheim, “he himself thereby commits a
violation of neutrality, for which he may be made responsible by a belligerent who has suffered
through the violation of neutrality committed by the other belligerent and acquiesced in by him.”91
The recognition of the so-called Republic of Hawai‘i did not create any legality or lawfulness of
the puppet regime, but rather serves as the indisputable evidence that these States violated their
obligation to be neutral during a state of war. Diplomatic recognition of governments occurs during
a state of peace and not during a state of war, unless for providing recognition of belligerent status.
These recognitions were not recognizing the Republic as a belligerent in a civil war with the
Hawaiian Kingdom, but rather under the false pretense that the republic succeeded in a so-called
revolution and therefore was the new government of Hawai‘i during a state of peace.

Obligation of the United States to Administer Hawaiian Kingdom laws

In the absence of an agreement that would have transformed the state of affairs back to a state of
peace, the state of war prevails over what jus in bello calls belligerent occupation. Article 41 of
the 1880 Institute of International Law’s Manual on the Laws of War on Land declared that a
“territory is regarded as occupied when, as the consequence of invasion by hostile forces, the State
to which it belongs has ceased, in fact, to exercise its ordinary authority therein, and the invading

80
Italy’s recognition of the Republic of Hawai‘i (online at
https://historymystery.kenconklin.org/2008/04/06/recognition-of-the-republic-of-hawaii-italy/).
81
Japan’s recognition of the Republic of Hawai‘i (online at
https://historymystery.kenconklin.org/2008/05/27/recognition-of-the-republic-of-hawaii-japan/).
82
Mexico’s recognition of the Republic of Hawai‘i (online at
https://historymystery.kenconklin.org/2008/04/06/recognition-of-the-republic-of-hawaii-mexico/).
83
The Netherlands’ recognition of the Republic of Hawai‘i (online at
https://historymystery.kenconklin.org/2008/04/06/recognition-of-the-republic-of-hawaii-netherlands/).
84
Norway-Sweden’s recognition of the Republic of Hawai‘i (online at
https://historymystery.kenconklin.org/2008/04/06/recognition-of-the-republic-of-hawaii-swedennorway/).
85
Peru’s recognition of the Republic of Hawai‘i (online at
https://historymystery.kenconklin.org/2008/04/06/recognition-of-the-republic-of-hawaii-peru/).
86
Portugal’s recognition of the Republic of Hawai‘i (online at
https://historymystery.kenconklin.org/2008/04/06/recognition-of-the-republic-of-hawaii-portugal/).
87
Russia’s recognition of the Republic of Hawai‘i (online at
https://historymystery.kenconklin.org/2008/04/06/recognition-of-the-republic-of-hawaii-russia/).
88
Spain’s recognition of the Republic of Hawai‘i (online at
https://historymystery.kenconklin.org/2008/04/06/recognition-of-the-republic-of-hawaii-spain/).
89
Switzerland’s recognition of the Republic of Hawai‘i (online at
https://historymystery.kenconklin.org/2008/04/06/recognition-of-the-republic-of-hawaii-switzerland/).
90
The United Kingdom’s recognition of the Republic of Hawai‘i (online at
https://historymystery.kenconklin.org/2008/04/05/recognition-of-the-republic-of-hawaii-britain/).
91
Oppenheim, at 497.

14
State is alone in a position to maintain order there.” This definition was later codified under Article
42 of the 1899 Hague Convention, II, and then superseded by Article 42 of the HC IV, which
provides that “[t]erritory is considered occupied when it is actually placed under the authority of
the hostile army. The occupation extends only to the territory where such authority has been
established and can be exercised.” Thus, effectiveness is at the core of belligerent occupation.

Article 43 of the 1907 HC IV provides that “[t]he authority of the legitimate power having in fact
passed into the hands of the occupant, the latter shall take all the measures in his power to restore,
and ensure, as far as possible, public order and safety, while respecting, unless absolutely
prevented, the laws in force in the country.” The “text of Article 43,” according to Benvenisti,
“was accepted by scholars as mere reiteration of the older law, and subsequently the article was
generally recognized as expressing customary international law.”92 Graber also states, that
“nothing distinguishes the writing of the period following the 1899 Hague code from the writing
prior to that code.”93 The United States government also recognizes that this principle is customary
international law that predates the Hague Conventions.

The Hague Convention clearly enunciated the principle that the laws applicable in an
occupied territory remain in effect during the occupation, subject to change by the military
authorities within the limits of the Convention. Article 43: … This declaration of the Hague
Convention amounts only to a reaffirmation of the recognized international law prior to
that time.94

The administration of occupied territory is set forth in the Hague Regulations, being Section III of
the HC IV. According to Schwarzenberger, “Section III of the Hague Regulations … was
declaratory of international customary law.”95 Also, consistent with what was generally considered
the international law of occupation, in force at the time of the Spanish-American War, the “military
governments established in the territories occupied by the armies of the United States were
instructed to apply, as far as possible, the local laws and to utilize, as far as seemed wise, the
services of the local Spanish officials.”96 Many other authorities also viewed the Hague
Regulations (HC IV) as mere codification of customary international law, which was applicable at
the time of the overthrow of the Hawaiian government and subsequent occupation.97 Commenting
on the occupation of the Hawaiian Kingdom, Dumberry states,

92
Eyal Benvenisti, The International Law of Occupation 8 (1993).
93
Doris Graber, The Development of the Law of Belligerent Occupation: 1863-1914 143 (1949).
94
Opinion on the Legality of the Issuance of AMG (Allied Military Government) Currency in Sicily, Sept. 23, 1943,
reprinted in Occupation Currency Transactions: Hearings Before the Committees on Appropriations Armed Services
and Banking and Currency, U.S. Senate, 80th Congress, First Session, 73, 75 (Jun. 17-18, 1947).
95
Georg Schwarzenberger, “The Law of Belligerent Occupation: Basic Issues,” 30 Nordisk Tidsskrift Int’l Ret 11
(1960).
96
Munroe Smith, “Record of Political Events,” 13(4) Pol. Sci. Q. 745, 748 (1898).
97
Gerhard von Glahn, The Occupation of Enemy Territory: A Commentary on the Law and Practice of Belligerent
Occupation 95 (1957); David Kretzmer, The Occupation of Justice: The Supreme Court of Israel and the Occupied
Territories 57 (2002); Ludwig von Kohler, The Administration of the Occupied Territories, vol. I, 2 (1942); United

15
 [T]he 1907 Hague Convention protects the international personality of the occupied
[s]tate, even in the absence of effectiveness. Furthermore, the legal order of the occupied
[s]tate remains intact, although its effectiveness is greatly diminished by the fact of
occupation. As such, Article 43 of the 1907 Hague Convention IV provides for the co-
existence of two distinct legal orders, that of the occupier and the occupied.98

The hostile army, in this case, included not only United States armed forces, but also its puppet
regime that was disguising itself as a “provisional government.” As an entity created through
intervention, this puppet regime existed as an armed militia that worked in tandem with the United
States armed forces under the direction of the U.S. diplomat John Stevens. Furthermore, under the
rules of jus in bello, the occupant does not possess the sovereignty of the occupied State and
therefore cannot compel allegiance.99 To do so would imply that the occupied State, as the subject
of international law and whom allegiance is owed, was cancelled and its territory unilaterally
annexed into the territory of the occupying State. International law would allow this under the
doctrine of debellatio.

Debellatio does not apply to the Hawaiian situation because President Cleveland determined that
the overthrow of the Hawaiian government was unlawful and, therefore, this determination does
not meet the test of jus ad bellum. As an illegal war, the doctrine of debellatio was precluded from
arising. That is to say, debellatio is conditioned on a legal war. According to Schwarzenberger,
“[i]f, as a result of legal, as distinct from illegal, war, the international personality of one of the
belligerents is totally destroyed, victorious Powers may … annex the territory of the defeated State
or hand over portions of it to other States.”100 Furthermore, as Craven states:

It should be pointed out, however, that even if annexation/ conquest was generally regarded
as a mode of acquiring territory, US policy during this period was far more sceptical of
such practice. As early as 1823 the US had explicitly opposed, in the form of the Monroe
Doctrine, the practice of European colonization 56 and in the First Pan-American
Conference of 1889 and 1890 it had proposed a resolution to the effect that ‘the principle
of conquest shall not… be recognised as admissible under American public law’. It had,

States Judge Advocate General's School Tex No. 11, Law of Belligerent Occupation 2 (1944), (stating that “Section
III of the Hague Regulations is in substance a codification of customary law and its principles are binding
signatories and non-signatories alike”).
98
Dumberry, at 682.
99
Article 45, 1899 Hague Convention, II, “Any pressure on the population of occupied territory to take the oath to
the hostile Power is prohibited;” see also Article 45, 1907 Hague Convention, IV, “It is forbidden to compel the
inhabitants of occupied territory to swear allegiance to the hostile Power.” On January 24, 1895, the puppet regime
calling itself the Republic of Hawai‘i coerced Queen Lili‘uokalani to abdicate the throne and to sign her allegiance
to the regime in order to “save many Royalists from being shot” (William Adam Russ, Jr., The Hawaiian Republic
(1894-98) And Its Struggle to Win Annexation 71 (1992)). As the rule of jus in bello prohibits inhabitants of
occupied territory to swear allegiance to the hostile Power, the Queen’s oath of allegiance is therefore unlawful and
void.
100
Georg Schwarzenberger, International Law as applied by International Courts and Tribunals. Vol. II: The Law
of Armed Conflict 167 (1968).

16
 furthermore, later taken the lead in adopting a policy of non-recognition of ‘any situation,
treaty, or agreement which may be brought about by means contrary to the covenants and
obligations of the Pact of Paris of August 27, 1928’ (the ‘Stimpson Doctrine’) which was
confirmed as a legal obligation in a resolution of the Assembly of the League of Nations
in 1932. Even if such a policy was not to amount to a legally binding commitment on the
part of the US not to acquire territory by use or threat of force during the latter stages of
the 19th Century, there is room to argue that the doctrine of estoppel might operate to
prevent the US subsequently relying upon forcible annexation as a basis for claiming title
to the Hawaiian Islands.101

When United States troops were removed from Hawaiian territory on April 1, 1893, by order of
President Cleveland’s special investigator, James Blount, he was not aware that the provisional
government was a puppet regime. As such, they remained in full power where, according to the
Hawaiian Patriotic League, the “public funds have been outrageously squandered for the
maintenance of an unnecessary large army, fed in luxury, and composed entirely of aliens, mainly
recruited from the most disreputable classes of San Francisco.”102

After the President determined the illegality of the situation and entered into an agreement with
Queen Lili‘uokalani to reinstate the executive monarch, the puppet regime refused to give up its
power. Despite the President’s failure to carry out the agreement of reinstatement and to ultimately
transform the state of affairs to a state of peace, the Hawaiian situation remained a state of war and
the rules of jus in bello continued to apply.

When the provisional government was formed, through intervention, it only replaced the executive
monarch and her cabinet with insurgents calling themselves an executive and advisory councils.
With the oversight of United States troops, all Hawaiian government officials remained in place
and were coerced into signing oaths of allegiance to the new regime.103 This continued when the
American puppet changed its name to the so-called Republic of Hawai‘i on July 4, 1894 with alien
mercenaries replacing American troops.

During the Spanish-American War, under the guise of a Congressional joint resolution of
annexation, United States armed forces physically reoccupied the Hawaiian Kingdom on August
12, 1898. According to the United States Supreme Court, “[t]hough the [annexation] resolution
was passed July 7, [1898] the formal transfer was not made until August 12, when, at noon of that

101
Matthew Craven, Continuity of the Hawaiian Kingdom 12 (2002) (online at
https://hawaiiankingdom.org/pdf/Continuity_Hawn_Kingdom.pdf).
102
Executive Documents, at 1296.
103
Id., at 211, “All officers under the existing Government are hereby requested to continue to exercise their
functions and perform the duties of their respective offices, with the exception of the following named person:
Queen Liliuokalani, Charles B. Wilson, Marshal, Samuel Parker, Minister of Foreign Affairs, W.H. Cornwell,
Minister of Finance, John F. Colburn, Minister of the Interior, Arthur P. Peterson, Attorney-General, who are hereby
removed from office. All Hawaiian Laws and Constitutional principles not inconsistent herewith shall continue in
force until further order of the Executive and Advisory Councils.”

17
day, the American flag was raised over the government house, and the islands ceded with
appropriate ceremonies to a representative of the United States.”104 Patriotic societies and many of
the Hawaiian citizenry boycotted the ceremony and “they protested annexation occurring without
the consent of the governed.”105

Marek asserts that, “a disguised annexation aimed at destroying the independence of the occupied
State, represents a clear violation of the rule preserving the continuity of the occupied State.”106
Even the U.S. Department of Justice in 1988, opined, it is “unclear which constitutional power
Congress exercised when it acquired Hawaii by joint resolution.”107 Then in 1900, the Congress
renamed the Republic of Hawai‘i to the Territory of Hawai‘i under An Act To provide a
government for the Territory of Hawai‘i.”108

Extraterritorial Application of United States Municipal Laws

Further usurping Hawaiian sovereignty, the Congress, in 1959, renamed the Territory of Hawai‘i
to the State of Hawai‘i under An Act To provide for the admission of the State of Hawai‘i into the
Union.109 These Congressional laws, which have no extraterritorial effect, did not transform the
puppet regime into a military government recognizable under the rules of jus in bello. The
maintenance of the puppet also stands in direct violation of customary international law in 1893,
the 1907 HC IV, and the GC IV. The governmental infrastructure of the Hawaiian Kingdom
continued as the governmental infrastructure of the State of Hawai‘i.

It is also important to note, for the purposes of jus in bello, that the United States never made an
international claim to the Hawaiian Islands through debellatio. Instead, the United States, in 1959,
falsely reported to the United Nations Secretary General that “Hawaii has been administered by
the United States since 1898. As early as 1900, Congress passed an Organic Act, establishing
Hawaii as an incorporated territory in which the Constitution and laws of the United States, which
were not locally inapplicable, would have full force and effect.”110 This extraterritorial application

104
Territory of Hawai‘i v. Mankichi, 190 U.S. 197, 212 (1903).
105
Tom Coffman, Nation Within: The History of the American Occupation of Hawai‘i 322 (2016). Coffman initially
published this book in 1998 titled Nation Within: The Story of the American Annexation of the Nation of Hawai‘i.
Coffman explained, “In the book’s subtitle, the word Annexation has been replaced by the word Occupation,
referring to America’s occupation of Hawai‘i. Where annexation connotes legality by mutual agreement, the act was
not mutual and therefore not legal. Since by definition of international law there was no annexation, we are left then
with the word occupation,” at xvi.
106
Marek, at 110.
107
Douglas Kmiec, “Department of Justice, Legal Issues Raised by Proposed Presidential Proclamation to Extend
the Territorial Sea,” 12 Op. O.L.C. 238, 262 (1988).
108
31 Stat. 141 (1900).
109
73 Stat. 4 (1959).
110
United Nations, Cessation of the transmission of information under Article 73e of the Charter: communication
from the Government of the United States of America, Document no. A/4226, Annex 1, p. 2 (24 September 1959).

18
of American laws is not only in violation of The Lotus case principle,111 but is also prohibited by
the rules of jus in bello. This subject is fully treated by Benvenisti, who states:

The occupant may not surpass its limits under international law through extraterritorial
prescriptions emanating from its national institutions: the legislature, government, and
courts. The reason for this rule is, of course, the functional symmetry, with respect to the
occupied territory, among the various lawmaking authorities of the occupying state.
Without this symmetry, Article 43 could become meaningless as a constraint upon the
occupant, since the occupation administration would then choose to operate through
extraterritorial prescription of its national institutions.112

As an occupying State, the United States was obligated to establish a military government, whose
purpose would be to provisionally administer the laws of the occupied State—the Hawaiian
Kingdom—until a treaty of peace, or an agreement to terminate the occupation, has been done.
“Military government is the form of administration by which an occupying power exercises
governmental authority over occupied territory.”113 “By military government,” according to
Winthrop, “is meant that dominion exercised in war by a belligerent power over territory of the
enemy invaded and occupied by him and over the inhabitants thereof.” In his dissenting opinion
in Ex parte Miligan, U.S. Supreme Court Chief Justice Chase explained:

There are under the Constitution three kinds of military jurisdiction: one to be exercised
both in peace and war; another to be exercised in time of foreign war without the boundaries
of the United States, or in time of rebellion and civil war within states or districts occupied
by rebels treated as belligerents; and a third to be exercised in time of invasion or
insurrection within the limits of the United States, or during a rebellion within the limits of
states maintaining adhesion to the National Government, when the public danger requires
its exercise. … the second may be distinguished as MILITARY GOVERNMENT,
superseding, as far as may be deemed expedient, the local law, and exercised by the military
commander under the direction of the President.114

Since 1893, there has been no military government, established by the United States under the
rules of jus in bello, to administer the laws of the Hawaiian Kingdom as it stood prior to the
overthrow. Instead, what occurred was the unlawful seizure of the apparatus of Hawaiian
governance, its infrastructure, and its properties—both real and personal. This was a theft of an
independent State’s self-government.

111
Lotus, 1927 PCIJ Series A, No. 10, p. 18.
112
Benvenisti, at 19.
113
United States Army Field Manual 27-10, sec. 362 (1956).
114
Ex parte Miligan, 71 U.S. 2, 141-142 (1866).

19
Denationalization through Americanization

In 1906, the Territory of Hawai‘i intentionally sought to “Americanize” the school children
throughout the Hawaiian Islands. To accomplish this, they instituted a policy of denationalization.
Under the policy titled “Programme for Patriotic Exercises in the Public Schools,” the national
language of Hawaiian was banned and replaced with the American language of English.115 Young
students who spoke the Hawaiian language in school were severely disciplined. One of the leading
newspapers for the insurgents, who were now officials in the territorial regime, printed a story on
the plan of denationalization. The Hawaiian Gazette reported:

As a means of inculcating patriotism in the schools, the Board of Education [of the
territorial government] has agreed upon a plan of patriotic observance to be followed in the
celebration of notable days in American history, this plan being a composite drawn from
the several submitted by teachers in the department for the consideration of the Board. It
will be remembered that at the time of the celebration of the birthday of Benjamin Franklin,
an agitation was begun looking to a better observance of these notable national days in the
schools, as tending to inculcate patriotism in a school population that needed that kind of
teaching, perhaps, more than the mainland children do [emphasis added].116

It is important here to draw attention to the word “inculcate.” As a verb, the term imports force
such as to convince, implant, and indoctrinate. Brainwashing is its colloquial term. When a reporter
from the American news magazine, Harper’s Weekly, visited the Ka‘iulani Public School in
Honolulu in 1907, he reported:

At the suggestion of Mr. Babbitt, the principal, Mrs. Fraser, gave an order, and within ten
seconds all of the 614 pupils of the school began to march out upon the great green lawn
which surrounds the building.… Out upon the lawn marched the children, two by two, just
as precise and orderly as you find them at home. With the ease that comes of long practice
the classes marched and counter-marched until all were drawn up in a compact array facing
a large American flag that was dancing in the northeast trade-wind forty feet above their
heads.… “Attention!” Mrs. Fraser commanded. The little regiment stood fast, arms at side,
shoulders back, chests out, heads up, and every eye fixed upon the red, white and blue
emblem that waived protectingly over them. “Salute!” was the principal’s next command.
Every right hand was raised, forefinger extended, and the six hundred and fourteen fresh,
childish voices chanted as one voice: “We give our heads and our hearts to God and our
Country! One Country! One Language! One Flag!”117

115
Programme for Patriotic Exercises in the Public Schools, Territory of Hawai‘i, adopted by the Department of
Public (1906) (online a: http://hawaiiankingdom.org/pdf/1906_Patriotic_Exercises.pdf).
116
Patriotic Program for School Observance, Hawaiian Gazette 5 (3 Apr. 1906) (online at
http://hawaiiankingdom.org/pdf/Patriotic_Program_Article.pdf).
117
William Inglis, Hawai‘i’s Lesson to Headstrong California: How the Island Territory has solved the problem of
dealing with its four thousand Japanese Public School children, Harper’s Weekly 227 (16 Feb. 1907).

20
Dismantling Universal Health Care

On July 31, 1901 an article was published in The Pacific Commercial Advertiser in Honolulu.118 It
is a window into a time of colliding legal systems and the Queen’s Hospital would soon become
the first Hawaiian health institution to fall victim to the unlawful imposition of American laws.
The Advertiser reported:

The Queen’s Hospital was founded in 1859 by their Majesties Kamehameha IV and his
consort Emma Kaleleonalani. The hospital is organized as a corporation and by the terms
of its charter the board of trustees is composed ten members elected by the society and ten
members nominated by the Government, of which the President of the Republic (now
Governor of the Territory) shall be the presiding officer. The charter also provides for the
“establishing and putting in operation a permanent hospital in Honolulu, with a dispensary
and all necessary furniture and appurtenances for the reception, accommodation and
treatment of indigent sick and disabled Hawaiians, as well as such foreigners and other
who may choose to avail themselves of the same.”

Under this construction all native Hawaiians have been cared for without charge, while for
others a charge has been made of from $1 to $3 per day. The bill making the appropriation
for the hospital by the Government provides that no distinction shall be made as to race;
and the Queen’s Hospital trustees are evidently up against a serious proposition.

Queen’s Hospital was established as the national hospital for the Hawaiian Kingdom and that
health care services for Hawaiian subjects of aboriginal blood was at no charge. The Hawaiian
head of state would serve as the ex officio President of the Board together with twenty trustees, ten
of whom were from the Hawaiian government.

Since the hospital’s establishment in 1859 the legislature of the Hawaiian Kingdom subsidized the
hospital along with monies from the Queen Emma Trust. With the unlawful imposition of the 1900
Organic Act that formed the Territory of Hawai‘i, American law did not allow public monies to
be used for the benefit of a particular race. 1909 was the last year Queen’s Hospital received public
funding and it was also the same year that the charter was unlawfully amended to replace the
Hawaiian head of state with an elected president from the private sector and reduced the number
of trustees from twenty to seven, which did not include government officers.

These changes to a Hawaiian quasi-public institution is a direct violation of the laws of occupation,
whereby the United States was and continues to be obligated to administer the laws of the occupied

118
Hawaiian Kingdom Blog, Queen’s Hospital First Hawaiian Health Institution to Fall Victim to the Unlawful
Occupation (9 Sep. 2018) (online at https://hawaiiankingdom.org/blog/queens-hospital-first-hawaiian-health-
institution-to-fall-victim-to-the-unlawful-occupation/).

21
State—the Hawaiian Kingdom. This requirement comes under Article 43 of the 1907 Hague
Convention, IV, and Article 64 of the 1949 Geneva Convention, IV.

Article 55 of the Hague Convention provides, “The occupying State shall be regarded only as
administrator and usufructuary of public buildings, real estate, forests, and agricultural estates
belonging to the [occupied] State, and situated in the occupied country. It must safeguard the
capital of these properties, and administer them in accordance with the rules of usufruct.” The term
“usufruct” is to administer the property or institution of another without impairing or damaging it.

Despite these unlawful changes, aboriginal Hawaiian subjects, whether pure or part, are to receive
health care at Queen’s Hospital free of charge. This did not change, but
through denationalization there was an attempt of erasure. Aboriginal Hawaiian subjects
are protected persons as defined under international law, and as such, the prevention of health care
by Queen’s Hospital constitutes war crimes. Furthermore, there is a direct nexus of deaths of
aboriginal Hawaiians as “the single racial group with the highest health risk in the State of Hawai‘i
[that] stems from…late or lack of access to health care” to crime of genocide.
The State of Hawai‘i is a Private Armed Force

When the United States assumed control of its installed regime, under the new heading of the
Territory of Hawai‘i in 1900, and later the State of Hawai‘i in 1959, it surpassed “its limits under
international law through extraterritorial prescriptions emanating from its national institutions: the
legislature, government, and courts.”119 The legislation of every State, including the United States
by its Congress, are not sources of international law. In The Lotus case, the Permanent Court of
International Justice stated that “[n]ow 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.”120 According to Judge Crawford,
derogation of this principle will not be presumed.121

Since Congressional legislation has no extraterritorial effect, it cannot unilaterally establish

governments in the territory of a foreign State. According to the U.S. Supreme Court, “[n]either
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.”122
The Court also concluded that “[t]he laws of no nation can 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.”123 Therefore, the State of Hawai‘i cannot claim to

119
Benvenisti, at 19.
120
See Lotus.
121
Crawford, at 41.
122
United States v. Curtiss Wright Export Corp., 299 U.S. 304, 318 (1936).
123
The Apollon, 22 U.S. 362, 370 (1824).

