|Synopsis History||"Lance Paul Larsen vs. the Hawaiian Kingdom"
Permanent Court of Arbitration, The Hague
|News Arbitral Log|
On January 17, 1893, a self-declared "committee of safety" committed the crime of high treason as defined under §1, Chapter VI of the Hawaiian Penal Code, by unlawfully deposing Her Majesty Queen Lili'uokalani and her Cabinet and proclaimed the establishment of a provisional government to exist until terms of annexation with the United States of America have been negotiated and agreed upon. 1 In violation of treaties and principles of customary international law, the United States diplomat assigned to the Hawaiian Kingdom, namely Minister John L. Stevens, conspired with these traitors and authorized American troops to land on Hawaiian soil against the protest of Queen Lili'uokalani and her cabinet, in order to aid in these treasonous actions. 2
Her Majesty Queen Lili'uokalani Protests Landing of American Troops
On that same day, when informed of the risk of bloodshed with resistance toward the American troops, Her Majesty Queen Lili'uokalani issued a statement "temporarily" yielding her executive authority as the constitutional Monarch to the United States government, by its President, as a fact finder, rather than to the provisional government. Her letter of protest stated, "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 provisional government. Now to avoid any collision of armed forces, and perhaps the loss of life, I do this under protest and impelled by said force yield my authority until such time as the Government of the United States shall, upon 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." 3
United States Violates International Law
In violation of treaties entered between the Hawaiian Kingdom and the United States of America and basic principles of international law, the United States Minister Stevens extended de facto recognition to the provisional government, that was formed by the traitors, without the consent of the Government of the Hawaiian Kingdom, while United States Naval forces secured themselves across the Government building. 4 Thereafter, all Government employees of the Kingdom were forced to sign oaths of allegiance to the provisional government or risk termination of their employment, as American troops fortified their position.
First Attempt to Annex the Hawaiian Kingdom
On January 19, 1893, individuals representing the self-declared provisional government sailed for the United States in a steamer especially chartered for the occasion, and arrived in San Francisco on January 28th, and in Washington on February 3rd. On February 14, 1893, a treaty of annexation was signed by the United States' Secretary of State, under the Harrison administration, on the assumption that it was a popular revolt in the islands and no troops or officers of the United States were present or took any part whatever in the uprising. On February 15, 1893, the treaty of annexation was submitted to the United States Senate for ratification. Thereafter, a change in the Presidency occurred with U.S. President Grover Cleveland succeeding U.S. President Benjamin Harrison.
Upon receipt of the Queen's Protest, newly elected U.S. President Grover Cleveland withdrew from the U.S. Senate the treaty of annexation in March of 1893, and dispatched a representative to Hawai'i to impartially investigate the causes of the so-called revolution and to report the same, before re-submitting the treaty for ratification. 5
Findings of U.S. Presidential Investigation into Illegal Overthrow
The official report of this Presidentially established investigation conducted by former United States Congressman James Blount into the events surrounding the treasonous actions and overthrow of January 17, 1893, concluded that the United States diplomatic and military representatives had abused their authority and were responsible for the change in government, and that these actions were a gross violation of international law. 6
U.S. President Cleveland Addresses U.S. Congress concerning Hawai'i
In a message to the United States' Congress on December 18, 1893, U.S. President Grover Cleveland reported fully and accurately on the basis in part of the Blount report on the illegal acts of the traitors, described such acts as an "act of war, committed with the participation of a diplomatic 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. 7 He stated that "[w]hen our Minister recognized the provisional government the only basis upon which it rested was the fact that the Committee of Safety had in the manner above stated declared it to exist. It was neither a government de facto nor de jure. That is was not in such possession of the Government property and agencies as entitled it to recognition..." 8 In accordance with the principles of international law, the revolutionaries were not successful in obtaining de facto recognition, which failed to alter the legal standing of the Hawaiian Kingdom as a dominion.
