What is the status of Hawaii under international law today?

A conversation with Prof. Keanu Sai about the overthrow of Hawaii and the modern sovereignty movement

Most people know that some fishy things happened in Hawai‘i in the late 19th Century that led it eventually to become the 50th state of the United States. But what exactly happened and why was it fishy?

Books on the overthrow of Queen Lili’uokalani and the Hawaiian Kingdom, in 1893, and annexation to the U.S. in 1898, have become a small industry. It seems that every year there are a number of new books on these topics.

Despite the abundance of information on these important topics, the average Hawaiian, of whatever ethnicity, still knows comparatively little about what happened.

Stephen Kinzer’s 2007 book, Overthrow: America’s Century of Regime Change from Hawaii to Iraq, brought home to readers that the U.S. overthrow of Hawai‘i, and later annexation, was truly the start of a new imperialistic trend in U.S. foreign policy. Up until that date, the prevailing wisdom in the U.S. had been to maintain a policy of “no foreign entanglements” and to pursue a modest foreign policy when it came to projecting force. This changed dramatically at the end of the 19th Century, however, and Hawai‘i was the first test case of this new aggressiveness toward territorial acquisition beyond the borders of North America.

Since then, the U.S. has become an empire, and not just any empire. It has been for seventy years the most powerful empire the world has ever seen. And, interestingly, it’s an empire that doesn’t like to acknowledge that it is an empire.

Keanu Sai, Ph.D., is an adjunct professor at UH Manoa and a long-time lecturer at Windward Community College on Oahu.

Professor Sai has studied the history of the overthrow, international law, and political science for almost three decades now. He’s been active in educating the public about what happened, and also an active participant in a number of high profile legal battles. I’ve had various discussions with Sai over the last five years, as I’ve been writing a novel about the overthrow and its repercussions in the present day.

We conducted the below interview by email.

Many people know that Hawai‘i was “annexed” to the United States in 1898, but not many people know what this actually means. You and others have argued that the congressional annexation resolution of 1898, which happened after a treaty was considered and rejected by the Senate, was not a legitimate means for the U.S. to acquire Hawai‘i. What are the main problems with what was done?

Sources of international law include treaties, custom, principles, national and international judicial decisions, and scholarly work. Legislation is not a source of international law, but rather is municipal law that is limited in its operation within the territory of the country that enacted it. A treaty, however, is a source of international law, a law between nations, that provides how annexation would take place between countries. Examples of annexations in the United States include the 1803 Louisiana Purchase regarding territories that were formerly French, the 1848 Treaty of Guadalupe Hidalgo regarding territories that were formerly Mexican, and the 1898 Treaty of Paris for territories that were formerly Spanish. These territories are called ceded lands because the lands were annexed by virtue of a treaty of cession.

On the subject of Hawai‘i’s annexation, Senator William Allen, on July 4, 1898, clearly stated why a congressional joint resolution cannot and did not annex Hawai‘i. He stated: “The Constitution and the statutes are territorial in their operation; that is, they cannot 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 cannot 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 (31 Cong. Rec. 6635).” 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 (33 Cong. Rec. 2391).”

In 1936, the U.S. Supreme Court in U.S. v. Curtis-Wright Export, stated: “Neither the [United States] Constitution nor the laws passed in pursuance of it have any force in foreign territory.”

What is your background in international law?

I have a Ph.D. in political science. I specialized in international relations and public law, which includes international law. I also served as agent for the Hawaiian Kingdom in international proceedings at the Permanent Court of Arbitration, The Hague, Netherlands in Larsen v. Hawaiian Kingdom. My education in international relations and law is the same as Quincy Wright and Gerard von Glahn, who are not only political scientists but also recognized experts in international law and the law of occupation.

If we accept that the 1898 Congressional annexation resolution was not a legitimate means for annexation to the U.S., where does that leave Hawai‘i under U.S. and international law?

The international law term for the current state of affairs is “belligerent occupation.” It is triggered by an act of war and the seizing of the power and effective control of the occupied territory from its government. According to President Cleveland, after completing an investigation into the overthrow of the Hawaiian Kingdom government, he told Congress on December 18, 1893: “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, land 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.” He then acknowledged the overthrow of the Hawaiian government the following day when he stated: “By an act of war, committed with the participation of a diplomatic representative of the United States and without the authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown (p. 456).” The President also stated: “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.” The President clearly referred to members of the provisional government [put in place after the overthrow] as “insurgents.”

From January 17, 1893 to 1900, the United States occupied the Hawaiian Kingdom through its proxy, which called itself the provisional government. This proxy changed its name to the so-called Republic of Hawai‘i on July 3, 1894. From 1900 to the present, the United States itself is the occupying power through its political subdivision now called the State of Hawai‘i, which Congress created by legislation in 1959.