22
be a government because its only claim to authority derives from Congressional legislation that
has no extraterritorial effect. As such, jus in bello defines the State of Hawai‘i as an organized
armed group acting for and on behalf of the United States.124

“[O]rganized armed groups … are under a command responsible to that party for the conduct of
its subordinates.”125 According to Henckaerts and Doswald-Beck, “this definition of armed forces
covers all persons who fight on behalf of a party to a conflict and who subordinate themselves to
its command,”126 and that this “definition of armed forces builds upon earlier definitions contained
in the Hague Regulations and the Third Geneva Convention which sought to determine who are
combatants entitled to prisoner-of-war status.”127 Article 1 of the 1907 HC IV, provides:

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.

Since the Larsen case, defendants, that have appeared before the courts of this armed group, have
begun to deny the courts’ jurisdiction. In a contemptible attempt to quash this defense, the Supreme
Court of the State of Hawai‘i in 2013 responded to a defendant, who “contends that the courts of
the State of Hawai‘i lacked subject matter jurisdiction over his criminal prosecution because the
defense proved the existence of the Hawaiian Kingdom and the illegitimacy of the State of Hawai‘i
government,128 with “whatever may be said regarding the lawfulness” of its origins, “the State of
Hawai‘i … is now, a lawful government [emphasis added].”129 Unable to rebut the factual evidence
being presented by defendants, the highest court of the State of Hawai‘i could only resort to fiat
and not juridical facts.

This fiat of the highest court of the State of Hawai‘i has since been continuously invoked by
prosecutors in criminal cases and plaintiffs in civil cases to avoid the undisputed and
insurmountable factual and legal conclusions as to the continued existence of the Hawaiian
Kingdom, as a subject of international law, and the illegitimacy of the State of Hawai‘i
government. On this note, Marek explains that an occupier without title or sovereignty “must rely
heavily, if not exclusively, on full and complete effectiveness.”130

124
Article 1, 1899 Hague Convention, II, and Article 1, 1907 Hague Convention, IV.
125
Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, Vol. I, 14
(2009).
126
Id., at 5.
127
Id.
128
State of Hawai‘i v. Dennis Kaulia, 128 Hawai‘i 479, 486 (2013).
129
Id., at 487.
130
Marek, at 102.

23
The laws and customs of war during occupation applies only to territories that come under the
authority of either the occupier’s military and/or an occupier’s armed force, such as the State of
Hawai‘i, and that the “occupation extends only to the territory where such authority has been
established and can be exercised.”131 According to Ferraro, “occupation—as a species of
international armed conflict—must be determined solely on the basis of the prevailing facts.”132

The Restoration of the Hawaiian Kingdom Government

On December 10, 1995, David Keanu Sai (“Sai”) and Donald A. Lewis (“Lewis”), both being
Hawaiian subjects, formed a general partnership in compliance with an Act to Provide for the
Registration of Co-partnership Firms (1880).133 This partnership was named the Perfect Title
Company (“PTC”) and functioned as a land title abstracting company.134 According to Hawaiian
law, co-partnerships were required to register their articles of agreement with the Interior
Department’s Bureau of Conveyances, and for the Minister of the Interior, it was his duty to ensure
that co-partnerships maintain their compliance with the statute. However, due to the failure of the
United States to administer Hawaiian Kingdom law, there was no government, whether established
by the United States President or a restored Hawaiian Kingdom government de jure, to ensure the
company’s compliance to the co-partnership statute.

The partners of PTC intended to establish a legitimate co-partnership in accordance with Hawaiian
Kingdom law and in order for the title company to exist as a legal co-partnership firm, the
Hawaiian Kingdom government had to be reestablished in an acting capacity. An acting official is
“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.”135 Hawaiian law did not assume that the entire Hawaiian
government would be made vacant, and, consequently, the law did not formalize provisions for
the reactivation of the government in extraordinary circumstances. Therefore, notwithstanding the
prolonged occupation of the Hawaiian Kingdom since January 17, 1893, a deliberate course of
action was taken to re-activate the Hawaiian government by and through its executive branch, as
officers de facto, under the common law doctrine of necessity.

The Hawaiian Kingdom’s 1880 Co-partnership Act requires members of co-partnerships to

register their articles of agreement in the Bureau of Conveyances, which is within the Ministry of
the Interior. This same Bureau of Conveyances is now under the State of Hawai‘i’s Department of
Land and Natural Resources, which was formerly the Interior Department of the Hawaiian
Kingdom. The Minister of the Interior holds a seat of government as a member of the Cabinet

131
1907 Hague Convention, IV, Article 42.
132
Tristan Ferraro, “Determining the beginning and end of an occupation under international humanitarian law,” 94
(885) Int’l Rev. Red Cross 133, 134 (Spring 2012).
133
Co-partnership Act (1880) (online at http://hawaiiankingdom.org/pdf/1880_Co-Partnership_Act.pdf).
134
PTC’s articles of agreement (Dec. 10, 1995) (online at http://hawaiiankingdom.org/pdf/PTC_(12.10.1995).pdf).
135
Black’s Law Dictionary 26 (1990).

24
Council, together with the other Cabinet Ministers. Article 43 of the 1864 Hawaiian constitution,
as amended, provides that, “Each member of the King’s Cabinet shall keep an office at the seat of
Government, and shall be accountable for the conduct of his deputies and clerks.” Necessity
dictated that in the absence of any “deputies or clerks” of the Interior department, the partners of
a registered co-partnership could assume the duty of the same because of the current state of affairs.

Therefore, it was reasonable for the partners of this registered co-partnership to assume the office
of the Registrar of the Bureau of Conveyances in the absence of the same; then assume the office
of the Minister of Interior in the absence of the same; then assume the office of the Cabinet Council
in the absence of the Minister of Foreign Affairs, the Minister of Finance and the Attorney General;
and, finally assume the office constitutionally vested in the Cabinet as a Regency, in accordance
with Article 33 of the 1864 Hawaiian constitution, as amended.136 A regency is a person or body
of persons “intrusted with the vicarious government of a kingdom during the minority, absence,
insanity, or other disability of the [monarch].”137

On December 15, 1995, with the specific intent of assuming the “seat of Government,” the partners
of PTC formed a second partnership called the Hawaiian Kingdom Trust Company (“HKTC”).138
The partners intended that this registered partnership would serve as a provisional surrogate for
the Council of Regency. Therefore, and in light of the aforementioned ascension process, HKTC
would serve, by necessity, as officers de facto, in an acting capacity, for the Registrar of the Bureau
of Conveyances, the Minister of Interior, the Cabinet Council, and ultimately for the Council of
Regency. Article 33 of the 1864 Constitution, as amended, provides, “should a Sovereign
decease…and having made no last Will and Testament, the Cabinet Council…shall be a Council
of Regency.”

The purpose of the HKTC was twofold; first, to ensure PTC complies with the co-partnership
statute, and, second, to provisionally serve as an acting government of the Hawaiian Kingdom.
What became apparent was the impression of a conflict of interest, whereby the duty to comply
and the duty to ensure compliance was vested in the same two partners of those two companies.
Therefore, in order to avoid this apparent conflict of interest, the partners of both PTC and HKTC,
reasoned that an acting Regent, having no interests in either company, should be appointed to serve
as a de facto officer of the Hawaiian government. Since HKTC assumed to represent the interests
of the Hawaiian government in an acting capacity, the trustees would make the appointment.

The assumption by Hawaiian subjects, through the offices of constitutional authority in

government, to the office of Regent, as enumerated under Article 33 of the Hawaiian Constitution,
was a de facto process born out of necessity. Cooley defines an officer de facto “to be one who has

136
1864 constitution (online at http://hawaiiankingdom.org/pdf/1864_Constitution.pdf).
137
Black’s Law, at 1282.
138
HKTC articles of agreement (Dec. 15, 1995) (online at
http://hawaiiankingdom.org/pdf/HKTC_(12.15.1995).pdf).

25
the reputation of being the officer he assumes to be, and yet is not a good officer in point of law,”
but rather “comes in by claim and color of right.”139 In Carpenter v. Clark, the Michigan Court
stated the “doctrine of a de facto officer is said to have originated as a rule of public necessity to
prevent public mischief and protect the rights of innocent third parties who may be interested in
the acts of an assumed officer apparently clothed with authority and the courts have sometimes
gone far with delicate reasoning to sustain the rule where threatened rights of third parties were
concerned.”140

In a meeting of the HKTC, it was agreed that Sai would be appointed to serve as acting Regent
but could not retain an interest in either of the two companies prior to the appointment because of
a conflict of interest. In that meeting, it was also decided, and agreed upon, that Nai‘a-Ulumaimalu,
a Hawaiian subject, would replace Sai as trustee of HKTC and partner of PTC. This plan was to
maintain the standing of the two partnerships under the 1880 Co-partnership Act, and not have
either partnership lapse into sole-proprietorships.

To accomplish this, Sai would relinquish, by a deed of conveyance in both companies, his entire
one-half (50%) interest to Lewis, after which, Lewis would convey a redistribution of interest to
Nai‘a-Ulumaimalu, then the former would hold a ninety-nine percent (99%) interest in the two
companies and the latter a one percent (1%) interest in the same. In order to have these two
transactions take place simultaneously, without affecting the standing of the two partnerships, both
deeds of conveyance took place on the same day but did not take effect until the following day, on
February 28, 1996.141 On March 1, 1996, the Trustees of HKTC appointed David Keanu Sai as
acting Regent.142

On the same day, Sai, as acting Regent, proclaimed himself, as the successor of the HKTC to the
aforementioned covenant of agreement, for carrying out the quieting of all land titles in the
Hawaiian Islands.143 As a de facto officer, representing the original warrantor of all lands in fee-
simple—the Hawaiian Kingdom government, the acting Regent was empowered, to remedy
rejected claims to title that have been properly investigated by PTC, in accordance with the
aforementioned covenant of agreement.

On May 15, 1996, the Trustees conveyed by deed, all of its right, title and interest acquired by
thirty-eight deeds of trust, to Sai, then as acting Regent, and stipulated that the company would be

139
Thomas Cooley, A Treatise on the Law of Taxation 185 (1876).
140
Carpenter v. Clark, 217 Michigan 63, 71 (1921).
141
Deed from David Keanu Sai to Donald A. Lewis (Feb. 27, 1996) (online at
http://hawaiiankingdom.org/pdf/Sai_to_Lewis_Deed.pdf), Deed of Donald A. Lewis to Nai‘a-Ulumaimalu’s (Feb.
27, 1996) (online at http://hawaiiankingdom.org/pdf/Nai%E2%80%98a_to_Lewis_Deed.pdf).
142
Notice of appointment of Regent by HKTC (Mar. 1, 1996) (online at
http://hawaiiankingdom.org/pdf/HKTC_Appt_Regent.pdf).
143
HKTC notice of proclamation no. 1 by the Regent (Mar. 1, 1996) (online at
http://hawaiiankingdom.org/pdf/Proc_(3.1.1996).pdf).

26
dissolved in accordance with the provisions of its deed of general partnership on or about June 30,
1996.144

On February 28, 1997, a Proclamation by the acting Regent announcing the restoration of the
provisional Hawaiian government was printed in the Honolulu Sunday Advertiser on March 9,
1997.145 The international law of occupation allows for an occupied State’s government and the
military government of an occupying State to co-exist within the same territory. According to
Marek, “it is always the legal order of the [s]tate which constitutes the legal basis for the existence
of its government, whether such government continues to function in its own country or goes into
exile; but never the delegation of the [occupying] [s]tate nor any rule of international law other
than the one safeguarding the continuity of an occupied [s]tate. The relation between the legal
order of the [occupying] [s]tate and that of the occupied [s]tate…is not one of delegation, but of
co-existence.”146

Notwithstanding the prolonged occupation of the Hawaiian Kingdom since January 17, 1893, the
establishment of an acting Regent—an officer de facto, was a political act of self-preservation, not
revolution, and was grounded upon the legal doctrine of limited necessity. Under British common
law, deviations from a State’s constitutional order “can be justified on grounds of necessity.”147 De
Smith also states, that “State necessity has been judicially accepted in recent years as a legal
justification for ostensibly unconstitutional action to fill a vacuum arising within the constitutional
order [and to] this extent it has been recognized as an implied exception to the letter of the
constitution.”148 According to Oppenheimer, “a temporary deviation from the wording of the
constitution is justifiable if this is necessary to conserve the sovereignty and independence of the
country.”149 In Madzimbamuto v. Lardner-Burke, Lord Pearce stated that there are certain
limitations to the principle of necessity, “namely (a) so far as they are directed to and reasonably
required for ordinary orderly running of the State, and (b) so far as they do not impair the rights of
citizens under the lawful…Constitution, and (c) so far as they are not intended to and do not run
contrary to the policy of the lawful sovereign.”150

On September 7, 1999, the acting Regent, commissioned Mr. Peter Umialiloa Sai, a Hawaiian
subject, as acting Minister of the Interior, and Mrs. Kau‘i P. Goodhue, later to be known as Mrs.

144
Deed from HKTC to Regent (May 15, 1996) (online at
http://hawaiiankingdom.org/pdf/HKTC_Deed_to_Regent.pdf).
145
Proclamation by the Regent, Honolulu Advertiser newspaper (Feb. 28, 1997) (online at
http://hawaiiankingdom.org/pdf/Proc_(2.28.1997).pdf).
146
Marek, at 91.
147
Stanley A. de Smith, Constitutional and Administrative Law 80 (1986).
148
Id.
149
F.W. Oppenheimer, “Governments and Authorities in Exile,” 36 Am. J. Int’l. L. 568, 581 (1942).
150
See Madzimbamuto v. Lardner-Burke, 1 A.C. 645, 732 (1969). See also Mitchell v. Director of Public
Prosecutions, L.R.C. (Const) 35, 88–89 (1986); and Chandrika Persaud v. Republic of Fiji (Nov. 16, 2000); and
Mokotso v. HM King Moshoeshoe II, LRC (Const) 24, 132 (1989).

27
Kau‘i P. Sai-Dudoit, a Hawaiian subject, as acting Minister of Finance.151 On September 9, 1999,
the acting Regent commissioned Mr. Gary Victor Dubin, Esquire, a Hawaiian denizen, as acting
Attorney General.152 Dubin resigned on July 21, 2013, and was replaced Mr. Dexter Ka‘iama,
Esquire, on August 11, 2013.153

On September 26, 1999, the acting Regent, the acting Minister of Foreign Affairs, the acting
Minister of Finance, and the acting Attorney General, in Privy Council, passed a resolution
establishing an acting Council of Regency, whereby the author, as acting Regent, would resume
the office of acting Minister of the Interior and serve as Chairman of the Council.154

The acting Council of Regency (“Hawaiian government”), serving as the provisional government
of the Hawaiian Kingdom, was established in situ and not in exile. The Hawaiian government was
established in accordance with the Hawaiian constitution and the doctrine of necessity to serve in
the absence of the executive monarch. By virtue of this process the Hawaiian government is
comprised of officers de facto. According to U.S. constitutional scholar Thomas Cooley,

A provisional government is supposed to be a government de facto for the time being; a

government that in some emergency is set up to preserve order; to continue the relations of
the people it acts for with foreign nations until there shall be time and opportunity for the
creation of a permanent government. It is not in general supposed to have authority beyond
that of a mere temporary nature resulting from some great necessity, and its authority is
limited to the necessity.155

During the Second World War, like other governments formed during foreign occupations of their
territory, the Hawaiian government did not receive its mandate from the Hawaiian legislature, but
rather by virtue of Hawaiian constitutional law as it applies to the Cabinet Council.156 Although
Article 33 provides that Cabinet Council “shall be a Council of Regency, until the Legislative
Assembly, which shall be called immediately [and] 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

151
Hawaiian Minister of Foreign Affairs commission—Peter Umialiloa Sai (Sep. 5, 1999) (online at
http://hawaiiankingdom.org/pdf/Umi_Sai_Min_Foreign_Affairs.pdf), and the Hawaiian Minister of Finance
commission—Kau‘i P. Goodhue (Sep. 5, 1999) (online at
http://hawaiiankingdom.org/pdf/Kaui_Min_of_Finance.pdf).
152
Hawaiian Attorney General commission—Gary V. Dubin (Sep. 9, 1999) (online at
http://hawaiiankingdom.org/pdf/Dubin_Att_General.pdf).
153
Hawaiian Attorney General commission—Dexter Ke‘eaumoku Ka‘iama (Aug. 11, 2013) (online at
https://www.hawaiiankingdom.org/pdf/Kaiama_Att_General.pdf).
154
Privy Council Resolution establishing a Council of Regency (Sep. 26, 1999) (online at
http://hawaiiankingdom.org/pdf/Council_of_Regency_Resolution.pdf).
155
Thomas M. Cooley, “Grave Obstacles to Hawaiian Annexation,” The Forum, 389, 390 (1893).
156
The policy of the Hawaiian government is threefold: first, exposure of the prolonged occupation; second, ensure
that the United States complies with international humanitarian law; and, third, prepare for an effective transition to
a de jure government when the occupation ends. The Strategic Plan of the Hawaiian government is available at
http://hawaiiankingdom.org/pdf/HK_Strategic_Plan.pdf.

28
all the Powers which are constitutionally vested in the King,” the convening of the Legislative
Assembly was not possible in light of the prolonged occupation. The impossibility of convening
the Legislative Assembly during the occupation did not prevent the Cabinet from becoming the
Council of Regency because of the operative word “shall,” but only prevents the Legislature from
electing a Regent or Regency.

Therefore, the Council was established in similar fashion to the Belgian Council of Regency after
King Leopold was captured by the Germans during World War II. As the Belgian Council was
established under Article 82 of its 1821 Constitution, as amended, in exile, the Hawaiian Council
was established under Article 33 of its 1864 Constitution, as amended, not in exile but rather in
situ.157 As Oppenheimer explained:

As far as Belgium is concerned, the capture of the king did not create any serious
constitutional problems. According to Article 82 of the Constitution of February 7, 1821,
as amended, the cabinet of ministers have to assume supreme executive power if the King
is unable to govern. True, the ministers are bound to convene the House of Representatives
and the Senate and to leave it to the decision of the united legislative chambers to provide
for a regency; but in view of the belligerent occupation it is impossible for the two houses
to function. While this emergency obtains, the powers of the King are vested in the Belgian
Prime Minister and the other members of the cabinet.158

The existence of the restored government in situ was not dependent upon diplomatic recognition
by foreign States, but rather operated on the presumption of recognition these foreign States
already afforded to the Hawaiian government as of 1893. The Council of Regency was not a new
government like the Czech government established in exile in London during World War II, but
rather the successor of the same government of 1893 formed under and by virtue of its
constitutional provisions.

Lance Larsen v. Hawaiian Kingdom—Permanent Court of Arbitration

In 2001, Bederman and Hilbert reported in the American Journal of International Law,

At the center of the PCA proceedings was … that the Hawaiian Kingdom continues to exist
and that the Hawaiian Council of Regency (representing the Hawaiian Kingdom) is legally
responsible under international law for the protection of Hawaiian subjects, including the
claimant. In other words, the Hawaiian Kingdom was legally obligated to protect Larsen
from the United States’ “unlawful imposition [over him] of [its] municipal laws” through
its political subdivision, the State of Hawaii. As a result of this responsibility, Larsen

157
David Keanu Sai, The Continuity of the Hawaiian State and the Legitimacy of the acting Government of the
Hawaiian Kingdom, para. 8.1-8.17 (2013) (online at https://hawaiiankingdom.org/pdf/Continuity_Brief.pdf).
158
F.E. Oppenheimer, “Governments and Authorities in Exile,” 36 Am. J. Int’l L. 569 (1942).

29
 submitted, the Hawaiian Council of Regency should be liable for any international law
violations that the United States had committed against him.159

The Tribunal concluded that it did not possess subject matter jurisdiction in the case because of
the indispensable third-party rule. The Tribunal explained:

It follows that the Tribunal cannot determine whether the respondent [the Hawaiian
Kingdom] has failed to discharge its obligations towards the claimant [Larsen] without
ruling on the legality of the acts of the United States of America. Yet that is precisely what
the Monetary Gold principle precludes the Tribunal from doing. As the International Court
of Justice explained in the East Timor case, “the Court could not rule on the lawfulness of
the conduct of a [s]tate when its judgment would imply an evaluation of the lawfulness of
the conduct of another [s]tate which is not a party to the case.”160

The Tribunal, however, acknowledged that the parties could pursue fact-finding. The Tribunal
stated, “[a]t one stage of the proceedings the question was raised whether some of the issues which
the parties wished to present might not be dealt with by way of a fact-finding process. In addition
to its role as a facilitator of international arbitration and conciliation, the Permanent Court of
Arbitration has various procedures for fact-finding, both as between States and otherwise.”161 The
Tribunal noted “that the interstate fact-finding commissions so far held under the auspices of the
Permanent Court of Arbitration have not confined themselves to pure questions of fact but have
gone on, expressly or by clear implication, to deal with issues of responsibility for those facts.”162
The Tribunal pointed out that “Part III of each of the Hague Conventions of 1899 and 1907 provide
for International Commissions of Inquiry. The PCA has also adopted Optional Rules for Fact-
finding Commissions of Inquiry.”163

Meeting with the Rwandan Government in Brussels

After the last day of the Larsen hearings were held at the Permanent Court of Arbitration (“PCA”)
on December 11, 2000, the Council was called to an urgent meeting by Dr. Jacques Bihozagara,
Ambassador for the Republic of Rwanda assigned to Belgium. Ambassador Bihozagara had been
attending a hearing before the International Court of Justice on December 8, 2000, (Democratic
Republic of the Congo v. Belgium),164 where he became aware of the Hawaiian arbitration case
taking place in the hearing room of the PCA.

159
Bederman & Hibert, at 928.
160
Larsen case, at 596.
161
Id., at 597.
162
Id.
163
Id., at n. 28.
164
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Provisional Measures, Order
of 8 December 2000, I.C.J. Rep. 2000, at 182.

30
The following day, the Council, which included the author as Agent, and two Deputy Agents, Peter
Umialiloa Sai, acting Minister of Foreign Affairs, and Mrs. Kau‘i P. Sai-Dudoit, formerly known
as Kau‘i P. Goodhue, acting Minister of Finance, met with Ambassador Bihozagara in Brussels.165
In that meeting, he explained that since he accessed the pleadings and records of the Larsen case
on December 8 from the PCA’s secretariat, he had been in communication with his government.
This prompted our meeting where he conveyed to author, as Chairman of the Council and agent in
the Larsen case, that his government was prepared to bring to the attention of the United Nations
General Assembly the prolonged occupation of the Hawaiian Kingdom by the United States and
to place our situation on the agenda. The author requested a short break of the meeting in order to
consult with the other members of the Council who were present.

After careful deliberation, the Council decided that it could not, in good conscience, accept this
offer. It felt the timing was premature because Hawai‘i’s population remained ignorant of
Hawai‘i’s profound legal position due to institutionalized denationalization—Americanization by
the United States since the early twentieth century. On behalf of the Council, the author graciously
thanked Ambassador Bihozagara for his government’s offer, but stated that the Council first
needed to address over a century of denationalization. After exchanging salutations, the meeting
ended, and the Council returned that afternoon to The Hague.

Exposure of the Hawaiian Kingdom through the Medium of Academic Research

The decision by the Council to forego Rwanda’s invitation was made in line with section 495—
Remedies of Injured Belligerent, United States Army FM-27-10, which states, “[i]n the event of
violation of the law of war, the injured party may legally resort to remedial action of the following
types: a. Publication of the facts, with a view to influencing public opinion against the offending
belligerent.”166 After the Larsen case, the policy of the Council would be threefold: first, exposure
of the prolonged occupation; second, ensure that the United States complies with international
humanitarian law; and, third, prepare for an effective transition to a de jure government when the
occupation ends.

The United States’ belligerent occupation rests squarely within the regime of the law of occupation
in international humanitarian law. The application of the regime of occupation law “does not
depend on a decision taken by an international authority”,167 and “the existence of an armed conflict

165
David Keanu Sai, A Slippery Path towards Hawaiian Indigeneity, 10 J. L. & Soc. Challenges 69, 130-131 (2008).
166
“United States Basic Field Manual F.M. 27-10 (Rules of Land Warfare), though not a source of law like a statute,
prerogative order or decision of a court, is a very authoritative publication.” Trial of Sergeant-Major Shigeru Ohashi
and Six Others, 5 Law Reports of Trials of Law Criminals (United Nations War Crime Commission) 27 (1949).
167
C. Ryngaert and R. Fransen, “EU extraterritorial obligations with respect to trade with occupied territories:
Reflections after the case of Front Polisario before EU courts,” [2018] 2(1): 7. Europe and the World: A law review
[20], p. 8. (online at https://www.scienceopen.com/document_file/e5cc1ac6-41ee-40de-bbe9-
25c9df97ab1e/ScienceOpen/EWLR-2-7.pdf).