He reminded the United States Congress of the special conditions of Queen Lili'uokalani's surrender of her executive authority, where she "...surrendered not to the provisional government, but to the United States. She surrendered not absolutely and permanently, but temporarily and conditionally until such time as the facts could be considered by the United States." President Cleveland further stated that a "substantial wrong has thus been done which a due regard for our national character as well as the rights of the injured people requires we should endeavor to repair" and called for the restoration of the Government of the Hawaiian Kingdom. He also stated "...that the United States could not, under the circumstances disclosed, annex the islands without justly incurring the imputation of acquiring them by unjustifiable methods, I shall not again submit the treaty of annexation to the Senate for its consideration," and "...considering the further fact that in any event the provisional government by its own declared limitation was only 'to exist until terms of union with the United States of America have been negotiated and agreed upon,' I hoped that after the assurance to the members of that government that such union could not be consummated I might compass a peaceful adjustment of the difficulty."
Provisional Government declares itself Republic of Hawai'i
Unable to succeed at this first attempt of annexation the "defunct" provisional government declared itself to be the Republic of Hawai'i on July 4, 1894, by a constitutional convention, and maintained its opposition to the restoration of the Hawaiian Kingdom Government as called for by United States President Grover Cleveland. On the day of the Republic's proclamation, its so-called Minister of Foreign Affairs, Francis M. Hatch, sent a dispatch to U.S. Minister Albert S. Willis, assigned to the Hawaiian Islands, apprising him of the re-formation of the provisional government into the Republic of Hawai'i and naming its President and cabinet. He also requested the U.S. Minister to recognize the government of the Republic of Hawai'i. 9
On the next day U.S. Minister Albert S. Willis responded by acknowledging the receipt of Hatch's dispatch and in conclusion stated that in "...reply to your note reciting the foregoing facts, I have the honor to inform you that I hereby, as far as I have the right so to do, extend to the Republic of Hawai'i the recognition accorded its predecessor, the Provisional Government of the Hawaiian Islands. I do this in the belief that I represent the President of the United States, to whom, as the Executive Chief of the Government, my action in the premises will be promptly submitted for his necessary approval." 10 There was no approval by President Cleveland to the careful wording of the U.S. Minister's response to Mr. Hatch. The Republic of Hawai'i could not acquire any more authority than the defunct provisional government held. 11 As President Cleveland reported to the U.S. Congress of the standing of the provisional, the Republic of Hawai'i also was neither a government de facto nor de jure, but self-proclaimed.
Self-proclaimed Republic of Hawai'i Attempts to Exercise Sovereignty
In a move to give the impression that the Republic of Hawai'i was the internationally recognized government of the Hawaiian Islands, in the face of "organized opposition," it declared martial law on January 7, 1895, arrested Queen Lili'uokalani on the 16th for treason, which later changed to "misprision of treason," and on the 17th convened a military commission for the purpose of a court martial of the Queen and her supporters. On January 24, 1895, while in prison, Queen Lili'uokalani was forced to sign a document "abdicating the throne" for the purpose that all her supporters, who were arrested for the so-called charge of treason, would then be set free. On February 5, 1895, Queen Lili'uokalani was arraigned before this self-proclaimed military tribunal, and the so-called trial began thereafter.
Without getting into the proceedings of this self-proclaimed military court of law and its so-called findings, the actions of the Republic of Hawai'i clearly showed that it was not internationally recognized as the de facto government of the Hawaiian Islands. First and foremost, it was evident that the United States recognized that the Constitutional Government headed by Queen Lili'uokalani remained the de jure government after the unsuccessful revolution of January 17, 1893. 12 Secondly, in accordance with Chapter III of the Hawaiian Penal Code, it was the Hawaiian Kingdom that possessed the "prosecutorial" authority to criminally try any person within the Kingdom, and not the self-proclaimed Republic of Hawai'i, being the successor of the provisional government. Thirdly, only the Queen, by and with the advise of her Privy Council, could suspend the writ of habeas corpus and declare martial law. 13 And, finally, because there was no constitutional provision or law providing for the abdication of the Throne,
the Queen's action held no legal basis without approval of the Legislative Assembly of the Hawaiian Kingdom. 14
Second Attempt to Annex the Hawaiian Kingdom
Notwithstanding the illegal standing of the Republic of Hawai'i, a second attempt of a treaty of annexation was signed in Washington, D.C., on June 16, 1897, between representatives of the self-proclaimed Republic of Hawai'i and the newly elected President of the United States of America, William McKinley, but the treaty remained subject to ratification or approval by the United States Senate.