Are there any reasonable arguments that the annexation resolution was a legitimate means for annexation?

No.

In 1988, the Office of Legal Counsel, which writes legal opinions on behalf of the U.S. Department of Justice, could not find any legitimate means for the annexation of Hawai‘i. In his opinion, after concluding that only the President has the authority to represent the United States in international law, Douglas Kmiec stated: “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.”

In his opinion, Kmiec cited U.S. constitutional scholar Westel Willoughby who stated, “The constitutionality of the annexation of Hawaii, 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.”

Texas was also annexed to the U.S. by Congressional resolution, in 1845, after being an independent republic for almost a decade. As with Hawai‘i, a proposed treaty of annexation was rejected by the Senate. Was Texas also acquired illegitimately? Or are the facts of these two cases so different (Texas’ populace was overwhelmingly in favor of annexation whereas Hawai‘i’s populace strongly opposed) that there’s no good precedent in the case of Texas?

Texas was not an independent Republic, but rather an insurrection of American citizens seeking to break away from Mexico. To be an independent State, Texas needed the recognition of its independence from Mexico and not by the United States. This recognition would only come about under international law by a treaty of peace.

It took the new United States of America seven years to achieve independence from Great Britain when it declared its independence in 1776. Independence for the former British colonies of North America was recognized under the 1783 Paris Peace Treaty, which stated in Article 1: “His Britannic Majesty acknowledges, the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof.” This is why the 1844 treaty of cession between the self-declared Texas and the United States could not receive ratification by the Senate. In 1836, Texas declared independence, but it didn’t mean they achieved it from Mexico.

When the Congress chose to annex Texas by a joint resolution in 1845, it sparked the Mexican-American War within a few months. Mexico finally agreed to cede the territory of Texas under Article 5 of the 1848 Peace Treaty of Guadalupe-Hildalgo, which ceded all Mexican territory north of the Rio Grande, to include Texas, to the United States. But for the United States’ intervention in 1845, which led to a treaty of peace, Texas would still be an insurgency within the territory of Mexico. Whether Texas could have prevailed and achieve the recognition of its independence from Mexico, we won’t know. What we do know is that the United States acquired the territory of Texas from Mexico under the treaty of peace.

The United Nations Office of the High Commissioner for Human rights surprised many people by issuing a brief memorandum in early 2018 that concluded that Hawaii is indeed occupied territory, a “nation-state that is under a strange form of occupation and a fraudulent annexation.” This seems big in terms of leading to potential recognition of Hawaii’s status as an independent nation-state. Can you explain briefly what led to this important statement?

The UN Independent Expert gained his knowledge of the American occupation through documents that were filed with the United Nations Human Rights Council.

Who filed the documents with the UN HRC?

On May 23, 2016, I filed on behalf of Mr. Kale Kepekaio Gumapac, a complaint with the United Nations Human Rights Council. This is not to say that there were other complaints filed the UN body, but few based their positions as an occupied State. These other complaints, as noted by the U.N. Independent Expert in his 2013 report to the General Assembly, focused on colonization and not belligerent occupation. Paragraph 69(n) states, “The General Assembly may consider revisiting the reality of self-determination in today’s world and refer to the Special Committee on Decolonization and/or other United Nations instances communications by indigenous and unrepresented peoples where they reside, inter alia, in…Hawaii.”

In the 2016 complaint, I specifically referred to this misrepresentation. In the complaint, I state that “the universal periodic review of the United States reflects this deception of labeling Native Hawaiian[s] as an indigenous people and self-determination when Pakistan asked the United States to ‘Respond to the suggestion made by the UN Special Procedures in paragraph 69(n) of doc A/68/284 regarding Alaska, Hawaii and Dakota.”

What is the legal impact of this UN High Commissioner statement, if any? Have there been any follow ups from the UN yet?

The memorandum does not have any legal impact, as it is not a source of international law, but it does have a moral impact through an accurate interpretation of the facts. Under international law, belligerent occupation is a question of fact and not law.

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 message to the Congress, 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.

I am not aware of any follow up by the UN since.

What is your view of the U.S. Department of Interior’s “nation-to-nation” dialogue began in 2014 under former President Obama? This process led to a final rule issued in 2016 that would require that the U.S. recognize a native Hawaiian government, should one be formed, giving Hawaiians a legal status similar to 560 Native American tribes in the U.S. What is the status of this dialogue under President Trump?

Native Hawaiians are not a Native American tribe that needs to be federally recognized. This process is based on American municipal laws and not the international law of occupation. It is synonymous as if the federal government recognized the Sunni people in Iraq as a Native American Tribe.