31
is an objective test and not a national ‘decision.’”168 According to Article 42 of the 1907 Hague
Regulations, a State’s territory is considered occupied when it is “actually placed under the
authority of the hostile army.”

Article 42 has three requisite elements: (1) the presence of a foreign State’s forces; (2) the exercise
of authority over the occupied territories by the foreign State or its proxy; and (3) the non-consent
by the occupied State. U.S. President Grover Cleveland’s manifesto to the Congress, which is
Annexure 1 in the Larsen v. Hawaiian Kingdom Award,169 and the continued U.S. presence today
without a treaty of peace firmly meets all three elements of Article 42. Hawai‘i’s people, however,
have become denationalized and the history of the Hawaiian Kingdom has been, for all intents and
purposes, obliterated within three generations since the United States’ takeover.

The Council deemed it their duty to explain to Hawai‘i’s people that before the PCA could
facilitate the formation of the Larsen tribunal, it had to ensure that it possessed “institutional
jurisdiction.” This jurisdiction required that the Hawaiian Kingdom be a “State.”170 This finding
authorized the Hawaiian Kingdom’s access to the PCA pursuant to Article 47 of the 1907 Hague
Convention for the Pacific Settlement of International Disputes, as a non-Contracting Power to the
convention. The PCA accepted the Larsen case as a dispute between a State and private entity,171
and, in its annual reports from 2001 to 2011,172 acknowledged the Hawaiian Kingdom as a non-
Contracting Power under Article 47 of the 1907 Hague Convention, I. This acknowledgement is
significant on two levels, first, the Hawaiian Kingdom had to exist as a State under international
law, otherwise the PCA would not have accepted the dispute to be settled through international
arbitration, and, second, the PCA explicitly recognized the Council as the governing body of the
Hawaiian Kingdom.

History of the illegal overthrow and purported annexation of the Hawaiian Islands is provided not
only in the pleadings of the Larsen case,173 but also in a 2002 legal brief by Dr. Matthew Craven,
Professor of Law from the University of London, SOAS, titled Continuity of the Hawaiian
Kingdom. Professor Craven wrote the brief for the Council of Regency as part of the latter’s focus
on exposure of the Hawaiian Kingdom’s legal status under international law through academic
research after returning from The Hague in 2000. Professor Craven’s memo was also referenced

168
Stuart Casey-Maslen (ed.), The War Report 2012 ix (2013).
169
U.S. President Grover Cleveland’s Message to Congress (Dec. 18, 1893) (online at
https://hawaiiankingdom.org/pdf/Cleveland's_Message_(12.18.1893).pdf); see also Larsen v. Hawaiian Kingdom,
119 International Law Reports (2001) 566, at 598-610.
170
United Nations, United Nations Conference on Trade and Development, Dispute Settlement—Permanent Court
of Arbitration 15 (2003) (online at https://unctad.org/en/Docs/edmmisc232add26_en.pdf).
171
Lance Larsen v. Hawaiian Kingdom, PCA Case no. 1999-01, Case Repository (online at https://pca-
cpa.org/en/cases/35/).
172
Annual Reports of the PCA (online at https://pca-cpa.org/en/about/annual-reports/).
173
Larsen v. Hawaiian Kingdom Arbitration Log Sheet (available at
http://www.alohaquest.com/arbitration/log.htm).

32
in Judge Crawford’s seminal book, The Creation of States in International Law (2nd ed.). Judge
Crawford wrote, “Craven offers a critical view on the plebiscite affirming the integration of Hawaii
into the United States.”174 In his brief, Professor Craven cited implications regarding the continuity
of the Hawaiian Kingdom:

The implications of continuity in case of Hawai‘i are several:

a) That authority exercised by US over Hawai‘i is not one of sovereignty i.e. that the
US has no legally protected ‘right’ to exercise that control and that it has no
original claim to the territory of Hawai’i or right to obedience on the part of the
Hawaiian population. Furthermore, the extension of US laws to Hawai’i, apart
from those that may be justified by reference to the law of (belligerent) occupation
would be contrary to the terms of international law.

b) That the Hawaiian people retain a right to self-determination in a manner

prescribed by general international law. Such a right would entail, at the first
instance, the removal of all attributes of foreign occupation, and a restoration of
the sovereign rights of the dispossessed government.

c) That the treaties of the Hawaiian Kingdom remain in force as regards other States
in the name of the Kingdom (as opposed to the US as a successor State) except as
may be affected by the principles rebus sic stantibu or impossibility of
performance.

d) That the Hawaiian Kingdom retains a right to all State property including that held
in the territory of third states, and is liable for the debts of the Hawaiian Kingdom
incurred prior to its occupation.175

In order to carry into effect the Council’s policy, it was decided that since author already had a
B.A. degree from the University of Hawai‘i at Manoa and familiar with what they have been
instructing on Hawai‘i’s history, he would enter the University of Hawai‘i at Manoa political
science department and secure an M.A. degree specializing in international relations, and then a
Ph.D. with focus on the continuity of the Hawaiian Kingdom as an independent and sovereign
State that has been under a prolonged occupation. The author received his M.A. degree in 2004,
and his Ph.D. degree in 2008. He is currently a faculty member of the University of Hawai‘i where
he teaches undergraduate and graduate courses on the Hawaiian Kingdom. Through the Council’s
policy, it has been able to effectively shift the discourse to belligerent occupation.

The Council’s objective was to engage over a century of denationalization through the medium of
academic research and publications, both peer review and law review. As a result, awareness of

174
James Crawford, The Creation of States in International Law, 2nd ed., 623, n. 83 (2006).
175
Craven, at 2.

33
the Hawaiian Kingdom’s political status has grown exponentially with multiple master’s theses,
doctoral dissertations, and publications being written on the subject. What the world knew, before
the Larsen case was held from 1999-2001, was drastically transformed to now. This transformation
was the result of academic research in spite of the continued American occupation.

This scholarship prompted a well-known historian in Hawai‘i, Tom Coffman, to change the
subtitle of his book in 2009, which Duke University republished in 2016, from The Story of
America’s Annexation of the Nation of Hawai‘i to The History of the American Occupation of
Hawai‘i. Coffman explained:

I am compelled to add that the continued relevance of this book reflects a far-reaching
political, moral and intellectual failure of the United States to recognize and deal with its
takeover of Hawai‘i. In the book’s subtitle, the word Annexation has been replaced by the
word Occupation, referring to America’s occupation of Hawai‘i. Where annexation
connotes legality by mutual agreement, the act was not mutual and therefore not legal.
Since definition of international law there was no annexation, we are left with the word
occupation.

In making this change, I have embraced the logical conclusion of my research into the
events of 1893 to 1898 in Honolulu and Washington, D.C. I am prompted to take this step
by a growing body of historical work by a new generation of Native Hawaiian scholars.
Dr. Keanu Sai writes, “The challenge for…the fields of political science, history, and law
is to distinguish between the rule of law and the politics of power.” In the history of
Hawai‘i, the might of the United States does not make it right.176

Furthermore, in 2016, Japan’s Seijo University’s Center for Glocal Studies published an article by
Dennis Riches titled This is not America: The Acting Government of the Hawaiian Kingdom Goes
Global with Legal Challenges to End Occupation.177 At the center of this article was the continuity
of the Hawaiian Kingdom, the Council of Regency, and the commission war crimes. Riches, who
is Canadian, wrote:

[The history of the Baltic States] is a close analog of Hawai‘i because the occupation by a
superpower lasted over several decades through much of the same period of history. The
restoration of the Baltic States illustrates that one cannot say too much time has passed, too
much has changed, or a nation is gone forever once a stronger nation annexes it. The
passage of time doesn’t erase sovereignty, but it does extend the time which the occupying
power has to neglect its duties and commit a growing list of war crimes.

176
Tom Coffman, Nation Within: The History of the American Occupation of Hawai‘i xvi (2016).
177
Dennis Riches, This is not America: The Acting Government of the Hawaiian Kingdom Goes Global with Legal
Challenges to End Occupation, Center for Glocal Studies, Seijo University 81-131, 89 (2016).

34
Additionally, school teachers, throughout the Hawaiian Islands, have also been made aware of the
American occupation through course work at the University of Hawai‘i and they are teaching this
material in the middle schools and the high schools. This exposure led the Hawai‘i State Teachers
Association (“HSTA”), which represents public school teachers throughout Hawai‘i, to introduce
a resolution—New Business Item 37, on July 4, 2017, at the annual assembly of the National
Education Association (“NEA”) in Boston, Massachusetts. The NEA represents 3.2 million public
school teachers, administrators, and faculty and administrators of universities throughout the
United States. The resolution stated:

The NEA will publish an article that documents the illegal overthrow of the Hawaiian
Monarchy in 1893, the prolonged illegal occupation of the United States in the Hawaiian
Kingdom, and the harmful effects that this occupation has had on the Hawaiian people and
resources of the land.178

When the HSTA delegates in attendance returned to Hawai‘i, they asked me to write three articles
for the NEA to publish: first, The Illegal Overthrow of the Hawaiian Kingdom Government (April
2, 2018);179 second, The U.S. Occupation of the Hawaiian Kingdom (October 1, 2018);180 and,
third, The Impact of the U.S. Occupation on the Hawaiian People (October 13, 2018).181
Awareness of the Hawaiian Kingdom’s situation has reached countless classrooms across the
United States. These publications by the NEA was the Council’s crowning jewel for its policy to
engage denationalization through Americanization.

Russian Government Acknowledges Illegal Annexation by the United States

This exposure also prompted the Russian government, on October 4, 2018, to admit that Hawai‘i
was illegally annexed by the United States. This acknowledgement occurred at a seminar entitled
“Russian America: Hawaiian Pages 200 Years After” held at the PIR-CENTER, Institute of
Contemporary International Studies, Diplomatic Academy of the Russian Foreign Ministry, in
Moscow. The topic of the seminar was the restoration of Fort Elizabeth, a Russian fort built on the
island of Kaua‘i in 1817. Professor Niklaus Schweizer, who is also the Hawaiian Kingdom’s
Envoy Extraordinary and Minister Plenipotentiary, was invited to participate in the seminar. Dr.
Schweizer is a former Swiss Consul and professor at the University of Hawai‘i at Manoa. His task
was to provide the history of Fort Elizabeth from a Hawaiian and Pacific point of view.

178
NEA New Business Item 37 (2017) (online at https://ra.nea.org/business-item/2017-nbi-037/).
179
Keanu Sai, The Illegal Overthrow of the Hawaiian Kingdom Government, NEA Today (Apr. 2, 2018) (online at
http://neatoday.org/2018/04/02/the-illegal-overthrow-of-the-hawaiian-kingdom-government/).
180
Keanu Sai, The U.S. Occupation of the Hawaiian Kingdom, NEA Today (Oct. 1, 2018) (online at
http://neatoday.org/2018/10/01/the-u-s-occupation-of-the-hawaiian-kingdom/).
181
Keanu Sai, The Impact of the U.S. Occupation on the Hawaiian People NEA Today (Oct. 13, 2018) (online at
http://neatoday.org/2018/10/13/us-occupation-of-hawaii/).

35
Leading the seminar was Dr. Vladimir Orlov, director of the PIR-CENTER. Notable participants
included Deputy Foreign Minister Sergej Ryabkov, Head of the Department of European Co-
operation and specialist on nuclear and other disarmament negotiations, and Russian Ambassador
to the United States, Anatoly Antonov. In his report to the Hawaiian Minister of Foreign Relations,
H.E. Peter Umialiloa Sai, dated October 12, 2018, Dr. Schweizer wrote, “In his concluding
remarks Dr. Orlov, who incidentally referred to the military installations at Barking Sands,
mentioned as an aside and in a relatively low voice: ‘The annexation of Hawai‘i by the US was of
course illegal and everyone knows it.’”

United Nations Independent Expert Dr. Alfred deZayas on Hawai‘i

This educational exposure also prompted United Nations Independent Expert, Dr. Alfred M.
deZayas, to send a communication, dated February 25, 2018, to members of the State of Hawai‘i
Judiciary stating that the Hawaiian Kingdom is an occupied State and that the 1907 Hague
Convention, IV, and the 1949 Geneva Convention, IV, must be complied with.182 In that
communication, Dr. deZayas stated:

As a professor of international law, the former Secretary of the UN Human Rights

Committee, co-author of book, The United Nations Human Rights Committee Case Law
1977-2008, and currently serving as the UN Independent Expert on the promotion of a
democratic and equitable international order, I have come to understand that the lawful
political status of the Hawaiian Islands is that of a sovereign nation-state in continuity; but
a nation-state that is under a strange form of occupation by the United States resulting from
an illegal military occupation and a fraudulent annexation. As such, international laws (the
Hague and Geneva Conventions) require that governance and legal matters within the
occupied territory of the Hawaiian Islands must be administered by the application of the
laws of the occupied state (in this case, the Hawaiian Kingdom), not the domestic laws of
the occupier (the United States).

The Independent Expert clearly stated the application of “the Hague and Geneva Conventions”
requires the administration of Hawaiian Kingdom law, not United States law, in Hawaiian
territory. The United States’ noncompliance to international humanitarian law has created the
façade of an incorporated territory of the United States called the State of Hawai‘i. The State of
Hawai‘i is a de facto proxy for the United States and maintains effective control over Hawaiian
territory. The War Report 2017 refers to such entities as an armed non-state actor (ANSA)
“operating in another state when that support is so significant that the foreign state is deemed to
have ‘overall control’ over the actions of the ANSA.”183

182
Letter from U.N. Independent Expert Dr. deZayas to Members of the Judiciary of the State of Hawai‘i (Feb. 25,
2018) (online at https://hawaiiankingdom.org/pdf/Dr_deZayas_Memo_2_25_2018.pdf).
183
The War Report 2017, 22.

36
Furthermore, from 1893 to 1898, the Hawaiian Kingdom was occupied by an American puppet of
insurgents. There is no treaty of peace between the Hawaiian Kingdom and the United States
except for the unilateral annexation of the Hawaiian Islands by a joint resolution of Congress.
Whether by proxy or not, the United States is the occupying State and “as the right of an occupant
in occupied territory is merely a right of administration, he may [not] annex it, while the war
continues.”184

The ICRC Commentary on Article 47 also emphasize, “It will be well to note that the reference to
annexation in this Article cannot be considered as implying recognition of this manner of acquiring
sovereignty.”185 The “Occupying Power cannot…annex the occupied territory, even if it occupies
the whole of the territory concerned. A decision on that point can only be reached in a peace treaty.
This is a universally-recognized rule and is endorsed by jurists and confirmed by numerous rulings
of international and national courts.”186 Therefore, according to the ICRC, “an Occupying Power
continues to be bound to apply the Convention as a whole even when, in disregard of the rules of
international law, it claims to have annexed all or part of an occupied territory.”187 As there is no
treaty of peace between the Hawaiian Kingdom and the United States, this international armed
conflict continues to date.

To understand what the UN Independent Expert called a “fraudulent annexation,” attention is

drawn to the floor of the United States Senate on July 4, 1898, where Senator William Allen of
Nebraska stated:

“The Constitution and the statutes are territorial in their operation; that is, they can not have
any binding force or operation beyond the territorial limits of the government in which they
are promulgated. In other words, the Constitution and statutes can not reach across the
territorial boundaries of the United States into the territorial domain of another government
and affect that government or persons or property therein.”188

Two years later, on February 28, 1900, during a debate on senate bill no. 222 that proposed the
establishment of a U.S. government to be called the Territory of Hawai‘i, Senator Allen reiterated,
“I utterly repudiate the power of Congress to annex the Hawaiian Islands by a joint resolution such
as passed the Senate. It is ipso facto null and void.”189 In response, Senator John Spooner of
Wisconsin, a constitutional lawyer, dismissively remarked, “that is a political question, not subject
to review by the courts.”190 Senator Spooner explained, “The Hawaiian Islands were annexed to

184
Oppenheim, International Law, vol. II, 6th ed., 237 (1921).
185
International Committee of Red Cross, Commentary: IV Geneva Convention Relative to the Protection of
Civilian Persons in Time of War 276 (1958).
186
Id., 275.
187
Id., 276.
188
31 Cong. Rec. 6635 (1898).
189
33 Cong. Rec. 2391 (1900).
190
Id.

37
the United States by a joint resolution passed by Congress. I reassert…that that was a political
question and it will never be reviewed by the Supreme Court or any other judicial tribunal.”191
Senator Spooner never argued that congressional laws have extra-territorial effect. Instead, he said
this issue would never see the light of day because United States courts would not review it due to
the political question doctrine. This exchange between the two Senators is troubling, but it
acknowledges the limitation of congressional laws and the political means by which to conceal an
internationally wrongful act. The Territory of Hawai‘i is the predecessor of the State of Hawai‘i.

It would take another ninety years before the U.S. Department of Justice addressed this issue. In a
1988 legal opinion, the Office of Legal Counsel examined the purported annexation of the
Hawaiian Islands by a congressional joint resolution. Douglas Kmiec, Acting Assistant Attorney
General, authored this opinion for Abraham D. Sofaer, legal advisor to the U.S. Department of
State. After covering the limitation of congressional authority, which, in effect, confirmed the
statements made by Senator Allen, Assistant Attorney General Kmiec concluded:

“Notwithstanding 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. … 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.”192

State of Hawai‘i Official Reports War Crimes

On August 21, 2018, State of Hawai‘i County of Maui Councilmember Jennifer Ruggles (“Ms.
Ruggles”) requested a legal opinion from the government’s attorney whether she has incurred
criminal liability for committing war crimes.193 In her letter she requested “the Office of
Corporation Counsel to assure her that she is not incurring criminal liability under international
humanitarian law and United States Federal law as a Council member for:

1. Participating in legislation of the Hawai‘i County Council that would appear to be in

violation of Article 43 of the Hague Regulations and Article 64 of the Geneva
Convention which require that the laws of the Hawaiian Kingdom be administered
instead of the laws of the United States;

191
Id.
192
Douglas W. Kmiec, Legal Issues Raised by Proposed Presidential Proclamation To Extend the Territorial Sea,
12 Opinions of the Office of Legal Counsel 238, 252 (1988) (online at
https://hawaiiankingdom.org/pdf/1988_Opinion_OLC.pdf).
193
Letter from Stephen Laudig, attorney for Jennifer Ruggles, Hawai‘i County Council member, State of Hawai‘i, to
Hawai‘i County Corporation Counsel Joe Kamelamela (Aug. 21, 2018) (online at https://jenruggles.com/wp-
content/uploads/Stephen-Laudigs-Letter-to-Corporation-Counsel-8-21-18.pdf).

38
 2. Being complicit in the collection of taxes, or fines, from protected persons that stem
from legislation enacted by the Hawai‘i County Council, appear to be in violation of
Articles 28 and 47 of the Hague Regulations and Article 33 of the Geneva Convention
which prohibit pillaging;
3. Being complicit in the foreclosures of properties of protected persons for delinquent
property taxes that stem from legislation enacted by the Hawai‘i County Council,
which would appear to violate Articles 28 and 47 of the Hague Regulations and Article
33 of the Geneva Convention which prohibit pillaging, as well as in violation of Article
46 of the Hague Regulations and Articles 50 and 53 of the Geneva Convention where
private property is not to be confiscated; and
4. Being complicit in the prosecution of protected persons for committing misdemeanors,
or felonies, that stem from legislation enacted by the Hawai‘i County Council, which
would appear to violate Article 147 of the Geneva Convention where protected persons
cannot be unlawfully confined, or denied a fair and regular trial by a tribunal with
competent jurisdiction.

In his letter to Ms. Ruggles dated August 22, 2018, Corporation Counsel Joe Kamelamela stated:

At the Council Committee meeting held on Monday, August 21, 2018 at the West Hawai‘i
Civic Center, you announced that you “will be refraining from participating in the
proposing and enacting of legislation” until county lawyers will assure you in writing that
you will not incur “criminal liability under international humanitarian law and U.S. law.

In response to your inquiry, we opine that you will not incur any criminal liability under
state, federal and international law. See Article VI, Constitution of the United States of
America (international law cannot violate federal law).194

According to Ms. Ruggles, Corporation Counsel’s response was unacceptable. In a letter, by her
attorney, dated August 28, 2018, it concluded:

Until you provide Council member Ruggles with a proper legal opinion responding to the
statement of facts in that she has not incurred criminal liability for violating the 1907 Hague
Regulations and the 1949 Geneva Convention, IV, I have advised my client that she must
continue to refrain from legislating. For your reference, I am attaching the aforementioned
legal opinions by Deputy Assistant Attorney General John Yoo and your office.195

194
Letter from Hawai‘i County Corporation Counsel Joe Kamelamela to Jennifer Ruggles, Hawai‘i County Council
member, State of Hawai‘i, to (Aug. 22, 2018) (online at http://jenruggles.com/wp-content/uploads/Kamelamela-
Response-Letter-2018-08-22.pdf).
195
Letter from Stephen Laudig, attorney for Jennifer Ruggles, Hawai‘i County Council member, State of Hawai‘i, to
Hawai‘i County Corporation Counsel Joe Kamelamela (Aug. 28, 2018) (online at http://jenruggles.com/wp-
content/uploads/Laudig_Ltr_to_Corp_Counsel_8.28.2018-.pdf).

39
Corporation Counsel refused to respond to this letter, which prompted Ms. Ruggles to become a
whistle blower. She began sending notices to perpetrators of war crimes throughout the State of
Hawai‘i.

Under United States federal law, war crimes are defined as violations of the 1907 Hague
Regulations and the 1949 Geneva Conventions—18 U.S.C. §2441. Her story was broadcasted on
television by KGMB news,196 Big Island Video News,197 and published by the British news outlet
The Guardian.198 Ms. Ruggles reported war crimes committed by the Queen’s Hospital, in
violation of 18 U.S.C. §2441 and §1091, and war crimes committed by thirty-two Circuit Judges
of the State of Hawai‘i, in violation of 18 U.S.C. §2441.199 She also reported additional war crimes
of pillaging committed by State of Hawai‘i tax collectors, in violation of §2441,200 the war crime
of unlawful appropriation of property by the President of the United States and the Internal
Revenue Service, in violation of §2441,201 and the war crime of destruction of property by the
State of Hawai‘i on the summit of Mauna Kea, in violation of §2441.202

These actions taken by Ms. Ruggles prompted the International Committee of the National
Lawyers Guild to form the Hawaiian Kingdom Subcommittee.203 Established in 1937, the National
Lawyers Guild is equal in standing with the American Bar Association. According to the Guild’s
International Committee website:

The Hawaiian Kingdom Subcommittee provides legal support to the movement demanding
that the U.S., as the occupier, comply with international humanitarian and human rights
law within Hawaiian Kingdom territory, the occupied. This support includes organizing
delegations and working with the United Nations, the International Committee of the Red

196
KGMB News (Sep. 24, 2018) (online at https://www.youtube.com/watch?v=-YiXpiwVHr0).
197
Big Island Video News (Sep. 25, 2018) (online at http://www.bigislandvideonews.com/2018/09/25/video-jen-
ruggles-holds-community-meeting-on-war-crimes/).
198
Breena Kerr, Hawaii politician stops voting, claiming islands are ‘occupied sovereign country,’ The Guardian
(Nov. 30, 2018) (online at https://www.theguardian.com/us-news/2018/nov/29/hawaii-politician-jennifer-ruggles-
sovereign-country).
199
Letter from Jennifer Ruggles, Hawai‘i County Council member, State of Hawai‘i, to Sean Kaul, FBI Special
Agent in Charge (Oct. 11, 2018) (online at https://jenruggles.com/wp-
content/uploads/Reporting_to_FBI_10.11.18.pdf).
200
Letter from Jennifer Ruggles, Hawai‘i County Council member, State of Hawai‘i, to State of Hawai‘i officials
regarding unlawful collection of taxes (Nov. 15, 2018) (online at https://jenruggles.com/wp-content/uploads/Ltr-to-
State-of-HI-re-Taxes.pdf).
201
Letter from Jennifer Ruggles, Hawai‘i County Council member, State of Hawai‘i, to U.S. President Trump
regarding unlawful appropriation of property (Nov. 28, 2018) (online at https://jenruggles.com/wp-
content/uploads/Ltr_to_President_Trump.pdf).
202
Letter from Jennifer Ruggles, Hawai‘i County Council member, State of Hawai‘i, to State of Hawai‘i Governor
Ige and Supreme Court Justices regarding unlawful destruction of property on the summit of Mauna Kea (Dec. 3,
2018) (online at https://jenruggles.com/wp-content/uploads/Ltr-to-Gov.-and-Sup.-Ct.pdf).
203
NLG launches new Hawaiian Kingdom Subcommittee, NLG International Committee (online at
https://nlginternational.org/2019/04/nlg-launches-new-hawaiian-kingdom-subcommittee/).