Queen Lili'uokalani files Protest in U.S. State Department
On June 17, 1897, in Washington, D.C., Her Majesty Queen Lili'uokalani filed in the U.S State Department, a formal protest to the proposed treaty of annexation that attempted to transfer the territory and sovereignty of the Hawaiian Kingdom to the United States of America. 15 She called the second attempt of annexation a "...violation of international law..." and "...by treating with the parties claiming at this time the right to cede said territory of Hawai'i, the Government of the United States receives such territory from the hands of those whom its own magistrates (legally elected by the people of the United States, and in office in 1893) pronounced fraudulently in power and unconstitutionally ruling Hawai'i." Lili'uokalani then called upon U.S. President McKinley "...to withdraw said treaty (ceding said Islands) from further consideration," and asked the "...Senate of the United States to decline to ratify said treaty..."
Her Majesty and 38,554 Hawaiian subjects and Supporters Kill Annexation Treaty
Fortifying Her Majesty Queen Lili'uokalani's second letter of protest were two signature petitions of 38,554 Hawaiian subjects and residents of the Hawaiian Kingdom, combined, from the organizations of the Hawaiian Patriotic League (Hui Aloha ÁŸina) and the Hawaiian Political Party (Hui K”laiÁ”ina), who vehemently protested annexation and whose petitions were filed in the Senate of the United States of America previous to its convening in December of 1897 and in the U.S. State Department. 16 As a result of these protests and other legal questions surrounding the self-proclaimed Republic of Hawai'i, the United States Senate failed to obtain the required 2/3's vote, as mandated by the United States Constitution, to ratify the purported treaty of annexation. The dominion of the Hawaiian Kingdom remained intact.
Declaration of a state of War between the United States and the Kingdom of Spain
On April 25, 1898, after the failed annexation of the Hawaiian Islands, the U.S. Congress adopted a Joint Resolution declaring that a state of war exists the United States of America and the Kingdom of Spain in order "...that the definition of the international status of the United States as a belligerent power may be made known and the assertion of all its rights in the conduct of a public war may be assured." The declaration of war was retroactive to April 21, 1898. The Kingdom of Spain declared war against the United States on April 23, 1898.
International Laws of War activated by First Armed Engagement
On May 1, 1898, United States' Navy's Asiatic Squadron under Commodore Dewey defeats the Spanish Pacific Squadron at the Battle of Manila bay in the Phillipines. The Phillipine Islands were a territorial colony of Spain, together with Guam, in the Pacific Ocean. Once the U.S. Navy made a hostile incursion into the territory of the Kingdom of Spain the international Laws of War were activated, and consequently the warring parties were termed "belligerent States" and non-warring parties were termed "neutral States." The Hawaiian Kingdom and its territorial dominion was a neutral State, whose territory was considered under international law inviolable by any belligerent.
A Neutral State is occupied by a Belligerent State
During the height of armed conflicts with the Kingdom of Spain in both the Pacific Ocean and the Carribean, the U.S. Congress passed a joint resolution purporting to annex the Hawaiian Islands on July 6, 1898, and President McKinley signed it into law on the following day. On August 13, 1898, one day after the so-called annexation ceremonies with the self proclaimed Republic of Hawai'i at Honolulu, the Klondike steamer entered Honolulu Harbor with American troops of the 1st New York Volunteer Infantry and U.S. Volunteer Engineers on board. They were stationed at the first U.S. military post in the Hawaiian Islands called Camp McKinley located below Diamond Head in Waikiki on the Island of O'ahu. This unprovoked incursion by a belligerent State into the territory of a neutral State was a violation of the Laws of War and also the Treaties entered between the Hawaiian Kingdom and the United States.