40
 Cross, and NGOs addressing U.S. violations of international law and the rights of Hawaiian
nationals and other Protected Persons.204

Recognition De Facto of the Restored Hawaiian Government

In March of 2000, the United States government, through its Department of State (“State
Department”), explicitly recognized the Hawaiian government by exchange of notes verbales. This
recognition stemmed from Larsen v. Hawaiian Kingdom international arbitration proceedings.205
Notes verbales are official communications between governments of states and international
organizations.

Before the Larsen ad hoc tribunal was formed on June 9, 2000, Mr. Tjaco T. van den Hout,
Secretary General of the PCA, spoke with the author, as agent for the Hawaiian Kingdom, over
the telephone and recommended that the Hawaiian government provide an invitation to the United
States to join in the arbitration. The Hawaiian government consented, which resulted in a
conference call meeting on March 3, 2000 in Washington, D.C., between the author, Larsen’s
counsel, Mrs. Ninia Parks, and Mr. John Crook from the State Department. The meeting was
reduced to a formal note and mailed to Mr. Crook in his capacity as legal adviser to the State
Department, and a copy of the note was submitted by the Hawaiian government to the PCA
Registry for record that the United States was invited to join in the arbitral proceedings.206 The note
was signed off by the author as “Acting Minister of Interior and Agent for the Hawaiian Kingdom.”

Under international law, this note served as an offering instrument that contained the text of the
proposal.

“[T]he reason for our visit was the offer by the…Hawaiian Kingdom, by consent of the
Claimant [Mr. Larsen], by his attorney, Ms. Ninia Parks, for the United States Government
to join in the arbitral proceedings presently instituted under the auspices of the Permanent
Court of Arbitration at The Hague, Netherlands. … [T]he State Department should review
the package in detail and can get back to the Acting Council of Regency by phone for
continued dialogue. I gave you our office’s phone number…, of which you acknowledged.
I assured you that we did not need an immediate answer, but out of international courtesy
the offer is still open, notwithstanding arbitral proceedings already in motion. I also advised
you that Secretary-General van den Hout of the Permanent Court of Arbitration was aware
of our travel to Washington, D.C. and the offer to join in the arbitration. As I stated in our
conversation he requested that the dialogue be reduced to writing and filed with the

204
Hawaiian Kingdom Subcommittee, National Lawyers Guild International Committee (online at
https://nlginternational.org/hawaiian-kingdom-subcommittee/).
205
Larsen case, at 581. The notes verbales are part of the arbitral records at the Registry of the Permanent Court of
Arbitration.
206
A true and correct copy of the note (online at http://hawaiiankingdom.org/pdf/State_Dpt_Ltr_(3.3.2000).pdf).

41
 International Bureau of the Permanent Court of Arbitration for the record, and you
acknowledged.”

Thereafter, the PCA’s Deputy Secretary General, Mrs. Phyllis Hamilton, informed Sai, as agent
for the Hawaiian government, by telephone, that the United States, through its embassy in The
Hague, notified the PCA, by note verbale, that the United States would not accept the invitation to
join the arbitral proceedings. Instead, the United States, through its embassy in The Hague,
requested permission from the Hawaiian government to have access to the pleadings and records
of the case. The Hawaiian government consented to this request. Thus, the PCA, represented by
Deputy Secretary General Hamilton, served as an intermediary to secure an agreement between
the Hawaiian Kingdom and the United States.

Legally there is no difference between a formal note, a note verbale and a memorandum.
They are all communications which become legally operative upon the arrival at the
addressee. The legal effects depend on the substance of the note, which may relate to any
field of international relations.207

As a rule, the recipient of a note answers in the same form. However, an acknowledgment
of receipt or provisional answer can always be given in the shape of a note verbale, even
if the initial note was of a formal nature.208

The offer by the Secretary General to have the Hawaiian government provide the United States an
invitation to join in the arbitral proceedings, and the Hawaiian government’s acceptance of this
offer, constitutes an international agreement by exchange of notes verbales between the PCA and
the Hawaiian Kingdom. “[T]he growth of international organizations and the recognition of their
legal personality has resulted in agreements being concluded by an exchange of notes between
such organizations and states.”209

The United States’ request to have access of the arbitral records, in lieu of the invitation to join in
the arbitration, and the Hawaiian government’s consent to that request constitutes an international
agreement by exchange of notes verbales. According to Corten & Klein, “the exchange of two
notes verbales constituting an agreement satisfies the definition of the term ‘treaty’ as provided by
Article 2(1)(a) of the Vienna Convention.”210 Altogether, the exchange of notes verbales on this
subject matter, between the Hawaiian Kingdom, the PCA, and the United States of America,
constitutes a multilateral treaty of the de facto recognition of the restored Hawaiian government.

207
Johst Wilmanns, “Note,” in 9 Encyclopedia of Public International Law 287 (1986).
208
Id.
209
J.L. Weinstein, “Exchange of Notes,” 20 Brit. Y.B. Int’l L. 205, 207 (1952).
210
The Vienna Conventions on the Law of Treaties, A Commentary, Vol. I, Corten & Klein, eds. (2011), p. 261.

42
Moreover, the United States has entered into other treaties by exchange of notes verbales. In 1946,
the United States and Italy entered into a treaty by exchange of notes verbales at Rome regarding
an Agreement relating to internment of American military personnel in Italy.211 In 1949, the United
States and Italy entered into another treaty by exchange of notes verbales at Rome regarding an
Agreement between the United States of America and Italy, interpreting the agreement of August
14, 1947, respecting financial and economic relations.212 Both of these bi-lateral treaties remain in
force as of January 1, 2017.213

Since the United States’ de facto recognition, the following States and an international
organization have also provided de facto recognition of the Hawaiian government. On December
12, 2000, Rwanda recognized the Hawaiian government. This recognition occurred in a meeting
in Brussels, called by His Excellency Dr. Jacques Bihozagara, Ambassador for the Republic of
Rwanda assigned to Belgium, with the author, Agent for the Hawaiian Kingdom, the Minister of
Foreign Affairs, His Excellency Mr. Peter Umialiloa Sai, First Deputy Agent for the Hawaiian
Kingdom, and the Minister of Finance, Her Excellency Mrs. Kau‘i Sai-Dudoit, Third Deputy
Agent.214

On July 5, 2001, China, as President of the United Nations Security Council, recognized the
Hawaiian government when China accepted the Hawaiian government’s complaint submitted by
Sai, as agent for the Hawaiian Kingdom, in accordance with Article 35(2) of the United Nations
Charter. 215 Article 35(2) provides that a “State which is not a Member of the United Nations may
bring to the attention of the Security Council or of the General Assembly any dispute to which it
is a party if it accepts in advance, for the purpose of the dispute, the obligations of pacific
settlement provided in the present Charter.”

By exchange of notes, through email, Cuba also recognized the Hawaiian government when on
November 10, 2017, the Cuban government received the author, as Ambassador-at-large for the
Hawaiian Kingdom, at the Cuban embassy in The Hague, Netherlands.216 Also, by exchange of
notes, through email, the Universal Postal Union in Bern, Switzerland, recognized the Hawaiian
government.217 The Universal Postal Union is a specialized agency of the United Nations. The
Hawaiian Kingdom has been a member State of the Universal Postal Union since January 1, 1882.

211
61 Stat. 3750.
212
63 Stat. 2415.
213
United States Department of State, Treaties in Force: A List of Treaties and Other International Agreements of
the United States in Force on January 1, 2017, 218.
214
Sai, A Slippery Path, at 130-131.
215
David Keanu Sai, “American Occupation of the Hawaiian State: A Century Unchecked,” 1 Haw. J.L. & Pol. 74
(2004).
216
Email notes between the Hawaiian Ambassador-at-large and the Cuban Embassy in The Hague (Nov. 2017)
(online at http://hawaiiankingdom.org/pdf/Cuban_Embassy_Corresp.pdf).
217
Email notes with the Universal Postal Union (Feb. 2018) (online at
http://hawaiiankingdom.org/pdf/UPU_Communication.pdf).

43
Sai v. Trump—Petition for Writ of Mandamus

On June 25, 2019, the author filed, on behalf of the Council, an emergency petition for a writ of
mandamus against President Donald Trump with the United States District Court of the District of
Columbia.218 The petition sought an order from the Court to:

a. Grant immediate mandamus relief enjoining Respondent Trump from acting in

derogation of the [Hague Convention] IV, the [Geneva Convention] IV, international
humanitarian laws, and customary international laws;
b. Award Petitioner such preliminary injunctive and ancillary relief as may be necessary
to avert the likelihood of Protected Persons’ injuries during the pendency of this action
and to preserve the possibility of effective final relief, including, but not limited to,
temporary and preliminary injunctions; and
c. Enter a permanent injunction to prevent future violations of the HC IV, the GC IV,
international humanitarian laws, and customary international laws by Respondent
Trump.

The factual allegations of the petition were stated in paragraphs 79 through 205 under the
headings From a State of Peace to a State of War, The Duty of Neutrality by Third
States, Obligation of the United States to Administer Hawaiian Kingdom laws, Denationalization
through Americanization, The State of Hawai‘i is a Private Armed Force, The Restoration of the
Hawaiian Kingdom Government, Recognition De Facto of the Restored Hawaiian
Government, War Crimes: 1907 Hague Convention, IV, and War Crimes: 1949 Geneva
Convention, IV.

On September 11, 2018, Judge Chutkan issued an order, sua sponte, dismissing the case as a
political question.219 On the very same day the U.S. Attorney for the District of Columbia filed a
“Motion for Extension of Time to Answer in light of the order dismissing this action,” but it was
denied by minute order.220 Judge Chutkan stated, “Because Sai’s claims involve a political
question, this court is without jurisdiction to review his claims and the court will therefore
DISMISS the Petition.”

When the federal court declined to hear the case because of the political question doctrine it wasn’t
because the case was frivolous but rather “refers to the idea that an issue is so politically charged
that federal courts, which are typically viewed as the apolitical branch of government, should not

218
Sai v. Trump, Petition for Writ of Mandamus, case no. 1:18-cv-01500 (June 25, 2001) (online at
https://hawaiiankingdom.org/pdf/Petition_for_Mandamus.pdf).
219
Sai v. Trump, Order (Sep. 11, 2018) (online at: https://hawaiiankingdom.org/pdf/Order_Mandamus.pdf).
220
Sai v. Trump, Minute Order (Sep. 11, 2018) (online at
https://hawaiiankingdom.org/pdf/Minute_Order_Mandamus.pdf).

44
hear the issue.”221 If the petition was without merit it would have been dismissed for “failure to
state a claim upon which relief can be granted” under rule 12(b)(6) of the Federal Rules of Civil
Procedure. Political questions, however, are dismissed under rule 12(1) regarding subject matter
jurisdiction.

In 2008, the same United States District Court for the District of Columbia, dismissed a case
concerning Taiwan as a political question under Rule 12(b)(1) in Lin v. United States.222 The
federal court in its order stated that it “must accept as true all factual allegations contained in the
complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1).” When this case went
on appeal, the D.C. Appellate Court underlined the modern doctrine of the political question, “We
do not disagree with Appellants’ assertion that we could resolve this case through treaty analysis
and statutory construction; we merely decline to do so as this case presents a political question
which strips us of jurisdiction to undertake that otherwise familiar task.”223

What is significant in the Hawaiian Kingdom case is that the federal court accepted the allegations
of facts in the petition as true but that subject matter jurisdiction lies in another branch of the
United States government that being the executive branch. From an international law perspective,
the facts of the prolonged occupation are not in dispute and the petition sought to address the
violations of the rights of protected persons under international humanitarian law.

The dismissal of the petition under the political question doctrine would satisfy the requirement to
exhaust local remedies, which is a “‘principle of general international law’ supported by judicial
decisions, State practice, treaties and the writings of jurists.”224 Under this principle, the
International Court of Justice in the ELSI case stated that “for an international claim to be
admissible, it is sufficient if the essence of the claim has been brought before the competent
tribunals and pursued as far as permitted by local law and procedures, and without success.”225 In
the Hawaiian situation, this strict requirement must be balanced by the exception to the rule where
the local remedies are “obviously futile,” “offer no reasonable prospect of success,” or “provide
no reasonable possibility of effective redress.”226

Royal Commission of Inquiry

On January 19, 2017, the Hawaiian government and Lance Larsen entered into a Special
Agreement to form an international commission of inquiry. As proposed by the Tribunal, both

221
Cornell Law School, Legal Information Institute, Political Question Doctrine (online at
https://www.law.cornell.edu/wex/political_question_doctrine).
222
Lin v. United States, 539 F. Supp. 2d 173 (D.D.S. 2008)
223
Lin v. United States, 561 F.3d 506 (2009).
224
Text of the Draft Articles on Diplomatic Protection (2006) 2 Y.B. Int’l L. Comm’n 24, U.N. Doc.
A/CN.4/SER.A/2006/Add.1 (Part 2), art. 14, cmt. 1.
225
Elettronica Sicula S.p.A. (ELSI), Judgment, I.C.J. Reports 1989, p. 46, para. 59.
226
Id., art. 15, cmt. 2.

45
Parties agreed to the rules provided under Part III—International Commissions of Inquiry (Articles
9-36), 1907 HC I. According to Article III of the Special Agreement:

The Commission is requested to determine: First, what is the function and role of the
Government of the Hawaiian Kingdom in accordance with the basic norms and framework
of international humanitarian law; Second, what are the duties and obligations of the
Government of the Hawaiian Kingdom toward Lance Paul Larsen, and, by extension,
toward all Hawaiian subjects domiciled in Hawaiian territory and abroad in accordance
with the basic norms and framework of international humanitarian law; and, Third, what
are the duties and obligations of the Government of the Hawaiian Kingdom toward
Protected Persons who are domiciled in Hawaiian territory and those Protected Persons
who are transient in accordance with the basic norms and framework of international
humanitarian law.227

Since humanitarian law is a set of rules that seek to limit the effects of war on persons, who are
not participating in the armed conflict, such as civilians of an occupied State, the Larsen case and
the fact-finding proceedings must stem from an actual state of war—a war not in theory but a war
in fact. More importantly, the application of the principle of intertemporal law is critical to
understanding the arbitral dispute between Larsen and the Hawaiian Kingdom. That dispute
stemmed from an illegal state of war with the United States that began in 1893. Judge Huber
famously stated that “a juridical fact must be appreciated in the light of the law contemporary with
it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled.”228

In what appears to be obstruction by the PCA’s Secretary General, a complaint was filed in 2017
by the Hawaiian government with one of the member States of the PCA’s Administrative Council
at its embassy in The Hague, Netherlands.229 The name of the State is being kept confidential at its
request.

The unfortunate circumstances of the PCA proceedings stemming from the Larsen case prompted
the Council to exercise its prerogative of the Crown and established a Royal Commission of
Inquiry (“Commission”) on April 17, 2019. Its mandate is to investigate the consequences of the
prolonged occupation. The Commission was established by “virtue of the prerogative of the Crown
provisionally vested in [the Council of Regency] in accordance with Article 33 of the 1864
Constitution, and to ensure a full and thorough investigation into the violations of international
humanitarian law and human rights within the territorial jurisdiction of the Hawaiian Kingdom.”

227
Special Agreement (Jan. 19, 2017) (online at
http://hawaiiankingdom.org/pdf/ICI_Agmt_1_19_17(amended).pdf).
228
Island of Palmas arbitration case (Netherlands and the United States of America), R.I.A.A., vol. II, 829 (1949).
229
A true and correct copy of the complaint (online at
http://hawaiiankingdom.org/pdf/Hawaiian_Complaint_PCA_Admin_Council.pdf).

46
The author has been designated as Head of the Commission. Pursuant to Article 3—Composition
of the Royal Commission, the author has been authorized to seek “recognized experts in various
fields.” According to Article 1:

2. The purpose of the Royal Commission shall be to investigate the consequences of the
United States’ belligerent occupation, including with regard to international law,
humanitarian law and human rights, and the allegations of war crimes committed in that
context. The geographical scope and time span of the investigation will be sufficiently
broad and be determined by the head of the Royal Commission.

3. The results of the investigation will be presented to the Council of Regency, the
Contracting Powers of the 1907 Hague Convention, IV, respecting the Laws and Customs
of War on Land, the Contracting Powers of the 1949 Geneva Convention, IV, relative to
the Protection of Civilian Persons in Time of War, the Contracting Powers of the 2002
Rome Statute, the United Nations, the International Committee of the Red Cross, and the
National Lawyers Guild in the form of a report.

The Commission has been convened with experts in international law from Europe in the fields
State continuity, humanitarian law, human rights law and self-determination of a people of an
existing State under prolonged occupation.

47
CONTINUITY OF THE HAWAIIAN KINGDOM

by Dr. Matthew Craven

Reader in International Law

SOAS, University of London

Being a portion of a
Legal Brief provided for the
acting Council of Regency

http://www.HawaiianKingdom.org

July 12, 2002

A. THE CONTINUITY OF THE HAWAIIAN KINGDOM

2. GENERAL CONSIDERATIONS

2.1 The issue of State continuity usually arises in cases in which some element of the
State has undergone some significant transformation (such as changes in its territorial
compass or in its form of government). A claim as to state continuity is essentially a
claim as to the continued independent existence of a State for purposes of
international law in spite of such changes. It is essentially predicated, in that regard,
upon an insistence that the State’s legal identity has remained intact. If the State
concerned retains its identity it can be considered to ‘continue’ and vice versa.
Discontinuity, by contrast, supposes that the identity of the State has been lost or
fundamentally altered such that it has ceased to exist as an independent state and that,
as a consequence, rights of sovereignty in relation to territory and population have
been assumed by another ‘successor’ state (to the extent provided by rules of
succession). At its heart, therefore, the issue of State continuity is concerned with the
parameters of a state’s existence and demise (or extinction) in international law.

2.2 The implications of continuity in case of Hawai’i are several:

a) That authority exercised by US over Hawai’i is not one of sovereignty i.e.

that the US has no legally protected ‘right’ to exercise that control and that
it has no original claim to the territory of Hawai’i or right to obedience on
the part of the Hawaiian population. Furthermore, the extension of US
laws to Hawai’i, apart from those that may be justified by reference to the
law of (belligerent) occupation would be contrary to the terms of
international law.

b) That the Hawaiian people retain a right to self-determination in a manner

prescribed by general international law. Such a right would entail, at the
first instance, the removal of all attributes of foreign occupation, and a
restoration of the sovereign rights of the dispossessed government.

c) That the treaties of the Hawaiian Kingdom remain in force as regards

other States in the name of the Kingdom (as opposed to the US as a
successor State) except as may be affected by the principles rebus sic
stantibus or impossibility of performance.

d) That the Hawaiian Kingdom retains a right to all State property including
that held in the territory of third states, and is liable for the debts of the
Hawaiian kingdom incurred prior to its occupation.

2.3 Bearing in mind the consequences elucidated in c) and d) above, it might be said that
a claim of state continuity on the part of Hawai’i has to be opposed as against a claim
by the US as to its succession. It is apparent, however, that this opposition is not a
strict one. Principles of succession may operate even in cases where continuity is not
called into question, such as with the cession of a portion of territory from one state to

2
 another, or occasionally in case of unification. Continuity and succession are, in
other words, not always mutually exclusive but might operate in tandem. It is
evident, furthermore, that the principles of continuity and succession may not actually
differ a great deal in terms of their effect. Whilst State continuity certainly denies the
applicability of principles of succession and holds otherwise that rights and
obligations remain intact save insofar as they may be affected by the principles rebus
sic stantibus or impossibility of performance, there is room in theory at least for a
principle of universal succession to operate such as to produce exactly the same result
(under the theory of universal succession).1 The continuity of legal rights and
obligations, in other words, does not necessarily suppose the continuity of the State as
a distinct person in international law, as it is equally consistent with discontinuity
followed by universal succession. Even if such a thesis remains largely theoretical, it
is apparent that a distinction has to be maintained between continuity of personality
on the one hand, and continuity of specific legal rights and obligations on the other.
The maintenance in force of a treaty, for example, in relation to a particular territory
may be evidence of State continuity, but it is far from determinative in itself.

2.4 Even if it is relatively clear as to when States may be said to come into being for
purposes of international law (in many cases predicated upon recognition or
admission into the United Nations),2 the converse is far from being the case.3 Beyond
the theoretical circumstance in which a body politic has dissolved (for example by
submergence of the territory or the dispersal of the population), it is apparent that all
cases of putative extinction will arise in cases where certain changes of a material
nature have occurred – such as a change in government and change in the territorial
configuration of the State. The difficulty, however, is in determining when such
changes are merely incidental, leaving intact the identity of the state, and when they
are to be regarded as fundamental going to the heart of that identity.4 The problem, in
part, is the lack of any institution by which such an event may be marked:
governments do not generally withdraw recognition even if circumstances might so
warrant,5 and there is no mechanism by which membership in international
organisations may be terminated by reason of extinction. It is evident, moreover, that
states are complex political communities possessing various attributes of an abstract
nature which vary in space as well as time, and, as such, determining the point at
which changes in those attributes are such as to affect the State’s identity will
inevitably call for very fine distinctions.

1
Cf. article 34 Vienna Convention on State Succession in Respect of Treaties (1978).
2
See on this point Crawford J., The Creation of States in International Law (1979); Dugard J.,
Recognition and the United Nations (1987).
3
Ibid, p.417.
4
See generally, Marek K., The Identity and Continuity of States in Public International Law (2nd ed.
1968). For early recognition of this principle see Phillimore P., Commentaries upon International Law
(1879) p. 202.
5
See, Guggenheim P., Traité de droit international public (1953) p. 194. Lauterpacht notes that
‘[W]ithdrawal of recognition from a State is often obscured by the fact that, having regard to the
circumstances, it does not take place through an express declaration announcing the withdrawal but through
the act of recognition, express or implied, of the new authority.’ Lauterpacht H., Recognition in
International Law, (1947) pp. 350-351.
3
2.5 It is generally held, nevertheless, that there exist several uncontroversial principles
that have some bearing upon the issue of continuity. These are essentially threefold,
all of which assume an essentially negative form.6 First that the continuity of the
State is not affected by changes in government even if of a revolutionary nature.7
Secondly, that continuity is not affected by territorial acquisition or loss,8 and finally
that it is not affected by belligerent occupation (understood in its technical sense).9
Each of these principles reflects upon one of the key incidents of statehood –
territory, government and independence – making clear that the issue of continuity is
essentially one concerned with the existence of States: unless one or more of the key

6
Further principles have also been suggested, such as: i) the state does not cease to exist by reason
of its entry into a personal union, Pradier-Fodéré, Traité de droit international public Européen et
Americain (1885) s.148, p.253; ii) that the state does not expire by reason of becoming economically or
politically weak, ibid, s. 148, p.254; iii) that the state does not cease to exist by reason of changes in its
population, ibid p. 252; iv) that the state is not affected by changes in the social or economic system,
Verzijl, International Law in Historical Perspective, p. 118; v) that the State is not affected by being
reduced to a State of semi-sovereignty, Phillimore, supra, n. 4, p. 202. According to Vattel, the key to
sovereignty was ‘internal independence and sovereign authority’ (Vattel E., The Law of Nations or the
Principles of Natural Law (1758, trans Fenwick C., 1916) Bk.1, s.8)- if a state maintained these, it would
not lose its sovereignty by the conclusion of unequal treaties or tributary agreements or the payment of
homage. Sovereign states could be subject to the same prince and yet remain sovereign e.g Prussia and
Neufchatel (ibid, Bk.1, s.9). The formation of confederative republic of states did not destroy sovereignty
because ‘the obligation to fulfill agreements one has voluntarily made does not detract from one's liberty
and independence’ (ibid, bk.1, s.10) e.g. the United Provinces of Holland and the members of the Swiss
Confederation.
7
For early versions of this principle see, Grotius, De Iure Belli ac Pacis Bk. II, c. xvi, p. 418. See
also, Pufendorf S., De Jure Naturae et Gentium Libri Octo (1688, trans Oldfather C. and Oldfather W.,
1934) B. VIII, c. xii, s.1, p. 1360; Rivier, Principes du Droit des Gens, (1896) I, p. 62; De Martens F.,
Traité de Droit International (1883) 362; Westlake J., International Law (1904) I, 58; Wright Q., ‘The
Status of Germany and the Peace Proclamation’, 46 A.J.I.L. (1952) 299, p. 307; McNair A., ‘Aspects of
State Sovereignty’ B.Y.I.L. (1949) p. 8. Jennings and Watts (Oppenheim’s Inernational Law (9th ed.
1996), p. 146) declare that:
‘Mere territorial changes, whether by increase or by dimunution, do not, so long as the
identity of the State is preserved, affect the continuity of its existence or the obligations
of its treaties.... Changes in the government or the internal polity of a State do not as a
rule affect its position in international law. A monarchy may be transformed into a
republic, or a republic into a monarchy; absolute principles may be substituted for
constitutional, or the reverse; but, though the government changes, the nation remains,
with rights and obligations unimpaired’.
See also, US v. Curtiss Wright Export Corp. et al 299 US (1936) 304, p. 316 (J. Sutherland):
‘Rulers come and go; governments end and forms of government change; but sovereignty survives.’.
8
Westlake, supra, n. 7, p. 59; Pradier-Fodéré, supra, n. 6, s. 148, p. 252; Hall W., A Treatise on
International Law (4th ed. 1895) p. 23; Phillimore, supra, n. 4, I, pp. 202-3; Rivier, supra, n. 7, I, pp. 63-4;
Marek, supra, n. 4, pp. 15-24 Article 26 Harvard Research Draft Convention on the Law of Treaties 1935,
29 AJIL (1935) Supp. 655. See also, Katz and Klump v. Yugoslavia [1925-1926] A. D. 3 (No. 24);
Ottoman Debt Arbitration [1925-26] A. D. 3; Roselius and Co. v. Dr Karsten and the Turkish Republic
intervening, [1925-6] A. D. (No. 26); In re Ungarishche kriegsprodukien Aktiengesellschaft, [1919-22]
A.D. (No. 45); Lazard Brothers and Co v. Midland Bank, [1931-32] A.D. (No. 69). For State practice see
e.g. Great Britain remained the same despite the loss of the American Colonies; France, after the loss of
territory in 1814-15 and 1871; Austria after the cession of Lombardy in 1859 and Venice in 1866; Prussia
after the Franco-Prussian Peace Treaty at Tilsit, 1807. See generally, Moore, J., A Digest of International
Law, (1906), p. 248.
9
See below, paras. .
4
 constituents of statehood are entirely and permanently lost, State identity will be
retained. Their negative formulation, furthermore, implies that there exists a general
presumption of continuity.10 As Hall was to express the point, a State retains its
identity

‘so long as the corporate person undergoes no change which essentially modifies it from
the point of view of its international relations, and with reference to them it is evident that
no change is essential which leaves untouched the capacity of the state to give effect to its
general legal obligations or to carry out its special contracts.’11

The only exception to this general principle, perhaps, is to be found in case of

multiple changes of a less than total nature, such as where a revolutionary change in
government is accompanied by a broad change in the territorial delimitation of the
State.12

2.6 If one were to speak about a presumption of continuity, one 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. It might be objected that formally
speaking, the survival or otherwise of a State should be regarded as independent of
the legitimacy of any claims to its territory on the part of other States. It is commonly
recognised that a State does not cease to be such merely in virtue of the existence of
legitimate claims over part or parts of its territory. Nevertheless, where those claims
comprise the entirety of the territory of the State, as they do in case of Hawai’i, and
when they are accompanied by effective occupation to the exclusion of the claimant,
it is difficult, if not impossible, to separate the two questions. The survival of the
Hawaiian Kingdom is, it seems, premised upon the legal ineffectiveness of present or
past US claims to sovereignty over the Islands.

2.7 In light of such considerations any claim to State continuity will be dependent upon
the establishment of two legal facts: first that the State in question existed as a
recognised entity for purposes of international law at some relevant point in history;
and secondly that intervening events have not been such as to deprive it of that status.
It should be made very clear, however, that the issue is not simply one of ‘observable’
or ‘tangible facts’, but more specifically of ‘legally relevant facts’. It is not a case, in
other words, simply of observing how power or control has been exercised in relation
to persons or territory, but of determining the scope of ‘authority’ (understood as ‘a
legal entitlement to exercise power and control’). Authority differs from mere control
by not only being essentially rule governed, but also in virtue of the fact that it is not
always entirely dependent upon the exercise of that control. As Arbitrator Huber
noted in the Island of Palmas Case:

10
Crawford points out that ‘the presumption – in practice a strong one – is in favour of the
continuance, and against the extinction, of an established state’, Crawford, supra, n. 2, p. 417.
11
Hall, supra, n. 8, p. 22.
12
See e.g. Marek, supra, n. 4.
5
 ‘Manifestations of sovereignty assume… different forms according to conditions of time
and place. Although continuous in principle, sovereignty cannot be exercised in fact at
every moment on every point of a territory. The intermittence and discontinuity
compatible with the maintenance of the right necessarily differ according as inhabited or
uninhabited regions are involved, or regions enclosed within territories in which
sovereignty is incontestably displayed or again regions accessible from, for instance, the
high seas.’13

Thus, whilst ‘the continuous and peaceful display of territorial sovereignty’ remains
an important measure for determining entitlements in cases where title is disputed (or
where ‘no conventional line of sufficient topographical precision exists’), it is not
always an indispensable prerequisite for legal title. This has become all the more
apparent since the prohibition on the annexation of territory became firmly implanted
in international law, and with it the acceptance that certain factual situations will not
be accorded legal recognition: ex inuria ius non oritur.

3. THE STATUS OF THE HAWAIIAN KINGDOM AS A SUBJECT OF INTERNATIONAL LAW

3.1 Whilst the Montevideo critieria14 (or versions of) are now regarded as the definitive
determinants of statehood, the criteria governing the ‘creation’ of states in
international law in the 19th Century were somewhat less clear.15 The rise of
positivism and its rejection of the natural law leanings of early commentators (such as
Grotius and Pufendorf) led many to posit international law less in terms of a
‘universal’ law of nations and more in terms of an international public law of
European (and North American) States.16 According to this view, international law
was gradually extended to other portions of the globe primarily in virtue of
imperialist ambition and colonial practice - much of the remainder was regarded as
simply beyond the purview of international law and frequently as a result of the
application of a highly suspect ‘standard of civilisation’. It was not the case,
therefore, that all territories governed in a stable and effective manner would
necessarily be regarded as subjects of international law and much would apparently
depend upon the formal act of recognition, which signalled their ‘admittance into the
family of nations’.17 Thus, on the one hand commentators frequently provided
13
Island of Palmas Case (Netherlands v. United States) 2 R.I.A.A. 829.
14
Montevideo Convention on the Rights and Duties of States, Dec. 26th 1933, article 1:
‘The State as a person of international law should possess the following qualifications: (a) a
permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations
with other States.
15 th
Doctrine towards the end of the 19 Century began to articulate those criteria. Rivier, for
example, described the ‘essential elements of the state’ as being evidenced by ‘an independent community,
organised in a permanent manner on a certain territory’ (Rivier, supra, n. 7). Hall similarly speaks about
the ‘marks of an independent State are, that the community constituting it is permanently established for a
political end, that it possesses a defined territory, and that it is independent of external control.’ Supra, n. 8,
p. 18.
16
See e.g., Lawrence T., Principles of International Law (4th ed. 1913) p. 83; Pradier-Fodéré, Traité
de droit international public Européen et Americain (1885).
17
Hall comments, for example, that ‘although the right to be treated as a state is independent of
recognition, recognition is the necessary evidence that the right has been acquired. Hall, supra, n. 8, p. 87.
6
 impressively detailed ‘definitions’ of the State. Phillimore, for example, noted that
‘for all purposes of international law, a state… may be defined to be a people
permanently occupying a fixed territory (certam sedem), bound together by common
laws, habits and customs into one body politic, exercising, through the medium of an
organized government, independent sovereignty and control over all persons and
things within its boundaries, capable of making war and peace, and of entering into
all international relations with the other communities of the globe’.18 These
definitions, however, were not always intended to be prescriptive. Hall maintained,
for example, that whilst States were subjected to international law ‘from the
moment… at which they acquire the marks of a state’19 he later added the
qualification that States ‘outside European civilisation… must formally enter into the
circle of law-governed countries’.20 In such circumstances recognition was
apparently critical. Given the trend to which this gave rise, Oppenheim was later to
conclude in 1905, that ‘a State is and becomes an international person through
recognition only and exclusively’.21

3.2 Whatever the general position, there is little doubt that the Hawaiian Kingdom
fulfilled all requisite criteria. The Kingdom was established as an identifiable, and
independent, political community at some point in the early 19th Century (the precise
date at which this occurred is perhaps of little importance). During the next half-
Century it was formally recognised by a number of Western powers including
Belgium, Great Britain,22 France,23 and the United States,24 and received and
dispatched diplomatic agents to more than 15 States (including Austria, Belgium,
Denmark, France, Germany, Great Britain, Italy, Japan, Mexico, the Netherlands,
Portugal, Spain, Sweden and Norway and the United States). Secretary of State
Webster declared, for example, in a letter to Hawaiian agents in 1842 that:

‘the government of the Sandwich Islands ought to be respected; that no power ought
either to take possession of the Islands as a conquest or for purpose of colonization, and
that no power ought to seek for any undue control over the existing Government, or any
exclusive privileges or preferences with it in matters of commerce.’25

This point was reiterated subsequently by President Tyler in a message to Congress.26

In similar vein, Britain and France declared in a joint declaration in 1843 that they
considered ‘the Sandwich Islands as an independent State’ and vowed ‘never to take

18
Phillimore, supra, n. 4, I, p. 81.
19
Hall, supra, n. 8, p. 21.
20
Ibid, pp. 43-44.
21
International Law: A Treatise (1905) I, p. 109.
22
Declaration of Great Britain and France relative to the Independence of the Sandwich Islands,
London, Nov. 28th, 1843.
23
Ibid.
24
Message from the President of the United States respecting the trade and commerce of the United
States with the Sandwich Islands and with diplomatic intercourse with their Government, Dec. 19th 1842.
The Apology Resolution of 1993, however, maintains that the US ‘recognised the independence of the
Hawaiian Kingdom, extended full and complete diplomatic recognition to the Hawaiian Government ‘from
1826 until 1893’.
25
Letter of Dec. 19th 1842, Moore’s Digest, supra, n. 8, I, p. 476.
26
Message of President Tyler, Dec. 30th 1842, Moore’s Digest, supra, n. 8, I, pp. 476-7.
7
 possession, either directly or under the title of protectorate, or under any other form,
of any part of the territory of which they are composed’.27 When later in 1849,
French forces took possession of government property in Honolulu, Secretary of State
Webster sent a sharp missive to his French counterpart declaring the actions
‘incompatible with any just regard for the Hawaiian Government as an independent
State’ and calling upon France to ‘desist from measures incompatible with the
sovereignty and independence of the Hawaiian Islands’.28

3.3 In addition to establishing formal diplomatic relations with other States, the
Hawaiian Kingdom entered into an extensive range of treaty relations with those
States. Treaties were concluded with the United States (Dec. 23rd 1826, Dec. 20th
1849, May 4th 1870, Jan. 30th 1875, Sept. 11th 1883, and Dec. 6th 1884), Britain (Nov.
16th 1836 and July 10th 1851), the Free Cities of Bremen (Aug. 7th 1851) and Hamburg
(Jan. 8th 1848), France (July 17th 1839), Austria-Hungary (June 18th 1875), Belgium
(Oct. 4th 1862), Denmark (Oct. 19th 1846), Germany (March 25th 1879), France (Oct.
29th 1857), Japan (Aug. 19th 1871), Portugal (May 5th 1882), Italy (July 22nd 1863), the
Netherlands (Oct. 16th 1862), Russia (June 19th 1869), Samoa (March 20th 1887),
Switzerland (July 20th 1864), Spain (Oct. 29th 1863), and Sweden and Norway (July
1st 1852). The Hawaiian Kingdom, furthermore, became a full member of the
Universal Postal Union on January 1st 1882.

3.4 There is no doubt that, according to any relevant criteria (whether current or
historical), the Hawaiian Kingdom was regarded as an independent State under the
terms of international law for some significant period of time prior to 1893, the
moment of the first occupation of the Island(s) by American troops.29 Indeed, this
point was explicitly accepted in the Larsen v. Hawaiian Kingdom Arbitral Award.30

3.5 The consequences of Statehood at that time were several. States were deemed to be
sovereign not only in a descriptive sense, but were also regarded as being ‘entitled’ to
sovereignty. This entailed, amongst other things, the rights to free choice of
government, territorial inviolability, self-preservation, free development of natural
resources, of acquisition and of absolute jurisdiction over all persons and things
within the territory of the State.31 It was, however, admitted that intervention by
another state was permissible in certain prescribed circumstances such as for purposes
of self-preservation, for purposes of fulfilling legal engagements or of opposing
wrong-doing. Although intervention was not absolutely prohibited in this regard, it
was generally confined as regards the specified justifications. As Hall remarked,

27
For. Rel. 1894, App. II, p. 64.
28
Letter of June 19th 1851, For. Rel. 1894, App. II, p. 97.
29
For confirmation of this fact see e.g. Rivier, supra, n. 7, I, p. 54.
30
Larsen v. Hawaiian Kingdom, P.C.A. Arbitral Award, Feb. 5th 2001, para. 7.4.
31
Phillimore, supra, n. 4, I, p. 216.
8
 ‘The legality of an intervention must depend on the power of the intervening state to
show that its action is sanctioned by some principle which can, and in the particular case
does, take precedence of it.’32

A desire for simple aggrandisement of territory did not fall within these terms, and
intervention for purposes of supporting one party in a civil war was often regarded as
unlawful.33 In any case, the right of independence was regarded as so fundamental
that any action against it ‘must be looked upon with disfavour’.34

4. RECOGNISED MODES OF EXTINCTION

4.1 In light of the evident existence of Hawai’i as a sovereign State for some period of
time prior to 1898, it would seem that the issue of continuity turns upon the question
whether Hawai’i can be said to have subsequently ceased to exist according to the
terms of international law. Current international law recognises that a state may cease
to exist in one of two scenarios: by means of that State’s integration with another in
some form of union (such as the GDR’s accession to the FRG), or by its
dismemberment (such as in case of the Socialist Federal Republic of Yugoslavia or
Czechoslovakia).35 As will be seen, events in Hawai’i in 1898 are capable of being
construed in several ways, but it is evident that the most obvious characterisation was
one of annexation (whether by cession or conquest).

4.2 The general view today is that, whilst annexation was historically a permissible mode
of acquiring title to territory (as was ‘discovery’), it is now regarded as illegitimate
and primarily as a consequence of the general prohibition on the use of force as
expressed in article 2(4) of the UN Charter. This point has since been underscored in
various forms since 1945. General Assembly Resolution 2625 on Friendly Relations,
for example, provides that:

‘The territory of a State shall not be the object of acquisition by another State resulting
from the threat of use of force. No territorial acquisition resulting from the threat or use
of force shall be recognised as legal.’ 36

Practice also suggests that the creation of new States in violation of the principle is
illegitimate (illustrated by the general refusal to recognise the Turkish Republic of
Northern Cyprus), and that the legal personality of the State subjected to illegal
invasion and annexation continues despite an overriding lack of effectiveness37
(confirmed in case of the Iraqi invasion of Kuwait). Such a view is considered to
flow not only from the fact of illegality, and from the peremptory nature of the
32
Hall, supra, n. 8, p. 298.
33
See e.g. Lawrence, supra, n. 14, p. 134.
34
Hall, supra, n. 8, p. 298.
35
Jennings and Watts add one further category: when a State breaks up into parts all of which
become part of other states (such as Poland in 1795), supra, n. 8, p. 204.
36
Declaration of Principles of International Law, GA Resn. 2625. See Whiteman, Digest of
International Law (1965), V, pp. 874-965.
37
See, Crawford, supra, n. 2, p. 418.
9
 prohibition on the use of force, but is also expressive of the more general principle ex
iniuria ius non oritur.38 It is also clear that where annexation takes the form of a
treaty of cession, that treaty would be regarded as void if procured by the threat or use
of force in violation of the UN Charter.39

4.3 Even if the annexation of the Hawaiian Islands would be regarded as unlawful
according to accepted standards today, it does not necessarily follow that US claims
to sovereignty are unfounded. It is generally maintained that the legality of any act
should be determined in accordance with the law of the time when it was done, and
not by reference to law as it might have become at a later date. This principle finds
its expression in case of territorial title, as Arbitrator Huber pointed out in the Island
of Palmas case,40 in the doctrine of inter-temporal law. As far as Huber was
concerned, there were two elements to this doctrine – the first of which is relatively
uncontroversial, the second of which has attracted a certain amount of criticism. The
first, uncontroversial, element is simply that ‘a juridical fact must be appreciated in
light of the law contemporary with it, and not the law in force at the time when a
dispute in regard to it arises or falls to be settled’.41 In the present context, therefore,
the extension of US sovereignty over Hawai’i should be analysed in terms of the
terms of international law, as they existed at the relevant point(s) in time. This much
cannot be disputed. The second element outlined by Huber, however, is that,
notwithstanding the legitimate origins of an act creating title, the continued existence
of that title – its continued manifestation – ‘shall follow the conditions required by the
evolution of law’. The issue in consideration, here, is whether title based upon
historical discovery, or conquest, could itself survive irrespective of the fact that
neither is regarded as a legitimate mode of acquisition today. Whilst some have
regarded this element as a dangerous extension of the basic principle,42 its practical
effects are likely to be limited to those cases in which the State originally claiming
sovereignty has failed to reinforce that title by means of effective occupation
(acquisitive prescription). This was evident in case of the Island of Palmas, but is
unlikely to be so in other cases – particularly in light of Huber’s comment that
sovereignty will inevitably have its discontinuities. In any case, it is apparent that, as
Huber stressed, any defect in original title is capable of being remedied by means of a
continuous and peaceful exercise of territorial sovereignty and that original title,
whether defective or perfect, does not itself provide a definitive conclusion to the
question.

4.4 Turning then to the law as it existed at the critical date of 1898, it was generally held
that a State might cease to exist in one of three scenarios:

38
Such a principle has been recognised in e.g., Free Zones of Upper Savoy and the District of Gex
nd
(2 Phase), 1930, PCIJ, Series A, No. 24; South-Eastern Territory of Greenland, 1932, PCIJ, Series A/B,
No. 48, p. 285; Jurisdiction of the Courts of Danzig, 1933, PCIJ, Series B, No. 15, p. 26; Legal Status of
Eastern Greenland, 1933, PCIJ, Series A/B, No. 53, pp. 75, 95.
39
Article 52 Vienna Convention on the Law of Treaties 1969.
40
Island of Palmas (Netherlands v. United States) 2 R.I.A.A. (1928) 829
41
Ibid.
42
Jessup, 22 A.J.I.L. (1928) 735.
10
 a) By the destruction of its territory or by the extinction, dispersal or
emigration of its population (a theoretical disposition).

b) By the dissolution of the corpus of the State (cases include the dissolution of
the German Empire in 1805-6; the partition of the Pays-Bas in 1831 or of
the Canton of Bale in 1833).

c) By the State’s incorporation, union, or submission to another (cases include

the incorporation of Cracow into Austria in 1846; the annexation of Nice
and Savoy by France in 1860; the annexation of Hannover, Hesse, Nassau
and Schleswig-Holstein and Frankfurt into Prussia in 1886).43

4.5 Neither a) nor b) is applicable in the current scenario. In case of c) commentators not
infrequently distinguished between two processes – one of which involved a
voluntary act (i.e. union or incorporation), the other of which came about by non-
consensual means (i.e. conquest and submission followed by annexation).44 It is
evident that, as suggested above, annexation (or ‘conquest’) was regarded as a
legitimate mode of acquiring title to territory45 and it would seem to follow that in
case of total annexation (i.e. annexation of the entirety of the territory of a State) the
defeated State would cease to exist.

4.6 Although annexation was regarded as a legitimate means of acquiring territory, it was
recognised as taking a variety of forms.46 It was apparent, to begin with, that a
distinction was typically drawn between those cases in which the annexation was
implemented by Treaty of Peace, and those which resulted from an essentially
unilateral public declaration on the part of the annexing power. The former would be
governed by the particular terms of the treaty in question, and gave rise to a distinct
type of title.47 Since treaties were regarded as binding irrespective of the
circumstances surrounding their conclusion and irrespective of the presence or
absence of coercion,48 title acquired in virtue of a peace treaty was considered to be
essentially derivative (i.e. being transferred from one state to another).49 There was
little, in other words, to distinguish title acquired by means of a treaty of peace
backed by force, and a voluntary purchase of territory: in each case the extent of
rights enjoyed by the successor were determined by the agreement itself. In case of
conquest absent an agreed settlement, by contrast, title was thought to derive simply
from the fact of military subjugation and was complete ‘from the time [the conqueror]

43
See e.g. Pradier-Fodere, supra, n. 7, I, p. 251; Phillimore, supra, n. 4, I, p. 201; de Martens Traite
de Droit International (1883) I, pp. 367-370.
44
See e.g., Westlake J., ‘The Nature and Extent of the Title by Conquest’, 17 L.Q.R. (1901) 392.
45
Oppenheim ( supra, n. 31, I, p. 288) remarks that ‘[ a]s long as a Law of Nations has been in
existence, the states as well as the vast majority of writers have recognized subjugation as a mode of
acquiring territory’.
46
Halleck H., International Law (1861) p. 811; Wheaton H., Elements of International Law (1866,
th
8 ed.) II, c. iv, s. 165.
47
See e.g. Lawrence, supra, n. 14, p. 165-6 (‘Title by conquest arises only when no formal
international document transfers the territory to its new possessor’.)
48
Cf now article 52 Vienna Convention on the Law of Treaties 1969.
49
See e.g. Rivier, supra, n. 7, p. 176.
11
 proves his ability to maintain his sovereignty over his conquest, and manifests, by
some authoritative act… his intention to retain it as part of his own territory’.50 What
was required, in other words, was that the conflict be complete (acquisition of
sovereignty durante bello being clearly excluded) and that the conqueror declare an
intention to annex.51

4.7 What remained a matter of some dispute, however, was whether annexation by way
of subjugation should be regarded as an original or derivative title to territory and, as
such, whether it gave rise to rights in virtue of mere occupation, or rather more
extensive rights in virtue of succession (a point of particular importance for
possessions held in foreign territory).52 Rivier, for example, took the view that
conquest involved a three stage process: a) the extinction of the state in virtue of
debellatio which b) rendered the territory terra nullius leading to c) the acquisition of
title by means of occupation.53 Title, in other words, was original, and rights of the
occupants were limited to those which they possessed (perhaps under the doctrine uti
possidetis de facto). Others, by contrast, seemed to assume some form of ‘transfer of
title’ as taking place (i.e. that conquest gave rise to a derivative title54), and concluded
in consequence that the conqueror ‘becomes, as it were, the heir or universal
successor of the defunct or extinguished State’.55 Much depended, in such
circumstances, as to how the successor came to acquire title.

4.8 It should be pointed out, however, that even if annexation/ conquest was generally
regarded as a mode of acquiring territory, US policy during this period was far more
sceptical of such practice. As early as 1823 the US had explicitly opposed, in the
form of the Monroe Doctrine, the practice of European colonization56 and in the First
Pan-American Conference of 1889 and 1890 it had proposed a resolution to the effect
that ‘the principle of conquest shall not… be recognised as admissible under
American public law’. It had, furthermore, later taken the lead in adopting a policy of
non-recognition of ‘any situation, treaty, or agreement which may be brought about
by means contrary to the covenants and obligations of the Pact of Paris of August 27,
1928’ (the ‘Stimpson Doctrine’) which was confirmed as a legal obligation in a
resolution of the Assembly of the League of Nations in 1932. Even if such a policy
was not to amount to a legally binding commitment on the part of the US not to
acquire territory by use or threat of force during the latter stages of the 19th Century,
there is room to argue that the doctrine of estoppel might operate to prevent the US
subsequently relying upon forcible annexation as a basis for claiming title to the
Hawaiian Islands.

50
Baker S., Halleck’s International Law (3rd ed. 1893) p. 468.
51
This point was of considerable importance following the Allied occupation of Germany in 1945.
52
For an early version of this idea see de Vattel E., supra, n. 7, bk III, ss. 193-201; Bynkershoek C.,
Quaestionum Juris Publici Libri Duo (1737, trans Frank T., 1930) Bk. I, pp. 32-46.
53
Rivier, supra, n. 7, p. 182.
54
Phillimore, supra, n. 4, I, p. 328.
55
Baker, supra, n. 50, p. 495.
56
‘The American continents, by the free and independent conditions which they have assumed and
maintained, are henceforth not to be considered as subjects for future colonization by any European
Powers.’
12
5. US ACQUISITION OF THE ISLANDS

5.1 As pointed out above, the continuity of the Kingdom of Hawaii as an independent
state for purposes of international law is theoretically independent of the
legitimacy of claims to sovereignty over its territory on the part of other states.
By the same token, the fact that the entirety of the Hawaiian Islands have been
occupied, administered, and claimed as US territory for a considerable period of
time, means that attention must be given to the legitimacy of the US claims as part
of the process of determining Hawaiian continuity. US claims to sovereignty over
the Islands would appear to be premised upon one of three grounds: a) by the
original acquisition of the Islands in 1898 (by means of ‘annexation’ or perhaps
‘cession’); b) by the confirmation of the exercise of that sovereignty by plebiscite
in 1959; and c) by the continuous and effective display of sovereignty since 1898
to the present day (acquisitive prescription in the form of adverse possession).
Each of these claims will be considered in turn.