A Joint Resolution is not a Treaty. The former being a municipal or domestic legislation of the United States passed by a simple majority in each House of Congress, and the latter being a contract between nations under international law, which United States law requires that two-thirds of the Senators present must ratify or approve.
Her Majesty Queen Lili'uokalani Dies without Naming a Successor
On November 11, 1917, Her Majesty Queen Lili'uokalani died without receiving confirmation hearings from the House of Nobles for her named successors to the Throne in accordance with Article 22 of the Constitution of 1864, due to the Legislative Assembly's inability to reconvene since 1886. Notwithstanding the death of Lili'uokalani, the Hawaiian governmental body or body politic remained intact through its officers created by the Constitution and laws of the Kingdom.
U.S. Department of Justice states Congress Could not Annex the Hawaiian Islands
In 1988, ninety years after the purported annexation of the Hawaiian Islands by a Congressional act, a legal opinion was issued by the Office of Legal Counsel, U.S. Department of Justice, stating that it doubts "...that Congress has constitutional authority to assert either sovereignty over an extended territorial sea or jurisdiction over it under international law on behalf of the United States." 17 It states that when Congress annexed the Hawaiian Islands in 1898 by joint resolution, after the Treaty of Annexation was killed in the Senate, the "...Congress was acting in explicit reliance on the procedure followed for the acquisition of Texas...This argument, however, neglected one significant nuance: Hawai'i was not being acquired as a state. Because the joint resolution annexing Texas relied on Congress' power to admit new states, 'the method of annexing Texas did not constitute a proper precedent for the annexation of a land and people to be retained as a possession or in a territorial condition."
The legal opinion quoted Westel W. Willougby, a United States' constitutional scholar, who stated that the "...constitutionality of the annexation of Hawai'i, by a simple legislative act, was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was not denied, but it was denied that this might be done by a simple legislative act...Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force -- confined in its operation to the territory of the State by whose legislature it is enacted." The Office of Legal Counsel concluded that it "...is therefore unclear which constitutional power Congress exercised when it acquired Hawai'i by joint resolution."
U.S. Congressional Acts have no effect in the Hawaiian Islands
The United States Constitution confers absolutely on the United States government the power of making war and treaties. Therefore, the United States government can acquire foreign territory either by conquest or by treaty. 18 There is no record of conquest nor treaty of cession made between the United States of America and the Hawaiian Kingdom.
Without a Treaty of Annexation by the Hawaiian Kingdom, the following "municipal laws" enacted by the United States Congress have no legal effect in the Hawaiian Islands, which is outside of the territorial jurisdiction of the United States of America, namely:
The United States Supreme Court had ruled that the "...municipal laws of one nation do not extend, in their operation, beyond its own territory." 24
- Joint Resolution purporting to annex the Hawaiian Islands, July 7, 1898; 19
- an Act purporting to provide a government for the Territory of Hawai'i, April 30, 1900; 20
- an Act to Amend the Act purporting to provide a government for the Territory of Hawai'i, by establishing an Hawaiian Homes Commission, July 9, 1921; 21
- an Act purporting to admit the State of Hawai'i into the Union, March 18, 1959. 22 and,
- a Joint Resolution apologizing for the United States' participation in the January 17, 1893, illegal overthrow of the Hawaiian Kingdom, November 3, 1993. 23
Existing Treaties between the Hawaiian Kingdom and the United States
The Treaties that do exist between the Hawaiian Kingdom and the United States are the Treaty of Friendship, Commerce and Navigation, 1849, 25 the Convention respecting Commercial Reciprocity, 1875, 26 and the Supplementary Convention respecting Commercial Reciprocity, 1884. 27 Neither Country ended the 1849 Treaty, the 1875 and the 1884 Convention, in accordance with Article XVI of the Treaty and Article V and I of the Conventions, respectively. Instead, Her late Majesty Queen Lili'uokalani called the attempted annexation a violation of these treaties and consequently international law.