5.2 Acquisition of the Islands in 1898

5.2.1 The facts giving rise to the subsequent occupation and control of the Hawaiian
Kingdom by the US government are, no doubt, susceptible to various
interpretations. It is relatively clear, however, that US intervention in the Islands
first took place in 1893 under the guise of the protection of the US legation and
consulate and ‘to secure the safety of American life and property’.57 US troops
landed on the Island of O’ahu on 16th January and a Provisional Government was
established by a group of insurgents under their protection. On the following day,
and once Queen Lili’uokolani had abdicated her authority in favour of the United
States, US minister Stevens formally recognised de facto the Provisional
Government of Hawai’i. The Provisional Government then proceeded to draft
and sign a ‘treaty of annexation’ on February 14th 1893 and dispatch it to
Washington D.C. for ratification by the US Senate.

5.2.2 According to the first version of events as explained by President Harrison when
submitting the draft treaty to the Senate, the overthrow of the Monarchy ‘was not
in any way prompted by the United States, but had its origin in what seemed to be
a reactionary and revolutionary policy on the part of Queen Lili’uokalani which
put in serious peril not only the large and preponderating interests of the United
States in the Islands, but all foreign interests’.58 It was further emphasised in a
report of Mr Foster to the President that the US marines had taken ‘no part
whatever toward influencing the course of events’59 and that recognition of the
Provisional Government had only taken place once the Queen had abdicated, and
once it was in effective possession of the government buildings, the archives, the
treasury, the barracks, the police station, and all potential machinery of
57
Order of Jan. 16th 1893.
58
For. Rel. 1894, App. II, 198.
59
Report of Mr Foster, Sec. of State, For. Rel. 1894, App. II, 198-205.
13
 government. This version of events was to be contradicted in several important
respects shortly after.

5.2.3 Following receipt of a letter of protest sent by Queen Lili’uokalani, newly

incumbent President Cleveland withdrew the Treaty of Annexation from the
Senate and dispatched US Special Commissioner James Blount to Hawai’i to
investigate. The investigations of Mr Blount revealed that the presence of
American troops, who had landed without permission of the existing government,
were ‘used for the purpose of inducing the surrender of the Queen, who abdicated
under protest [to the United States and not the provisional government] with the
understanding that her case would be submitted to the President of the United
States.’60 It was apparent, furthermore, that the Provisional Government had been
recognised when it had little other than a paper existence, and ‘when the
legitimate government was in full possession and control of the palace, the
barracks, and the police station’.61 On December 18th 1893, President Cleveland
addressed Congress on the findings of Commissioner Blount. He emphasised that
the Provisional Government did not have ‘the sanction of either popular
revolution or suffrage’ and that it had been recognised by the US minister
pursuant to prior agreement at a time when it was ‘neither a government de facto
nor de jure’.62 He concluded as follows:

‘Hawai’i was taken possession of by United States forces without the consent or
wish of the Government of the Islands, or of anybody else so far as shown,
except the United States Minister. Therefore, the military occupation of
Honolulu by the United States… was wholly without justification, either of an
occupation by consent or as an occupation necessitated by dangers threatening
American life or property’.

Given the ‘substantial wrong’ that had been committed, he concluded that ‘the
United States could not, under the circumstances disclosed, annex the islands
without justly incurring the imputation of acquiring them by unjustifiable
methods’.

5.2.4 It is fairly clear then, that the position of the US government in December 1893
was that its intervention in Hawai’i was an aberration which could not be justified
either by reference to US law or international law. Importantly, it was also
emphasised that the Provisional Government had no legitimacy for purposes of
disposing of the future of the Islands ‘as being neither a government de facto nor
de iure’. At this stage there was an implicit acknowledgement of the fact that the
US intervention not only conflicted with specific US commitments to the
Kingdom (particularly article 1 of the 1849 Hawaiian-American Treaty which
provides that ‘[t]here shall be perpetual peace and amity between the United
States and the King of the Hawaiian Islands, his heirs and successors’) but also

60
Moore’s Digest, supra, n . 8, I, p. 499.
61
Ibid, pp. 498-99.
62
Moore’s Digest, supra, n. 8, p. 501.
14
 with the terms of general international law which prohibited intervention save for
purpose of self-preservation, or in accordance with the doctrine of necessity.63

5.2.5 This latter interpretation of events has since been confirmed by the US
government. In its Apology Resolution of 23rd November 1993 the US Congress
and Senate admitted that the US Minister (John Stevens) had ‘conspired with a
small group of non-Hawaiian residents of the Hawaiian Kingdom, including
citizens of the United States, to overthrow the indigenous and lawful Government
of Hawai’i’, and that in pursuance of that conspiracy had ‘caused armed naval
forces of the United States to invade the sovereign Hawaiian nation on January
16th 1893’. Furthermore, it is admitted that recognition was accorded to the
Provisional government without the consent of the Hawaiian people, and ‘in
violation of treaties between the two nations and of international law’, and that the
insurrection would not have succeeded without US diplomatic and military
intervention.

5.2.6 Despite admitting the unlawful nature of its original intervention, the US,
however, did nothing to remedy its breach of international law and was unwilling
to assist in the restoration of Queen Lili-uokolani to the throne even though she
had acceded to the US proposals in that regard. Rather it left control of Hawai’i
in the hands of the insurgents it had effectively put in place and who clearly did
not enjoy the popular support of the Hawaiian people.64 Following a proclamation
establishing the Republic of Hawai’i by the insurgents in 1894 – the overt purpose
of which was to enter into a Treaty of Political or Commercial Union with the
United States65 - de facto recognition of the Republic was affirmed by the US66
and a second Treaty of Annexation was signed in Washington by the incoming
President McKinley. Despite further protest on the part of Queen Lili’uokalani
and other Hawaiian organisations, the Treaty was submitted to the US Senate for
ratification in 1897. On this occasion, the Senate declined to ratify the treaty.
After the breakout of the Spanish-American War in 1898, however, and following
advice that occupation of the Islands was of strategic military importance, a Joint
Resolution was passed by US Congress purporting to provide for the annexation
of Hawai’i.67 A proposal requiring Hawaiians to approve the annexation was
defeated in the US Senate. Following that resolution, Hawai’i was occupied by
US troops and subject to direct rule by the US administration under the terms of
the Organic Act of 1900. President McKinley later characterised the effect of the
Resolution as follows:

‘by that resolution the Republic of Hawai’i as an independent nation was

extinguished, its separate sovereignty destroyed, and its property and possessions
veseted in the United States…’.68

63
Brownlie, International Law and the Use of Force by States (1963) pp. 46-7.
64
See, Budnick R., Stolen Kingdom: An American Conspiracy (1992)
65
Article 32 Constitution of the Republic of Hawai’i.
66
For. Rel. 1894, pp. 358-360.
67
XC B.F.S.P. 1897-8 (1901) 1248.
68
President McKinley, Third Annual Message, Dec. 5th 1899, Moore’s Digest, supra, n. 8, I, p. 511.
15
 Although the Japanese minister in Washington had raised certain concerns in
1897 as regards the position of Japanese labourers emigrating to the Islands under
the Hawaiian-Japanese Convention of 1888, and had insisted that ‘the
maintenance of the status quo’ was essential to the ‘good understanding of the
powers having interests in the Pacific’, it subsequently withdrew its opposition to
annexation subject to assurances as regards the treatment of Japanese subjects.69
No other state objected to the fact of annexation.

5.2.7 It is evident that there is a certain element of confusion as to how the US came to
acquire the Islands of Hawai’i during this period of time. Effectively, two forms
of justification seem to offer themselves: a) that the Islands were ceded by the
legitimate government of Hawai’i to the United States in virtue of the treaty of
annexation; or b) that the Islands were forcibly annexed by the United States in
absence of agreement.

5.2.8 The Cession of Hawai’i to the United States

5.2.8.1 The joint resolution itself speaks of the government of the Republic of Hawai’i
having signified its consent ‘to cede absolutely and without reserve to the United
States of American all rights of sovereignty of whatsoever kind’, suggesting, as
some commentators have later accepted, that the process was one of voluntary
merger.70 Hawai’i brought about, according to this thesis, its own demise by
means of voluntary submission to the sovereignty of the United States.71 This
interpretation was bolstered by the fact that the government of the Republic had
exercised de facto control over the Islands since 1893 – as President McKinley
was to put it: ‘four years having abundantly sufficed to establish the right and the
ability of the Republic of Hawai’i to enter, as a sovereign contractant, upon a
conventional union with the United States’.72 Furthermore, even if it had not been
formally recognised as the de jure government of Hawai’i by other nations,73 it
was effectively the only government in place (the government of Queen
Lili’uokolani being forced into internal exile).

5.2.8.2 Such a thesis overlooks two facts. First of all, whilst the Republic of Hawai’i had
certainly sponsored the adoption of a treaty of cession, the failure by the US to
ratify that instrument meant that no legally binding commitments in that regard
were ever created. This is not to say that the US actions in this regard were
therefore to be regarded as unlawful for purposes of international law. Even if
doubts exist as to the constitutional competence of US Congress to extend the
jurisdiction of the United States in the manner prescribed by the Resolution,74 this
in itself does not prevent the acts in question from being effective for purposes of

69
See, Moore’s Digest, supra, n. 8, I, pp. 504-9.
70
See e.g. Verzijl, supra, n. 6.
71
Ibid, I, p. 129.
72 th
Message of President McKinley to the Senate, June 16 1987, Moore’s Digest, supra, n. 8, I, p.
503.
73
Some type of recognition was provided by Great Britain in 1894, however.
74
See, Willoughby W., The Constitutional Law of the United States (2nd ed. 1929) I, p. 427.
16
 international law.75 Indeed, as suggested above it was widely recognised that, for
purposes of international law, annexation need not be accomplished by means of a
treaty of peace and could equally take the form of a unilateral declaration of
annexation. The significance of the failure to ratify, however, does suggest that
the acquisition was achieved, if at all, by unilateral act on the part of the United
States rather than being governed by the terms of the bilateral agreement.
Furthermore, and in consequence, US title to the territory would have to be
regarded as original rather than derivative. This point is well illustrated by the
decision of the Supreme Court of India in the case of Mastan Sahib v.Chief
Commissioner Pondicherry76 in which it was held that Pondicherry was not to be
considered as part of India, despite India’s administration of the territory, until
the 1954 Agreement between France and India had been ratified by France. This
was the case even though both parties had signed the agreement. Similarly, albeit
in a different context, the Arbitral Tribunal in the Iloilo Claims Arbitration took
the view that the US did not fully acquire sovereignty over the Philippines despite
its occupation until the date of ratification of the Peace Treaty of Paris of 1898.77

5.2.8.3 Doubts as to the validity of the voluntary merger/ cession thesis are also evident
when consideration is given to the role played by US troops in installing and
maintaining in power the Republican government in face of continued opposition
on the part of the ousted monarchy. If, as was admitted by the US in 1893,
intervention was unjustified and therefore undoubtedly in violation of its
international obligations owed in respect of Hawai’i, it seems barely credible to
suggest that it should be able to rely upon the result of that intervention (namely
the installation of what was to become the Republican government) by way of
justifying its claim that annexation was essentially consensual.

5.2.8.4 Central to the US thesis, in this respect, is the view that the government of the
self-proclaimed Republic enjoyed the necessary competence to determine the
future of Hawai’i. Notwithstanding the fact that the Republic was itself
maintained in power by means of US military presence, and notwithstanding its
recognition of the legitimate claims on the part of the Kingdom, the US
recognised the former as a de facto government with which it could deal. This,
despite the fact that US recognition policy during this period was ‘based
predominantly on the principle of effectiveness evidenced by an adequate
expression of popular consent’.78 As Secretary Seward was to indicate in 1868,
revolutions ‘ought not to be accepted until the people have adopted them by
organic law, with the solemnities which would seem sufficient to guarantee their
stability and permanence.’79 The US refusal, therefore, to recognise the Rivas

75
Article 7 of the ILC Articles on State Responsibility (2001) provides, for example, that ‘[ t]he
conduct of an organ of a State… shall be considered an act of the State under international law if the organ,
person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.’
76
I.L.R. (1969) 49
77
Iloilo Claims Arbitration (1925) 6 R.I.A.A. 158. To similar effect see Forest of Central Rhodope
Arbitration (Merits, 1933) 3 R.I.A.A. 1405; British Claims in Spanish Morocco (1924) 2 R.I.A.A. 627.
78
Lauterpacht, Recognition in International Law (1947) p. 124.
79
US Diplomatic Correspondence, 1866, II, p. 630.
17
 Government in Nicaragua in 1855 on the basis that ‘[i]t appears to be no more
than a violent usurpation of power, brought about by an irregular self-organised
military force, as yet unsanctioned by the will or acquiescence of the people’,80
stands in marked contrast to its willingness to offer such recognition to the
government of the Republic of Hawai’i in remarkably similar circumstances.
Given the precipitous recognition of the government of the Republic – itself an
act of unlawful intervention - it seems unlikely that the US could legitimately rely
upon the fact of its own recognition as a basis for claiming that its acquisition of
sovereignty over Hawai’i issued from a valid expression of consent.

5.2.9 The Annexation of Hawai’i by the United States

5.2.9.1 If there is some doubt as to the validity of the voluntary merger thesis, an
alternative interpretation of events might be to suggest that the US came to
acquire the Islands by way of what was effectively conquest and subjugation. It
could plausibly be maintained that annexation of the Islands came about
following the installation of a puppet government intent upon committing the
future of the Islands to the US and which was visibly supported by US armed
forces. According to this interpretation of events, the initial act of intervention in
1893 would simply be the beginning of an extended process of de facto
annexation which culminated in the extension of US laws to Hawai’i in 1898.
Whether or not the Republican government was the legitimate government of
Hawai’i mattered little, and the apparent lack of consent of the former Hawaiian
government largely irrelevant. According to this thesis the unlawful nature of the
initial intervention would ultimately be wiped out by the subsequent annexation
of the territory and the extinction of the Hawaiian Kingdom as an independent
State (just as Britain’s precipitous annexation of the Boer Republics in 1901 was
subsequently rendered moot by its perfection of title under the Peace Treaty of
1902). Support for this interpretation of events comes from the fact that the
Queen initially abdicated in favour of the United States, and not the Provisional
Government of 1893 (although she did eventually give an oath of allegiance to the
Republic in 1895) and from the persistent presence of US forces which, no doubt,
reinforced the authority of the Provisional Government and subsequently the
Government of the Republic.

5.2.9.2 The difficulties with this second approach are twofold. First of all, even if the
Government of the Republic had been installed with the support of US troops, it is
apparent that it was not subsequently subject to the same level of control as, for
example, was exercised in relation to the regime in Manchukuo by Japan in
1931.81 Thus, for example, the Provisional Government refused President
Cleveland’s request to restore the monarchy in 1893 on the basis that it would
involve an inadmissible interference in the domestic affairs of Hawai’i.82 It could
not easily be construed, in other words, merely as an instrument of US

80
Mr Buchanan to Mr Rush. Moore’s Digest, supra, n. 8, I, p. 124.
81
See, Hackworth G., Digest of International Law, (1940) I, pp. 333-338.
82
Moore’s Digest, supra, n. 8, I, p. 500.
18
 government. Secondly, it is apparent that whilst the threat of force was clearly
present, the annexation did not follow from the defeat of the Hawaiian Kingdom
on the battlefield, and was not otherwise pursuant to an armed conflict. Most
authors at the time were fairly clear that conquest and subjugation were events
associated with the pursuit of war and not merely with the threat of violence.
Indeed Bindschedler suggests in this regard, and by reference to the purported
annexation of Bosnia-Herzegovina by Austria-Hungary in 1908, that:

‘unless preceded by war, the unilateral annexation of the territory of another State
without contractual consent is illegal. It makes no difference that the territory
involved may already be under the firm control of the State declaring the
annexation.’83

The reason for this, no doubt, was the tendency to view international law as being
comprised of two independent sets of rules applicable respectively in peacetime
and in war (a differentiation which is no longer as sharp as it once was). A State
of war had several effects at the time including not merely the activation of the
laws and customs of war, but also the invalidation or suspension of existing treaty
obligations.84 This meant, in particular, that in absence of armed conflict, in other
words, the US would be unable to avoid its commitments under the 1849 Treaty
with Hawai’i, and would therefore be effectively prohibited from annexing the
Islands by unilateral act. This, no doubt, informed President Cleveland’s
unwillingness to support the treaty of annexation in 1893, and meant that the only
legitimate basis for pursuing annexation in the circumstances would have been by
treaty of cession.

5.2.9.3 Ultimately, one might conclude that there are certain doubts, albeit not necessarily
overwhelming, as to the legitimacy of the US acquisition of Hawai’i in 1898
under the terms of international law as it existed at that time. It neither possessed
the hallmarks of a genuine ‘cession’ of territory, nor that of forcible annexation
(conquest). If, however, the US neither came to acquire the Islands by way of
treaty of cession, nor by way of conquest, the question then remains as to whether
the sovereignty of the Hawaiian Kingdom was maintained intact. The closest
parallel, in this regard, is to be found in the law governing belligerent occupation.

5.2.10 Belligerent Occupation and Occupation Pacifica

5.2.10.1 From the time of Vattel onwards it was frequently been held that the mere
occupation of foreign territory did not lead to the acquisition of title of any kind
until the termination of hostilities.85 During the course of the 19 th Century,
however, this became not merely a doctrinal assertion, but a firmly maintained
axiom of international law.86 Up until the point at which hostilities were at an
end, the control exercised over territory was regarded as a ‘belligerent
83
Bindschedler R., ‘Annexation’, in Encylopedia of Public International Law, III, 19, p. 20.
84
Brownlie, supra, n. , pp. 26-40.
85
See e.g. de Vattel supra, n. 6, III, s. 196.
86
Graber believes this was the case following the Franco-Prussian war. Graber D., The Development
of the Law of Belligerent Occupation 1863-1914: A Historical Survey (1968) 40-41.
19
 occupation’ subject to the terms of the laws of war. The hallmark of belligerent
occupation being that the occupant enjoyed de facto authority over the territory
in question, but that sovereignty (and territorial title) remained in the hands of
the displaced government. As President Polk noted in his annual message of
1846 ‘by the law of nations a conquered territory is subject to be governed by
the conqueror during his military possession and until there is either a treaty of
peace, or he shall voluntarily withdraw from it.’87 In such a case ‘[ t]he
sovereignty of the enemy is in such case “suspended”, and his laws can “no
longer be rightfully enforced” over the occupied territory and that “[b]y the
surrender, the inhabitants pass under a temporary allegiance to the conqueror.”88
The suspensory, and provisional, character of belligerent occupation was further
confirmed in US case law of the time,89 in academic doctrine 90 and in various
Manuals on the Laws of War.91 The general idea was subsequently recognised
in Conventional form in article 43 of the 1907 Hague Regulations,92 and in the
US Military Manual of 1914.93

5.2.10.2 In essence, the doctrine of belligerent occupation placed certain limits on the
capacity of the occupying power to acquire or dispose of territory durante bello.
By inference, sovereignty remained in the hands of the occupied power and, as a
consequence it was generally assumed that until hostilities were terminated, title
to territory would not pass and the extinction of the state would not be complete.
This doctrine was subsequently elaborated during the course of the First and
Second World Wars to the effect that States would not be regarded as having
been lawfully annexed even when the entirety of the territory was occupied and
the government forced into exile, so long as the condition of war persisted,
albeit on the part of allied States. The general prohibition on the threat or use of
armed force in the Charter era since 1945 has further reinforced this regime to
the point at which it might be said that ‘effective control by foreign military
force can never bring about by itself a valid transfer of sovereignty’.94

87
President Polk’s Second Annual Message, 1846, Moore’s Digest, supra, n. 8, I, p. 46.
88
President Polk’s Special Message, July 24th, 1848. Moore’s Digest, supra, n. 8, I, pp. 46-7.
89
US v. Rice, US Supreme Court, 1819, 4 Wheat. 246 (1819)
90
Heffter, Das europäische Völkerrecht de Gengenwart (1844) pp. 287-9; Bluntschli, Das Moderne
Volkerrecht (3rd ed. 1878) pp. 303-7.
91
The Oxford Manual on the Laws of War on Land, 1880 provided (article 6): ‘No invaded territory
is regarded as conquered until the end of war; until that time the occupant exercises, in such territory, only
a de facto power, essentially provisional in character.’ See also, article 2 Brussells Code of 1874.
92
Regulations Respecting the Laws and Customs of War on Land, annex to the Convention (IV)
Respecting the Laws and Customs of War on Land, The Hague, October 18, 1907. The Brussels
Declaration of 1874 provided similarly (article 2) that ‘The authority of the legitimate power being
suspended and having in fact passed into the hands of the occupant, the latter shall take all the measures in
his power to restore and ensure, as far as possible, public order and safety’.
93
Rules of Land Warfare, 1914, pp. 105-6: ‘ Miliatary occupation confers upon the invading force
the right to exercise control for the period of occupation. It does not transfer the sovereignty of the
occupatnt, but simply the authority or power to exercise some of the rights of sovereignty’.
94
Benvenisti E., The International Law of Occupation (1993) p. 5.
20
5.2.10.3 Until the adoption of common article 2 of the 1949 Geneva Conventions,95
however, the doctrine of belligerent occupation applied primarily to time of war
or armed conflict where military intervention met armed resistance. Indeed, the
absence of resistance would not infrequently be construed either as an implicit
acceptance of the fact of occupation, or as a signal that the original sovereign
had been effectively extinguished in virtue of debellatio. It is evident, however,
that by the turn of the century a notion of peacetime occupation (occupatio
pacifica) was coming to be recognised.96 This concept encompassed not merely
occupation following the conclusion of an agreement between the parties, but
also non-consensual occupation occurring outside armed conflict (but normally
following the threatened use of force).97 Practice in the early 20 th Century
suggests that even though the Hague Regulations were themselves limited to
occupations pendente bello, their provisions should apply to peacetime
occupations such as the British occupation of Egypt in 1914-18,98 the Franco-
Belgian occupation of the Ruhr in 1923-599 and the occupation of Bohemia and
Moravia by Germany in 1939.100 Indeed, the Arbitral Tribunal in the Coenca
Brothers v. Germany Arbitration Case101 took the view that the Allied
occupation of Greece in 1915 was governed by the terms of the law of
belligerent occupation notwithstanding the fact that Greece was not a belligerent
at that time, but had merely invited occupation of Salonika in order to protect
the Serbian State. Similarly, in the Chevreau Case the Arbitrator intimated that

95
Common Article 2 of the 1949 Geneva Conventions 75 U.N.T.S. 31 reads:
‘In addition to the provisions which shall be implemented in peacetime, the present
Convention shall apply to all cases of declared war or of any other armed conflict which
may arise between two or more of the High Contracting Parties, even if the state of war is
not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory
of a High Contracting Party, even if the said occupation meets with no armed resistance.
Although one of the Powers in conflict may not be a party to the present Convention, the
Powers who are parties thereto shall remain bound by it in their mutual relations. They
shall furthermore be bound by the Convention in relation to the said Power, if the latter
accepts and applies the provisions thereof.’
It would seem that the purpose of this ‘extension’ of the regime of military occupation was to take
account of the peculiar facts surrounding the German occupation of Czechoslovakia in 1939 and Denmark
in 1940.
96
See, Robin, Des Occupations militaries en dehors des occupations de guerre (1913).
97
Llewellyn Jones F., ‘Military Occupation of Alien Territory in Time of Peace’, 9 Transactions of
Grotius Soc. (1924) 150; Roberts A., ‘What is a Military Occupation?’, 55 B.Y.I.L. (1984) 249, p. 273;
Feilchenfeld, The International Economic Law of Belligerent Occupation (1942) 116.
98
Leban and Others v. Alexandria Water Co. Ltd. and Others Egypt, Mixed Court of Appeal, 25
March 1929, A.D. 1929/30, Case No. 286.
99
See In re Thyssen and Others and In re Krupp and Others , 2 A.D. (1923-4) Case No. 191, pp.
327-8.
100
See Judgment of Nurnberg Tribunal, p. 125 ; Anglo-Czechoslovak and Prague Credit Bank v.
Janssen 12 A.D. (1943-5) Case No. 11, p. 47.
101
7 M.A.T., 1929, p. 683.
21
 the laws of belligerent occupation would apply to the British forces occupying
Persia under agreement with the latter in 1914.102

5.2.10.4 If the general terms of the Hague Regulations are to apply to peacetime
occupations, it would seem to follow that the same limitations apply as regards
the authority of the occupying State. In fact it is arguable that the rights of the
pacific occupant are somewhat less extensive than those of the belligerent
occupant. As Llewellyn Jones notes:

‘[i]n the latter case the occupant is an enemy, and has to protect himself
against attack on the part of the forces of the occupied State, and he is justified
in adopting measures which would justly be considered unwarranted in the
case of pacific occupation…’.103
Whether or not this has significance in the present context, it is apparent that the
US could not, as an occupying power, take steps to acquire sovereignty over the
Hawaiian Islands. Nor could it be justified in attempting to avoid the strictures
of the occupation regime by way of installing a sympathetic government bent on
ceding Hawaiian sovereignty to it. This point has now been made perfectly
clear in article 47 of the 1949 Geneva Convention IV which states that protected
persons shall not be deprived of the benefits of the Convention ‘by any change
introduced, as a result of the occupation of a territory, into the institutions of
government of the said territory’.