U.S. Secretary of State Charles Evans Hughes stated that "...a judicial determination that an Act of Congress is to prevail over a treaty does not relieve the Government of the United States of the obligations established by a treaty...When this obligation is not performed a claim will inevitably be made to which the existence of merely domestic legislation does not constitute a defense and, if the claim seems to be well founded and other methods of settlement have not been availed of, the usual recourse is arbitration in which international rules of action and obligations would be the subject of consideration." 28 The United States Government has solely relied on its domestic legislation as a justification of the transferrance of American sovereignty over the Hawaiian Islands, and has made no attempt to claim otherwise. 29
Treaties are Supreme Law
According to United States constitutional law treaties entered into by the United States are the Supreme law of its land. 30 Therefore, all United States laws enacted by its Congress and imposed in the Hawaiian Islands are inferior to the 1849 Treaty, the 1875 and 1884 Convention and cannot be legally enforced, without violating international law and comity.
Hawai'i an Occupied Nation
Since August 13, 1898, when Camp McKinley was established in Waikiki, the United States claim to the Hawaiian Islands was that of a belligerent State occupying the territorial dominion of a neutral State, and not as a legally annexed territory. For the past 100 years the territory of the Hawaiian Kingdom has been used by the United States as a military training station, which is in direct violation of the Hague Convention V on the Rights and Duties of Neutral States, 1907. "Any violation of the rights and duties of neutral States constitutes an international tort. To the extent to which the law of neutrality has been codified in international conventions, any infraction of such treaties may involve additional liability as amounting to a breach of treaty obligations." 31
Under the international laws of occupation title or sovereignty of the occupied territory does not pass to the occupying power, and if that occupied territory be a neutral State the occupying power is limited by the laws of war as if he were on an enemy's territory. 32 In the words of the United States Basic Field Manual on the Rules of Land Warfare, "it is immaterial whether the government established over an enemy's territory be called a military or civil government. Its character is the same and the source of its authority is the same. It is a government imposed by force, and the legality of its acts is determined by the laws of war."
- See Proclamation of the Committee of Safety, January 17, 1893, Hawai'i Archives; The Executive Documents of the House of Representatives for the Third Session of the 53rd Congress, 1894-95, "Proclamation, inclosure 1 in no. 79," p. 209; The nationalities of the thirteen members of the so-called Committee of Safety are as follows; Henry E. Cooper is an American citizen, F.W. McChesney is an American citizen, W.C. Wilder is a naturalized subject of the Kingdom, C. Bolte is a naturalized subject of the Kingdom, A. Brown is a British subject, W.O. Smith is a subject of the Kingdom, Henry Waterhouse is a subject of the Kingdom, Theo. F. Lansing is an American citizen, Ed. Suhr is a German subject, L.A. Thurston is a subject of the Kingdom, John Emmeluth is an American citizen, W.R. Castle is a subject of the Kingdom, and J.A. McCandless is an American citizen.
- See the Executive Documents of the House of Representatives for the Third Session of the 53rd Congress, 1894-95, "Mr. Blount to Mr. Gresham, no. 17," p. 567
- See Queen Lili'uokalani's Letter of Protest and Yielding of Authority, January 17, 1893, Hawai'i Archives; The Executive Documents of the House of Representatives for the Third Session of the 53rd Congress, 1894-95, p. 453, 586, 866.
- See the Executive Documents of the House of Representatives for the Third Session of the 53rd Congress, 1894-95, "Proclamation of de facto recognition by U.S. Minister, inclosure D," p. 228.
- Ibid., "Mr. Gresham to Mr. Blount," p. 1185.
- Ibid., "Mr. Gresham to Mr. Willis," p. 463.
- Ibid., "President Cleveland's Message to Congress," p. 445.
- The objective test of a de facto government is understood to be in actual control of the governmental machinery of the state and exercising its authority without substantial opposition. Fenwick, International Law, 4th Edition, p. 182.