5.2.10.5 It may certainly be maintained that there are serious doubts as to the United
States’ claim to have acquired sovereignty over the Hawaiian Islands in 1898
and that the emerging law at the time would suggest that, as an occupant, such a
possibility was largely excluded. To the extent, furthermore, that US claims to
sovereignty were essentially defective, one might conclude that the sovereignty
of the Hawaiian Kingdom as an independent state was maintained intact. The
importance of such a conclusion is of course dependent upon the validity and
strength of subsequent bases for the claim to sovereignty on the part of the US.

5.3 Acquisition of the Islands in virtue of the Plebiscite of 1959

5.3.1 An alternative basis for the acquisition of title on the part of the US government
(and hence the conclusion that the Hawaiian Kingdom has ceased to exist as a
State) is the Plebiscite of 1959 exercised in pursuit of article 73 of Chapter XI of
the United Nations Charter. In 1945 Hawai’i was listed as a Non-Self-Governing
Territory administered by the United States together with its other overseas
territories including Puerto Rico, Guam, the Philippines, American Samoa and
Alaska. Article 73 of the Charter provides that:

102
Chevreau Case (France v. Great Britain) 27 A.J.I.L. (1931) 159, pp. 159-60.
103
Supra, n. , p. 159.
22
 ‘Members of the United Nations which have or assume responsibilities for the
administration of territories whose peoples have not yet attained a full measure of
self-government recognise the principle that the interests of the inhabitants of these
territories are paramount, and accept as a sacred trust the obligation to promote to the
utmost, within the system of international peace and security established by the
present Charter, the well-being of the inhabitants of these territories, and, to this end:
a) to ensure, with due respect for culture of the peoples concerned, their political,
economic, social, and educational advancement, their just treatment, and their
protection against abuses;
b) to develop self-government, to take due account of the political aspirations of the
peoples, and to assist them in the progressive development of their free political
institutions, according to the particular circumstances of each territory and its
peoples and their varying stages of advancement…
d) to transmit regularly to the Secretary-General for information purposes… statistical
and other information of a technical nature relating to economic, social, and
educational conditions in the territories for which they are respectively responsible.’
Central to this provision is the ‘advancement of the peoples concerned’ and the
development of their ‘self-government’. Unlike the United Nations Trusteeship
System elaborated in Chapters XII and XIII of the UN Charter, however, Chapter
XI does not stipulate clearly the criteria by which it may be determined whether a
people has achieved the status of self-government or whether the competence to
determine that issue lies with the organs of the United Nations or with the
administering State. The United Nations General Assembly, however, declared in
Resolution 334(IV) that the task of determining the scope of application of
Chapter XI falls ‘within the responsibility of the General Assembly’.

5.3.2 The General Assembly was to develop its policy in this respect during the
subsequent decades through the adoption of the UN List of Factors in 1953 (Res.
742 (VIII)), the Declaration on the Granting of Independence to Colonial
Countries and Peoples in 1960 (Res. 1514 (XV)), supplemented by Resolutions
1541 (XV) (1960) and 2625 (XXV) in 1970. Central to this policy development
was its elaboration of the meaning of self-determination in accordance with article
1(2) UN Charter (which provided that the development of ‘friendly relations
among nations based on respect for the principle of equal rights and self-
determination of peoples’ was one of the Purposes and Principles of the United
Nations). According to the General Assembly, colonial peoples must be able to
‘freely determine their political status and freely pursue their economic, social and
cultural development’ (Resn. 1514 (XV), and Resn. 2625 (XXV)), and primarily
by way of choosing between one of three alternatives: emergence as a sovereign
independent State; free association with an independent State; and integration
with an independent State (Resn. 1514 (XV) and Resn. 1541 (XV) principles II,
VI). The most common mode of self-determination was recognised to be full
independence involving the transfer of all powers to the people of the territories
‘without any conditions or reservations’ (Resn. 1514 (XV) principles VII, VIII
and IX). In case of integration with another state, it was maintained that the
people of the territory should act ‘with full knowledge of the change in their
status… expressed through informed and democratic processes, impartially
conducted and based on universal adult suffrage’ (Resn. 1541 (XV), principle IX).
23
 A higher level of scrutiny was generally exercised in case of integration than in
respect of other forms of self-determination. Until the time in which self-
determination is exercised, furthermore, ‘the territory of a… Non-Self-Governing
Territory has, under the Charter, a status separate and distinct from the territory of
the State’ (Resn. 2625 (XXV) para. VI).104 As the ICJ subsequently noted in its
Advisory Opinion in the Namibia case, the ‘development of international law in
regard to non-self-governing territories, as enshrined in the Charter of the United
Nations, made the principle of self-determination applicable to all of them’.105 It
emphasised, furthermore, in the Western Sahara case that ‘the application of the
right of self-determination requires a free and genuine expression of the will of
the peoples concerned’.106

5.3.3 An initial point in question here is whether Hawai’i should have been listed as a
Non-Self-Governing Territory at all for such purposes. Article 73 of the Charter
refers to peoples ‘who have not yet attained a full measure of self-government’ –
a point which is curiously inapplicable in case of Hawai’i. That being said, the
regime imposed was designed, primarily, to foster decolonisation after 1945 and it
was only with some reluctance that the United States agreed to include Hawai’i
on the list at all. The alternative would have been for Hawai’i to remain under the
control of the United States and deprived of any obvious means by which it might
re-obtain its independence. The UN Charter may be seen, in that respect, as
having created a general but exclusive system of entitlements whereby only those
non-State entities regarded as either Non-Self-Governing or Trust Territories
would be entitled to independence by way of self-determination absent the
consent of the occupying power.107 It may be emphasised, furthermore, that to
regard Hawai’i as being a territory entitled to self-determination was not entirely
inconsistent with its claims to be the continuing State. The substance of self-
determination in its external form as a right to political independence may be
precisely that which may be claimed by a State under occupation. Indeed, the
General Assembly Declaration on Friendly Relations (Resn. 2625) makes clear
that the right is applicable not simply in case of colonialism, but also in relation to
the ‘subjection of peoples to alien subjugation, domination and exploitation’.
Crawford points out, furthermore, that self-determination applies with equal force
to existing states taking ‘the well-known form of the rule preventing intervention
in the internal affairs of a State: this includes the right of the people of the State to
choose for themselves their own form of government’.108 The international
community’s subsequent recognition of the applicability of self-determination in
case of the Baltic States, Kuwait and Afghanistan, for example, would appear
merely to emphasise this point.109 One may tolerate, in other words, the placing
of Hawai’i on the list of non-self-governing territories governed by article 73 only

104
This follows by implication from the terms of article 74 UN Charter.
105
ICJ Rep. (1971), 31, para. 51.
106
ICJ Rep (1975) 12, p. 32.
107
For a review of the practice in this regard see Crawford J., ‘State Practice and International Law
in Relation to Secession’, 69 B.Y.I.L (1998) 85.
108
Crawford, supra, n. 2, p. 100.
109
See Cassese A., Self-Determination of Peoples: A Legal Reappraisal (1995) pp. 94-5.
24
 to the extent that the entitlement to self-determination under that article was
entirely consonant with the general entitlements to ‘equal rights and self-
determination’ in articles 1(2) and 55 of the Charter.

5.3.4 Notwithstanding doubts as to the legality of US occupation/ annexation of

Hawai’i, it would seem evident that any outstanding problems would be
effectively disposed of by way of a valid exercise of self-determination. In
general, the principle of self-determination may be said to have three effects upon
legal title. First of all it envisages a temporary legal regime that may, in effect,
lead to the extinction of legal title on the part of the Metropolitan State.110
Secondly, it may nullify claims to title in cases where such claims are inconsistent
with the principle. Finally, and most importantly in present circumstances, it may
give rise to a valid basis for title including cases where it has resulted in free
integration with another State. In this third scenario, if following a valid exercise
of self-determination on the part of the Hawaiian people it was decided that
Hawai’i should seek integration into the United States, this would effectively
bring to a close any claims that might remain as to the continuity of the Hawaiian
Kingdom.

5.3.5 Turning then to the question whether the Hawaiian people can be said to have
exercised self-determination following the holding of a plebiscite on June 27th
1959. The facts themselves are not in dispute. On March 18th 1959 the United
States Congress established an Act to Provide for the admission of the State of
Hawai’i into the Union setting down, in section 7(b) the terms by which this
should take place. This specified that:

‘At an election designated by proclamation of the Governor of Hawai’i … there shall

be submitted to the electors, qualified to vote in said election, for adoption or
rejection, the following propositions:
1. Shall Hawai’i immediately be admitted into the Union as a State?…
An election was held on June 27th 1959 in accordance with this Act and a majority
of residents voted in favour of admission into the United States. Hawai’i was
formally admitted into the Union by Presidential Proclamation on August 21st
1959. A communication was then sent to the Secretary-General of the United
Nations informing him that Hawai’i had, in virtue of the plebiscite and
proclamation, achieved self-governance. The General Assembly then decided in
Resolution 1469(XIV) that the US would no longer be required to report under
the terms of article 73 UN Charter as to the situation of Hawai’i.

5.3.6 Two particular concerns may be raised in this context. First, the plebiscite did not
attempt to distinguish between ‘native’ Hawaiians or indeed nationals of the
Hawaiian Kingdom and the resident ‘colonial’ population who vastly
outnumbered them. This was certainly an extraordinary situation when compared
with other cases with which the UN was dealing at the time, and has parallels with
one other notoriously difficult case, namely the Falkland Islands/ Malvinas (in

110
Crawford, supra, n. 2, pp. 363-4; Shaw, Title to Territory in Africa, pp. 149 ff.
25
 which the entire population is of settler origin). There is certainly nothing in the
concept of self-determination as it is known today to require an administering
power to differentiate between two categories of residents in this respect, and
indeed in many cases it might be treated as illegitimate.111 By the same token, in
some cases a failure to do so may well disqualify a vote where there is evidence
that the administering state had encouraged settlement as a way of manipulating
the subsequent result.112 This latter point seems to be even more clear in a case
such as Hawai’i in which the holders of the entitlement to self-determination had
presumptively been established in advance by the fact of its (prior or continued)
existence as an independent State. In that case, one might suggest that it was only
those who were entitled to regard themselves as nationals of the Kingdom of
Hawaii (in accordance with Hawaiian law prior to 1898), who were entitled to
vote in exercise of the right to self-determination.

5.3.6 A second, worrying feature of the plebiscite concerns the nature of the choice
being presented to the Hawaiian people. As GA Resn. 1514 makes clear, a
decision in case of integration should be made ‘with full knowledge of the change
in their status… expressed through informed and democratic processes,
impartially conducted and based on universal adult suffrage’. It is far from clear
that much, if any, information was provided as regards the ‘change in status’ that
would occur with integration, and there is no evidence that the alternative of full
independence was presented as an option. Judged in terms of the later resolutions
of the General Assembly on the issue, then, it would seem that the plebiscite falls
considerably short of that which would be required for purposes of a valid
exercise of self-determination.113

5.3.7 An important point, here, as is evident from the discussion above, is that most of
the salient resolutions by which the General Assembly ‘developed’ the law
relating to decolonisation post-dated the plebiscite in Hawai’i, and the
organisation’s practice in that respect changed quite radically following the
establishment of the Committee of Twenty-Four in 1961 (Resn. 1700 (XVI)). Up
until that point, many took the view that Non-Self-Governing Territories were
merely entitled to ‘self-government’ rather than full political independence, and
that self-determination was little more than a political principle being, at best, de
lege farenda.114 There was, in other words, no clear obligation as far as UN
practice at the time was concerned, for the decision made in 1959 to conform to
the requirements later spelled out in relation to other territories – practice was
merely crystallising at that date. The US made clear, in fact, that it did not regard
UN supervision as necessary for purposes of dealing with its Non-Self-Governing
Territories such as Puerto Rico, Alaska or Hawai’i.115 Whilst such a view was,
perhaps, defensible at the time given the paucity of UN practice, it does not itself
dispose of the self-determination issue. It might be said, to begin with, that in
111
See, Hannum H., ‘Rethinking Self-Determination’, 34 Va.J.I.L. (1993) 1, p. 37.
112
Cf. the case of Israeli settlements in the Occupied Territories, Cassese, supra, n. 97, p. 242.
113
Similar points have been made as regards the disputed integration of West Irian into Indonesia.
114
See, Jennings R., The Acquisition of Territory in International Law (1963) pp. 69-87.
115
US Department of State Bulletin, (1952) p. 270.
26
 light of the subsequent development of the principle, it is not possible to maintain
that the people of Hawai’i had in reality exercised their right of self-determination
(as opposed to having merely been granted a measure of self-government within
the Union). Such a conclusion, however, is debatable given the doctrine of inter-
temporal law. More significant, however, is the fact that pre-1960 practice did
not appear to be consistent with the type of claim to self-determination that would
attach to independent, but occupied, States (in which one would suppose that the
choice of full political independence would be the operative presumption,
rebuttable only by an affirmative choice otherwise). As a consequence, there are
strong arguments to suggest that the US cannot rely upon the fact of the plebiscite
alone for purposes of perfecting its title to the territory of Hawai’i.

5.4 Acquisition of Title by Reason of Effective Occupation / Acquisitive Prescription

5.4.1 As pointed out above, it cannot definitively be supposed that the US did acquire
valid title to the Hawaiian Islands in 1898, and even if it did so, the basis for that
title may now be regarded as suspect given the current prohibition on the
annexation of territory by use of force. In case of the latter, the second element of
the doctrine of inter-temporal law as expounded by Arbitrator Huber in the Island
of Palmas case may well be relevant. Huber distinguishes in that case between
the acquisition of rights on the one hand (which must be founded in the law
applicable at the relevant date) and their existence or continuance at a later point
in time which must ‘follow the conditions required by the evolution of the law’.
One interpretation of this would be to suggest that title may be lost if a later rule
of international law were to arise by reference to which the original title would no
longer be lawful. Thus, it might be said that since annexation is no longer a
legitimate means by which title may be established, US annexation of Hawai’i (if
it took place at all) would no longer be regarded as well founded. Apart from the
obvious question as to who may be entitled to claim sovereignty in absence of the
United States, it is apparent that Huber’s dictum primarily requires that ‘a State
must continue to maintain a title, validly won, in an effective manner – no more
no less.’116 The US, in other words, would be entitled to maintain its claim over
the Hawaiian Islands so long as it could show some basis for asserting that claim
other than merely its original annexation. The strongest type of claim in this
respect is the ‘continuous and peaceful display of territorial sovereignty’.

5.4.2 The emphasis given to the ‘continuous and peaceful display of territorial
sovereignty’ in international law derives in its origin from the doctrine of
occupation which allowed states to acquire title to territory which was effectively
terra nullius. It is apparent, however, and in line with the approach of the ICJ in
the Western Sahara Case,117 that the Islands of Hawai’i cannot be regarded as

116
Higgins R., ‘Time and the Law: International Perspectives on an Old Problem’, 46 I.C.L.Q.
(1997) 501, p. 516.
117
Supra n. 94.
27
 terra nullius for purpose of acquiring title by mere occupation. According to
some, nevertheless, effective occupation may give rise to title by way of what is
known as ‘acquisitive prescription’.118 As Hall maintained, ‘[t]itle by prescription
arises out of a long continued possession, where no original source of proprietary
right can be shown to exist, or where possession in the first instance being
wrongful, the legitimate proprietor has neglected to assert his right, or has been
unable to do so.’119 Johnson explains in more detail:

‘Acquisitive Prescription is the means by which, under international law, legal

recognition is given to the right of a State to exercise sovereignty over land or sea
territory in cases where that state has, in fact, exercised its authority in a continuous,
uninterrupted, and peaceful manner over the area concerned for a sufficient period of
time, provided that all other interested and affected states (in the case of land
territory the previous possessor…) have acquiesced in this exercise of authority.
Such acquiescence is implied in cases where the interested and affected states have
failed within a reasonable time to refer the matter to the appropriate international
organization or international tribunal or – exceptionally in cases where no such
action was possible – have failed to manifest their opposition in a sufficiently
positive manner through the instrumentality of diplomatic protests.’120

Although no case before an international court or tribunal has unequivocally

affirmed the existence of acquisitive prescription as a mode of acquiring title to
territory,121 and although Judge Moreno Quintana in his dissenting opinion in the
Rights of Passage case122 found no place for the concept in international law, there
is considerable evidence that points in that direction. For example, the continuous
and peaceful display of sovereignty, or some variant thereof, was emphasised as
the basis for title in the Minquiers and Ecrehos Case (France v. United
Kingdom),123 the Anglo-Norwegian Fisheries Case (United Kingdom v.
Norway)124 and in the Island of Palmas Arbitration.125

5.4.3 If a claim as to acquisitive prescription is to be maintained in relation to the

Hawaiian Islands, various indica have to be considered including, for example,
the length of time of effective and peaceful occupation, the extent of opposition to
or acquiescence in, that occupation and, perhaps, the degree of recognition
provided by third states. As Jennings and Watts confirm, however, ‘no general
rule [can] be laid down as regards the length of time and other circumstances
which are necessary to create such a title by prescription. Everything [depends]
upon the merits of the individual case’.126 As regards the temporal element, the

118
For a discussion of the various approaches to this issue see Jennings and Watts, supra, n. 8, pp.
705-6.
119
Hall W., A Treatise on International Law (Pearce Higgins, 8th ed 1924) p. 143.
120
Johnson, 27 B.Y.I.L. (1950) 332, pp. 353-4.
121
Prescription may be said to have been recognised in the Chamizal Arbitration, 5 A.J.I.L. (1911)
785; the Grisbadana Arbitration P.C.I.J. 1909; and the Island of Palmas Arbitration, supra n. 13.
122
ICJ Rep. 1960, p. 6.
123
ICJ Rep. 1953 47
124
ICJ Rep. 1951 116.
125
Supra, n. 13.
126
Supra, n. , p. 706.
28
 US could claim to have peacefully and continuously exercised governmental
authority in relation to Hawai’i for over a century. This is somewhat more than
was required for purposes of prescription in the British Guiana-Venezuela
Boundary Arbitration, for example,127 but it is clear that time alone is certainly not
determinative. Similarly, in terms of the attitude of third states, it is evident that
apart from the initial protest of the Japanese Government in 1897, none has
opposed the extension of US jurisdiction to the Hawaiian Islands. Indeed the
majority of States may be said to have acquiesced in its claim to sovereignty in
virtue of acceding to its exercise of sovereign prerogatives in respect of the
Islands (for example, in relation to the policing of territorial waters or airspace,
the levying of customs duties, or the extension of treaty rights and obligations to
that territory). It is important, however, not to attach too much emphasis to third
party recognition. As Jennings points out, in case of adverse possession
‘[r]ecognition or acquiescence on the part of third States… must strictly be
irrelevant’.128

5.4.4 More difficult, in this regard, is the issue of acquiescence/ protest. In the
Chamizal Arbitration129 it was held that the US could not maintain a claim to the
Chamizal tract by way of prescription in part because of the protests of the
Mexican government. The Mexican government, in the view of the Commission,
had done ‘all that could be reasonably required of it by way of protest against the
illegal encroachment’. Although it had not attempted to retrieve the land by force
the Commission pointed out that:

‘however much the Mexicans may have desired to take physical possession of the
district, the result of any attempt to do so would have provoked scenes of violence
and the Republic of Mexico can not be blamed for resorting to the milder forms of
protest contained in its diplomatic correspondence.’130
It would seem, in other words, that protesting in any way that might be
‘reasonably required’ should effectively defeat a claim of prescription.

5.4.5 The difficulty of applying such considerations in the current circumstances is

evident. Although the Hawaiian Kingdom (the Queen) protested vociferously at
the time, and on several separate occasions, and although this protest resulted in
the refusal of the US Senate to ratify the treaty of cession, from 1898 onwards no
further action was taken in this regard. The reason, of course, is not hard to find.
The government of the Kingdom had been effectively removed from power and
the US had de facto, if not de jure, annexed the Islands. The Queen herself
survived only until 1917 and did so before a successor could be confirmed in
accordance with article 22 of the 1864 Constitution. This was not a case,
moreover, of the occupation of merely part of the territory of Hawai’i in which
case one might have expected protests to be maintained on a continuous basis by

127
The arbitrators were instructed by their treaty terms of reference to allow title if based upon
‘adverse holding or prescription during a period of 50 years’. 92 BFSP (1899-1900) 160.
128
Jennings, supra, n. 102, p. 39.
129
US v. Mexico (1911), 5 A.J.I.L. (1911) 782.
130
Ibid.
29
 the remaining State. In the circumstances, therefore, it is entirely understandable
that the Queen or her government failed to pursue the matter further when it
appeared exceedingly unlikely that any movement in the position of the US
government would be achieved. This is not to say, of course, that the government
of the Kingdom subsequently acquiesced in the US occupation of the Islands,
which of course raises the question whether a claim of acquisitive prescription
may be sustained. In the view of Jennings, in cases of acquisitive prescription,
‘an acquiescence on the part of the State prescribed against is of the essence of the
process’.131 If, as he suggests, some positive indication of acquiescence is to be
found, there is remarkably little evidence for it. Indeed, of significance in this
respect is the admission of the United States in the ‘Apology Resolution’ of 1993
in which it noted that ‘the indigenous Hawaiian people never directly relinquished
their claims to the inherent sovereignty as a people or over their national lands to
the United States, either through their monarchy or through a plebiscite or
referendum’. By the same token, the weight of evidence in favour of prescription
should not be underplayed. As Jennings and Watts point out:

‘When, to give an example, a state which originally held an island mala fide under a
title by occupation, knowing well that this land had already been occupied by
another state, has succeeded in keeping up its possession undisturbed for so long a
time that the former possessor has ceased to protest and has silently dropped the
claim, the conviction will be prevalent among states that the present condition of
things is in conformity with international order.’132
The significant issue, however, is whether such considerations apply with equal
ease in cases where the occupation concerned comprises the entirety of the State
concerned, and where the possibilities of protest are hampered by the fact of
occupation itself. It is certainly arguable that if a presumption of continuity
exists, different considerations must come into play.

131
Supra, n. 102, p. 39.
132
Supra, n. 8, p. 707.
30
 Permanent Court of Arbitration
PCA Case Re ository

arsen awaiian in do

Case name arsen v. awaiian ingdom

Case des ri tion an e Paul arsen, a resident of awaii, brought a laim against the awaiian ingdom by its
Coun il of Regen y awaiian ingdom on the grounds that the overnment of the
awaiian ingdom is in ontinual violation of a its reaty of riendshi , Commer e and
avigation with the nited tates of Ameri a, as well as the rin i les of international law laid
down in the ienna Convention on the aw of reaties, and b the rin i les of
international omity, for allowing the unlawful im osition of Ameri an muni i al laws over the
laimant s erson within the territorial urisdi tion of the awaiian ingdom.
 
n determining whether to a e t or de line to e er ise urisdi tion, the ribunal onsidered
the uestions of whether there was a legal dis ute between the arties to the ro eeding, and
whether the tribunal ould ma e a de ision regarding that dis ute, if the very sub e t matter of
the de ision would be the rights or obligations of a tate not arty to the ro eedings. 
 
he ribunal underlined the many oints of agreement between the arties, arti ularly with
res e t to the ro ositions that awaii was never lawfully in or orated into the nited tates,
and that it ontinued to e ist as a matter of international law. he ribunal noted that if there
e isted a dis ute, it on erned whether the res ondent has ful lled what both arties maintain
is its duty to rote t the Claimant, not in the abstra t but against the a ts of the nited tates
of Ameri a as the o u ant of the awaiian islands. oreover, the nited tates a tions
would not give rise to a duty of rote tion in international law unless they were themselves
unlawful in international law. he ribunal on luded that it ould not determine whether the
Res ondent has failed to dis harge its obligations towards the Claimant without ruling on the
legality of the a ts of the nited tates of Ameri a something the ribunal was re luded
from doing as the nited tates was not arty to the ase. 

ame s of laimant s an e Paul arsen Private entity

ame s of res ondent s he awaiian ingdom tate

ames of arties

Case number

Administering institution Permanent Court of Arbitration PCA

Case status Con luded

y e of ase ther ro eedings

ub e t matter or e onomi se tor reaty inter retation

Rules used in arbitral ro eedings C RA Arbitration Rules

reaty or ontra t under whi h ro eedings ther

were ommen ed he reaty of riendshi , Commer e and avigation with the nited tates of Ameri a

anguage of ro eeding nglish

eat of arbitration by ountry etherlands

Arbitrator s r. avan ri th C
Professor Christo her . reenwood C
Professor ames Crawford C President of the ribunal

Re resentatives of the laimant s s. inia Par s, Counsel and Agent

Re resentatives of the res ondent s r. avid eanu ai, Agent

 r. Peter mialiloa ai, irst de uty agent
r. ary i tor ubin, e ond de uty agent and ounsel

Re resentatives of the arties

umber of arbitrators in ase

ate of ommen ement of ro eeding dd

mm yyyy

ate of issue of nal award dd mm yyyy  

ength of ro eedings years

Additional notes

Atta hments Award or other decision

Arbitral Award   nglish

Other
Anne President Cleveland s essage to the enate and the
nglish
ouse of Re resentatives  

oint Resolution oa nowledge the th anniversary of the

anuary , overthrow of the ingdom of awaii, and to o er an

nglish
a ology to the native awaiians on behalf of the nited tates for the  

overthrow of the ingdom of awaii.

Powered by the Permanent Court of Arbitration, All Rights Reserved.

 
 Stephen Laudig, Attorney, HBN #8038
1914 University Avenue #103 — Honolulu, HI 96822 — Phone: 808-232-1935 —
Email: SteveLaudig@gmail.com

21 August 2018

Corporation Counsel Joseph K. Kamelamela

Office of the Corporation Counsel
Hilo Lagoon Centre
101 Aupuni Street, Unit 325
Hilo, HI 96720

Re: Inquiry Regarding Allegations of War Crimes and Criminal Liability

Dear Corporation Counsel Joseph K. Kamelamela:

My name is Stephen Laudig. I have been retained by Hawai‘i County Council member Jennifer
Ruggles as her counsel in order to address her concerns of possibly incurring criminal liability
under international humanitarian law as defined, inter alia, the 1907 Hague Convention, IV,
Respecting the Laws and Customs of War on Land (36 Stat. 2199) (“Hague Regulations”), and the
1949 Geneva Convention, IV, Relative to the Protection of Civilian Persons in Time of War (6
U.S.T. 3516), (“Geneva Convention”).

Violations of certain provisions of these two Conventions have been codified under 18 U.S.C.
§2441—War Crimes.

Council member Ruggles has become aware of the history of the United States’ illegal occupation
of the Hawaiian Kingdom through, among other things, the research and publications of Dr. Keanu
Sai; the Larsen v. Hawaiian Kingdom proceedings held under the auspices of the Permanent Court
of Arbitration, The Hague, Netherlands; a memorandum, dated 15 February 2018 authored by
United Nations Independent Expert, Office of the High Commissioner for Human Rights, Dr.
Alfred deZayas’ which had been sent to and received by certain members of the State of Hawai‘i
judiciary; and, a recent Petition for Writ of Mandamus, David Keanu Sai, as Chairman of the
Council of Regency v. Donald Trump, as President of the United States, lodged with the United
States District Court for the District of Columbia on 15 June 2018. That petition addresses the
failure of the United States to administer the laws of the Hawaiian Kingdom under Article 43 of
the 1907 Hague Regulations and Article 64 of the 1949 Geneva Convention.

The Hague Regulations and the Geneva Convention are international treaties that have been
ratified by the United States Senate, and, consequently, are part of the supreme law of the United
States. Council member Ruggles is aware of her oath to support and defend the Constitution and
laws of the United States and that this oath includes treaties and conventions and customary
international laws. See The Paquete Habana 175 U.S. 677, 700 (1900).
Officials of the State of Hawai‘i often claim that the Hawaiian Kingdom does not exist as a
sovereign and independent State. It is undisputed that the Hawaiian Kingdom was recognized by
the United States as a sovereign and independent State by President John Tyler. The Permanent
Court of Arbitration, in Larsen v. Hawaiian Kingdom, 119 International Law Reports 566, 581
(2001), acknowledged that “in the nineteenth century the Hawaiian Kingdom existed as an
independent State recognized as such by the United States of America, the United Kingdom and
various other States, including by exchanges of diplomatic or consular representatives and the
conclusion of treaties.”

In his message to the U.S. Congress on 18 December 1893, then-President Cleveland concluded
that by “an act of war, committed with the participation of a diplomatic representative of the United
States and without authority of Congress the Government of a feeble but friendly and confiding
people has been overthrown” on 17 January 1893. See attached President Cleveland’s Message to
Congress. What was illegally overthrown was the Hawaiian Kingdom government, not the
Hawaiian State. Since the mid-nineteenth century, international law has made a clear distinction
between a State, being the subject of international law, and its organ called a government.

According to customary international law at the time, these acts of war committed by the United
States within Hawaiian territory transformed the relationship between the Hawaiian State and the
United States State from a state of peace to a state of war. The rules of jus in bello immediately
applied. I am providing you with a brief by Dr. David Keanu Sai, The Larsen v. Hawaiian Kingdom
Case at the Permanent Court of Arbitration and Why There Is An Ongoing Illegal State of War
with the United States of America Since 16 January 1893 (16 October 2017). Dr. Sai is an
acknowledged expert in the area of the continuity of the Hawaiian Kingdom as an independent
State and international laws. He has been admitted to give expert testimony on this subject in court
proceedings before courts of the State of Hawai‘i. See Fukumitsu v. Fukumitsu, case no. 08-1-0843
RAT; Onewest Bank v. Tamanaha, case no. 3RC10-1-1306; State of Hawai‘i v. English, case no.
CR 14-1-0819(3); State of Hawai‘i v. Kinimaka, case no. 5DCW-16-0000233; State of Hawai‘i v.
Larsen, case no. 3DTA08-03139; State of Hawai‘i v. Larsen, case no. 3DTC08-023156; State of
Hawai‘i v. Maluhia-Fuller, case no. 1 DTC-15-028868. Three of these cases were held in courts
of the Third Circuit.

The laws of war and occupation were customary international law in 1893, and subsequently
codified under the 1899 Hague Convention, III. The 1899 Hague Convention was superseded by
the Hague Regulations and the Geneva Convention. According to Article 154 of the Geneva
Convention, its provisions supplement the Hague Regulations. The Hawaiian Kingdom has been
under a prolonged military occupation since 17 January 1893.

2
Under international law, there is only one method by which the United States could have acquired
the sovereignty and independence of the Hawaiian Kingdom. That method is by a treaty of peace.
There is no such treaty. During the Spanish-American War in 1898, the United States Congress
enacted a joint resolution purporting to annex the Hawaiian Islands to the United States on 7 July
1898 (30 Stat. 750). Congressional legislation has no extraterritorial effect. See, The Apollon, 22
U.S. 362, 370 (1824) and United States v. Curtiss Wright Export Corp., 299 U.S. 304, 318 (1936).

Congressional statutes are not a source of international law that would affect foreign States.
According to Article 38(1) of the Statute of the International Court of Justice, sources of
international law include:

(a) international conventions, whether general or particular, establishing

rules expressly recognized by States;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized by civilized nations; and
judicial decisions and the teachings of the most highly qualified publicists
of the various nations, as subsidiary means for the determination of rules
of law.

Given that congressional legislation is limited in scope and application to United States territory,
the Department of Justice in 1988 opined:

Notwithstanding these constitutional objections [of the territorial

limitation of legislation], 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. … 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. See Douglas W. Kmiec, Legal
Issues Raised by Proposed Presidential Proclamation To Extend the
Territorial Sea, 12 Opinions of the Office of Legal Counsel 238, 252
(1988).

If it was “unclear which constitutional power Congress exercised when it acquired Hawaii by joint
resolution” in 1898, it would be equally unclear as to how the Congress could enact a statute
establishing the Territory of Hawai‘i in 1900 (31 Stat. 141), and the State of Hawai‘i in 1959 (73
Stat. 4) within the territory of a foreign State. Under Article 43 of the Hague Regulations and

3
Article 64 of the Geneva Convention, the United States, as an occupying State, is obligated to
administer the laws of the Hawaiian Kingdom, the occupied State.

The unlawful imposition of United States laws within the territory of the Hawaiian Kingdom since
1898 constitutes a violation of international law. This imposition became the subject of an
international dispute between Lance Paul Larsen and the Hawaiian Kingdom government that was
restored in 1995. The dispute was accepted by the Permanent Court of Arbitration (PCA), The
Hague, Netherlands, on 8 November 1999 as Lance Paul Larsen v. Hawaiian Kingdom and
assigned as PCA Case no. 1999-01. The Secretariat of the PCA acknowledged the continuity of
the Hawaiian Kingdom as a State under international law, and the restored Hawaiian Kingdom
government, by its Council of Regency, as its organ. See attached PCA Case Repository, Larsen
v. Hawaiian Kingdom.

Prior to the PCA’s establishment of the ad hoc tribunal in 2000, the Hawaiian Council of Regency
entered into an executive agreement, via an exchange of notes verbales, with the United States
Department of State that was brokered by the Deputy Secretary General of the PCA. By this
agreement, the United States, by these acts of negotiation and agreement, acknowledged the
continuity of the Hawaiian Kingdom as a State and recognized, de facto, the Council of Regency.
I am providing another brief by Dr. David Keanu Sai, Memorandum of the De Facto Recognition
by the United States of America of the Restored Hawaiian Kingdom Government by Exchange of
Notes Verbales (21 March 2018).

This executive agreement between the Department of State and the Hawaiian Council of Regency
precludes any intervention or question by the States of the federal union.

[I]n the case of all international compacts and agreements [deriving] from
the very fact that complete power over international affairs is in the
national government, and is not and cannot be subject to any curtailment
or interference on the part of the several states. […] In respect of all
international negotiations and compacts, and in respect of our foreign
relations generally, state lines disappear.” See United States v. Belmont,
301 U.S. 324, 331 (1937); see also United States v. Pink, 315 U.S. 203,
230 (1942) (“But state law must yield when it is inconsistent with or
impairs the policy or provisions of, a treaty or of an international compact
or agreement”), and American Ins. Assn. v. Garamendi, 539 U.S. 396, 419
(2003) (“state law may not be allowed to ‘interfer[e] with the conduct of
our foreign relations by the Executive.”)

Under this rule, State of Hawai‘i courts are also precluded from interfering with political decisions
made by the Department of State regarding foreign States, which, in this case, is the Hawaiian

4
Kingdom. The “judiciary ordinarily follows the executive as to which nation has sovereignty over
disputed territory.” See Baker v. Carr, 369 U.S. 186, 212 (1962). Political questions for the
Congress to determine, and not the Executive, include the status of Indian tribes and whether a
government within United States territory is republican in form. See id., at 215-18. The law with
regard to which branch of government recognizes foreign States or governments is clearly stated
by the Senate Foreign Relations Committee in 1897.

The executive branch is the sole mouthpiece of the nation in

communication with foreign sovereignties. Foreign nations communicate
only through their respective executive departments. Resolutions of their
legislative departments upon diplomatic matters have no status in
international law. In the department of international law, therefore,
properly speaking, a congressional recognition of belligerency or
independence would be a nullity. See Sen. Doc. 56, 54th Cong. 2d Sess.
(1897), p. 20-22.

Contemporary views of the Hawaiian Kingdom’s political status have deferred to the Congress
and not the State Department, because it was assumed that the State of Hawai‘i replaced the
Hawaiian Kingdom. Since the Larsen case, however, this mistaken view is no longer tenable.

Council member Ruggles is in receipt of a response to a complaint made by Mrs. Routh Bolomet
with the United Nations Human Rights Council, whereby the United Nations Independent Expert,
Dr. Alfred M. deZayas, sent a memorandum dated 25 February 2018, from Geneva, Switzerland,
to State of Hawai‘i Judges Gary W.B. Chang and Jeanette H. Castagnetti, and the Members of the
Judiciary of the State of Hawai‘i. In his memorandum, the Independent Expert stated:

I have come to understand that the lawful political status of the Hawaiian
Islands is that of a sovereign nation-state in continuity; but a nation-state
that is under a strange form of occupation by the United States resulting
from an illegal military occupation and a fraudulent annexation. As such,
international laws (the Hague and Geneva Conventions) require that
governance and legal matters within the occupied territory of the Hawaiian
Islands must be administered by the application of the laws of the occupied
state (in this case, the Hawaiian Kingdom), not the domestic laws of the
occupier (the United States).

[Furthermore] adjudication of land transactions in the Hawaiian Islands

would likewise be a matter of Hawaiian Kingdom law and international
law, not domestic U.S. law. See UN Independent Expert, Dr. Alfred M.

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 deZayas’ memorandum to State of Hawai‘i Members of the Judiciary (25
February 2018).

The Independent Expert was making specific reference to Article 43 of the Hague Regulations and
Article 64 of the Geneva Convention. Violations of these provisions would constitute war crimes
as defined under customary international law. U.S. Army Field Manual 27-10, sections 499 and
500 provides guidance on the meaning of these terms:

The term ‘war crime’ is the technical expression for a violation of the law
of war by any person or persons, military or civilian. Every violation of
the law of war is a war crime,” and “Conspiracy…as well as complicity in
the commission of…war crimes are punishable.

What the UN Independent Expert also made clear, and public, was that title to land throughout the
Hawaiian Islands, whether fee-simple, life estates or leases, are invalid as it was conveyed under
United States domestic law and not under and by virtue of the laws of the Hawaiian Kingdom.
From a real estate standpoint, all land titles in Hawai‘i, that were ‘transferred’ under occupation
are defective and, therefore, all mortgages would be void. Economic relief for lenders would be
through a lender title insurance policy, which the borrower purchased for the protection of the
lender at escrow, which covers the debt. See attached specimen, Loan Policy of Title Insurance
issued by Fidelity National Title Insurance Company. Relief for owners is through an owner’s title
insurance policy if purchased at escrow. See attached specimen of Owner’s Policy of Title
Insurance issued by Fidelity National Title Insurance Company.

According to the American Land Title Association, the following are covered risks for an
insurance claim of a defect in title, which include:

(i) forgery, fraud, undue influence, duress, incompetency, incapacity,

or impersonation;
(ii) failure of any person or Entity to have authorized a transfer or
conveyance;
(iii) a document affecting title not properly created, executed,
witnessed, sealed, acknowledged, notarized, or delivered;
(iv) failure to perform those acts necessary to create a document by
electronic means authorized by law;
(v) a document executed under a falsified, expired, or otherwise
invalid power of attorney;
(vi) a document not properly filed, recorded, or indexed in the Public
Records including failure to perform those acts by electronic means
authorized by law; or

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 (vii) a defective judicial or administrative proceeding.

In a foreclosure proceeding before Judge Glenn Hara in the Third Circuit, Wells Fargo Bank, N.A.,
v. Kawasaki, case no. 11-1-106, on 15 June 2012, Mr. Dexter Kaiama, an attorney, appeared
specially for the purpose of contesting jurisdiction, and argued that the Hawaiian Kingdom
continues to exist as a State under international law. I am providing Defendant Kawasaki’s Motion
to Dismiss. Mr. Kaiama relied on State of Hawai‘i v. Lorenzo, 77 Haw. 219, 221 (1994), where
the Intermediate Court of Appeals (ICA) held,

it was incumbent on Defendant to present evidence [of a] factual or legal

basis for concluding that the Kingdom exists as a state in accordance with
recognized attributes of a state’s sovereign nature.”

The ICA went on to state that the “illegal overthrow leaves open the question whether
the present governance system should be recognized.” at 221, n. 2.

In its motion to dismiss filed with the court under Rule 12(b)(1), Hawai‘i Rules of
Civil Procedure, the defense stated that the:

PLAINTIFF cannot claim relief from the Circuit Court of the Third Circuit
because the appropriate court with subject matter jurisdiction in the
Hawaiian Islands is an Article II Court established and by virtue of Article
II of the U.S. Constitution in compliance with Article 43, 1907 Hague
Convention IV (36 (U.S. Stat. 2277), and pursuant to two sole-executive
agreements entered into between President Cleveland and Queen
Lili‘uokalani.

During the oral hearing Mr. Kaiama argued:

I have been arguing, Your Honor, this motion before judges of the courts
of the circuit court and district courts throughout the State of Hawaii, and
nearly—and probably over 20 times, and in not one instance has the
plaintiff in the cases challenged the merits of the executive agreements to
show that either it’s not an executive agreement or that the executive
agreements have been terminated.

See attached Wells Fargo Bank, N.A., v. Kawasaki transcripts, 15 June 2012, p. 9, lines 17-24.

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Judge Hara responded,

in my mind, what you’re asking the court to do is commit suicide, because

once I adopt your argument, I have no jurisdiction over anything. Not only
these kinds of cases where you may claim either being part of—being…a
citizen of the kingdom, but jurisdiction of the courts evaporate. All of the
courts across the state, from the supreme court down, and we have no
judiciary. I can’t do that. See id., p. 13, lines 9-17.

According to the International Criminal Court two elements must be present for a person to incur
criminal liability for war crimes. First: the conduct took place in the context of and was associated
with an international armed conflict; and, second, the perpetrator was aware of factual
circumstances that established the existence of an armed conflict. See attached Elements of Crimes,
International Criminal Court, Article 8—War crimes, at 13. “The term ‘international armed
conflict’ includes military occupation.” See id., n. 34. With respect to these two elements of war
crimes:

(a) There is no requirement for a legal evaluation by the perpetrator as to

the existence of an armed conflict or its character as international or
non-international;
(b) In that context there is no requirement for awareness by the perpetrator
of the facts that established the character of the conflict as international
or non-international;
(c) There is only a requirement for the awareness of the factual
circumstances that established the existence of an armed conflict that
is implicit in the terms “took place in the context of and was associate
with.” See id., at 13.

Judge Hara’s statement, made in open court, appears to have been made with an “awareness of the
factual circumstances that established the existence of an armed conflict,”, which would come
from his reading of the motion to dismiss, between the Hawaiian Kingdom and the United States.
The defendant in this case, Mrs. Elaine Kawasaki, was subsequently evicted from her home in
Hilo through extrajudicial proceedings. The United Nations Independent Expert concluded in his
memorandum, “the courts of the State of Hawaii must not enable or collude in the wrongful taking
of private lands.” See UN Independent Expert Memorandum, p. 2.

On 17 September 2014, Professor Williamson Chang of the University of Hawai‘i William S.

Richardson School of Law reported allegations of war crimes committed by officials of the State
of Hawai‘i to the United States Attorney General Eric Holder. Professor Chang made the report in
accordance with 18 U.S.C. §4—Misprision of felony, because under federal statute war crimes

8
include felonies. The report was acknowledged by the Department of Justice and assigned ID
number 2909292. I am providing a copy of the letter from Professor Williamson Chang to U.S.
Attorney General Eric Holder, Jr., dated 17 September 2014.

I and Council member Ruggles are unaware of whether an investigation has been launched.

It was brought to the attention of Council member Ruggles by Dr. Sai that in light of the flagrant
violations of the Hague Regulations and Geneva Conventions by the State of Hawai‘i, he met with
Mike McCartney, then and now, Chief of Staff for Hawai‘i Governor David Ige, at the Executive
Chambers, State Capital, on three separate occasions. Council member Ruggles was informed that
each of those meetings lasted more than an hour and a half. Dr. Sai informed her that he also
provided Mr. McCartney with memorandum, dated 2 July 2015, relating what they discussed and
a proposed resolution to the problem which would enable the State of Hawai‘i to comport its
behavior with international humanitarian law. I am providing a copy of Dr. Keanu Sai’s Report on
Military Government (2 July 2015). Council member Ruggles was not aware that the Governor’s
office was also made aware of the allegations of war crimes committed by State of Hawai‘i
officials.

Dr. Sai also informed Council member Ruggles that he had held meetings on the same topic with
former Council member Danny Paleka and Stan Sitko, Hawai‘i County Real Property Tax
Administrator. I am providing a copy of the email from Dr. Sai to Council member Paleka (8 April
2016). It has been provided by Dr. Sai to Council member Ruggles. Dr. Sai also shared with
Council member Ruggles that he also recalls Mr. Sitko telling him that he will need to leave the
meeting with Council member Paleka because he needs to “pillage homes.” Dr. Sai took that to
be a reference to County of Hawai‘i foreclosure proceedings for delinquent property taxes because
that was one of the alleged war crimes being discussed. Council member Ruggles was also told by
Dr. Sai that he met with Council members Maile David and Karen Eoff, Mayor Harry Kim, and
with Hawai‘i State Senators Kaiali‘i Kahele and Brickwood Galuteria. Council member Ruggles
was not aware that other Council members and State legislators were also made aware of the
allegations of war crimes committed by State of Hawai‘i officials.

On 18 July 2018, Council member Ruggles received by email a press release from the Hawaiian
Council of Regency that a Petition for Emergency Writ of Mandamus had been filed in U.S. District
Court for the District of Columbia in Washington, D.C., under case no. 1:18-cv-01500, against
President Donald Trump and others. Included as a Respondent is State of Hawai‘i Governor David
Ige. See attached press release email from the Council of Regency dated 18 July 2018 that was
provided to Council member Ruggles.

In his capacity as Chairman of the Council of Regency, Dr. Sai, as the petitioner, is seeking an
order from the U.S. District Court to mandate the President of the United States to comply with

9
Article 43 of the Hague Regulations and Article 64 of the Geneva Convention and begin
administering Hawaiian Kingdom laws as a result of the injuries to protected persons as defined
under the Geneva Convention, which include Hawaiian subjects. Specific alleged violations of the
Hague Regulations and the Geneva Convention appear in paragraphs 169-205. See attached file-
marked copy of the Petition for Emergency Writ of Mandamus, case no. 1:18-cv-01500.

In light of the above, Council member Ruggles formally requests that you, in your capacity as the
Office of Corporation Counsel to assure her that she is not incurring criminal liability under
international humanitarian law and United States Federal law as a Council member for:

1. Participating in legislation of the Hawai‘i County Council that would

appear to be in violation of Article 43 of the Hague Regulations and
Article 64 of the Geneva Convention which require that the laws of the
Hawaiian Kingdom be administered instead of the laws of the United
States;
2. Being complicit in the collection of taxes, or fines, from protected
persons that stem from legislation enacted by the Hawai‘i County
Council, appear to be in violation of Articles 28 and 47 of the Hague
Regulations and Article 33 of the Geneva Convention which prohibit
pillaging;
3. Being complicit in the foreclosures of properties of protected persons
for delinquent property taxes that stem from legislation enacted by the
Hawai‘i County Council, which would appear to violate Articles 28
and 47 of the Hague Regulations and Article 33 of the Geneva
Convention which prohibit pillaging, as well as in violation of Article
46 of the Hague Regulations and Articles 50 and 53 of the Geneva
Convention where private property is not to be confiscated; and
4. Being complicit in the prosecution of protected persons for committing
misdemeanors, or felonies, that stem from legislation enacted by the
Hawai‘i County Council, which would appear to violate Article 147 of
the Geneva Convention where protected persons cannot be unlawfully
confined, or denied a fair and regular trial by a tribunal with competent
jurisdiction.

Until Corporation Counsel is able to assure, under applicable laws, that Council member Ruggles
is not incurring criminal liability under international humanitarian law, she refrain from
participating in proposing, drafting, or legislation by the Hawai‘i County Council. She will
continue to serve her constituents as a Council member on all other matters that do not conflict
with the subjects of her request to the Corporation Counsel. As soon as Corporation Counsel can
assure her that no criminal liability is being incurred, she will return to her legislative duties.

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This action taken by Council member Ruggles is her attempt to comply with the terms of her oath
of office in which she swore to support, and defend, the Constitution of the United States.

She would like to be clear that this action, on her part is not, and should not be construed as, a
publicity stunt, but is rather are conscientious acts taken upon the advice of counsel given her
awareness that she has regarding alleged war crimes, and her awareness that other State of Hawai‘i
officials appear to have chosen silence.

If you contend that I have made any misstatements of law or misrepresentations of fact, please
do not hesitate to contact me.

Sincerely,

Stephen Laudig
HBN #8038

cc: State of Hawai‘i Attorney General

United States Attorney General
Office of the Prosecutor, International Criminal Court
United Nations Independent Expert on the Promotion of a Democratic and Equitable
International Order

Enclosures as stated:

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