- See the Executive Documents of the House of Representatives for the Third Session of the 53rd Congress, 1894-95, "Francis Hatch to U.S. Minister Willis, July 4, 1894, Inclosure 4 in No. 65" p. 1374.
- See the Executive Documents of the House of Representatives for the Third Session of the 53rd Congress, 1894-95, "U.S. Minister Willis to Francis Hatch, July 5, 1894, Inclosure 5 in No. 65" p. 1374.
- Nemo dat qui non habet. He who hath not cannot give. Black's Law Dictionary, 6th Ed., p. 1037.
- De jure is defined as right; legitimate; lawful; by right and just title. In this sense it is the contrary of de facto. Black's Law Dictionary, 6th Ed., p. 425.
- See Article 5 of the Hawaiian Constitution, 1864. "The privilege of the writ of Habeas Corpus belongs to all men, and shall not be suspended, unless by the King, when in cases of rebellion or invasion, the public safety shall require its suspension."
- Ibid., Article 80. "Any amendment or amendments to this Constitution may be proposed in the Legislative Assembly, and if the same shall be agreed to by a majority of the members thereof, such proposed amendment or amendments shall be entered on its journal, with the yeas and nays taken thereon, and referred to the next Legislature; which proposed amendment or the next election of Representatives; and if in the next Legislature such proposed amendment or amendments shall be agreed to by two-thirds of all members of the Legislative Assembly, and be approved by the King, such amendment or amendments shall become part of the Constitution of this country."
- See Prints and Photographs Division, #209704, Library of U.S. Congress.
- See Senate Foreign Relations Committee, U.S. Congress, Senate, 55th Congress, U.S. National Archives and Records Administration.
- See Opinions of the Office of Legal Counsel of the U.S. Department of Justice, vol. 12 (preliminary print), 1988, "Memorandum for Abraham D. Sofaer, Legal Advisor, Dept. of State, re: Legal Issues Raised by the Proposed Presidential Proclamation to Extend the Territorial Sea, October 4, 1988," p. 301.
- See "The American Insurance Co. vs. 356 Bales of Cotton," 1 Peters 542 (U.S. Supreme Court)
- See Joint Resolution of Annexation, U.S. Statutes at Large 30 (July 7, 1898): 750-751.
- See Hawai'i Organic Act, U.S. Statutes at Large 31 (April 30, 1900): 41-162.
- See Hawaiian Homes Commission Act, U.S. Statutes at Large 67 (July 9, 1921): 108-115.
- See Hawai'i Statehood Act, U.S. Statutes at Large 73 (March 18, 1959): 4-13.
- See U.S. Apology Resolution, U.S. Public Law 103-150.
- See "The Apollon, Edon. Claimant," 9 Wheat 362 (U.S. Supreme Court)
- See Treaty of Friendship, Commerce and Navigation with the Hawaiian Kingdom, U.S. Statutes at Large 18 (December 20, 1849): 406.
- See Convention of Commercial Reciprocity with the Hawaiian Kingdom, U.S. Statutes at Large 19 (January 30, 1875): 625, at 69.
- See Supplementary Convention to the Convention of Reciprocity with the Hawaiian Kingdom, U.S. Statutes at Large 25 (December 6, 1884): 1399.
- See "Letter from the U.S. Secretary of State to the U.S. Secretary of the Treasury, Feb. 19, 1923," quoted in 5 Green Haywood Hackworth, Digest of International Law, §489, at 194-95 (1943).
- See "Mankichi v. Hawai'i," 192 U.S. Supreme Court 197 (1903); "Fullard Leo v. United States," 331 U.S. Supreme Court 256 (1947).
- See U.S. Constitution, Article VI, §2, in part, to wit: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land..."
- See "International Law," by Georg Schwarzenberger (1949), p. 332.
- See "The Law of War," by Ingrid Detter De Lupis (1989), p. 150; "International Law," by Georg Schwarzenberger (1949), p. 287.
|Synopsis History||"Lance Paul Larsen vs. the Hawaiian Kingdom"
Permanent Court of Arbitration, The Hague
|News Arbitral Log|