Just as Iraq was never a part of the United States, despite its government being overthrown in 2003 by the United States, the Hawaiian Islands was never a part of the United States. It continues to be an occupied State. This illegal occupation has had a profound impact on Hawai‘i’s population who have been the subject of denationalization, which is the obliteration of the national consciousness of the occupied State in the minds of its people.

This Dept. of Interior process led in a roundabout way to a Hawaiian group called Na’i Aupuni to form a new draft Hawai‘i constitution, in 2016, which allowed for Hawai‘i to be an independent nation, but also to be a “nation-within-a-nation” like most Native American tribes. Due to various disagreements and legal challenges, the effort to ratify the proposed constitution was suspended in 2016. What is your view of this effort? Will a new constitution that has broad-based support among Hawaiians be helpful in the sovereignty effort?

It doesn’t apply. This is all through American municipal law and not the international law of occupation. It’s another example of the effects of denationalization through Americanization. The United States will need to comply with the law of occupation.

Speaking pragmatically, in terms of the most likely path to some kind of return of sovereignty, is there a case to be made that ratifying the Na’i Aupuni draft constitution, with its allowance for Hawai‘i being governed as an independent state (the Preamble states in part “We reserve all rights to Sovereignty and Self-determination, including the pursuit of independence.”) may be a good path to follow? That is, it seems very unlikely to many observers that the U.S. will in any foreseeable future recognize Hawai‘i as a sovereign state, so why not work on adopting a new Hawaiian Nation constitution that can function both as an operating system for a “nation-within-a-nation” but also for a “Hawai‘i-as-independent-nation”?

When an already existing sovereign and independent State is occupied, it is not incumbent on the occupying State, the United States, to recognize the Hawaiian Kingdom as an independent State. Rather it is the obligation of the occupying State to administer the laws of the Hawaiian Kingdom, the occupied State. The term “independence” and “sovereignty” are synonymous, and it is a political term that refers to the legal order of the occupied State. By overthrowing the government of a sovereign and independent State it does not equate to an overthrow of its legal order, which is its sovereignty. Article 43 of the 1907 Hague Convention, IV, and Article 64 of the Geneva Convention, IV, obligates the occupying State to administer the laws of the occupied State. This was also explicitly stated in the UN Independent Expert’s 2018 communication.

The fact that the occupying State is obligated to administer the laws of the occupied State explicitly recognizes that the independence and sovereignty of the occupied State was intact. In the U.S. Army Field Manual 27–10 that covers the law of occupation, section 358 provides, “military occupation confers upon the invading force the means of exercising control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty.”

Na‘i Aupuni is a creation of United States municipal laws, through its political subdivision the State of Hawai‘i, which are being illegally imposed within the territory of the Hawaiian Kingdom. Therefore, the Na’i Aupuni draft constitution’s preamble, “We reserve all rights to Sovereignty and Self-determination, including the pursuit of independence,” is incoherent and ahistorical. In other words, if the Hawaiian Kingdom remains an independent and sovereign State under occupation, there is no “pursuit of independence.”

To use contemporary examples of occupation such as the American occupation of Iraq and Afghanistan, there was never mentioned that Iraqis and Afghans are pursuing independence. The issue was complying with international humanitarian law and the administration of Iraqi law within Iraqi territory and Afghan law within Afghanistan’s territory.

If not the Na’i Aupuni path to sovereignty, what is your recommendation(s) for achieving a return of sovereignty?

As there is no such thing as the return of sovereignty, it would be returning “control” of Hawaiian sovereignty. This transfer of “control” can only take place once the occupation has come to an end and is evidenced by a treaty of peace. Until then, the United States is obligated to administer the laws of the occupied nation, as it did in Iraq and Afghanistan. Through compliance with the international laws of occupation, called international humanitarian law, the occupation will eventually come to an end. In the meantime, the failure to administer Hawaiian Kingdom law has created a humanitarian crisis that will have to be addressed and remedied before ending the occupation.

You’ve recently been invited to testify before the Maui County Council about land ownership rules. If Maui County decides to incorporate kuleana rights or to recognize the Hawaiian Kingdom’s law more broadly into its land ownership system, what would this look like? How could Maui landowners and businesses operate with sufficient security of ownership under such a system?

Native tenant rights are “vested rights” under Hawaiian law, and, as such, cannot be divested unless by the native tenant themselves. If a person has a valid title to property, whether by life estate, fee-simple or leasehold, native tenant rights cannot divest the owners or trespass on their properties. Native tenant rights, however, would apply to access of gathering from the mountains, access to their piscary rights in the ocean and water rights on the land. Land owners cannot deny access to these rights, which would be regulated by the Hawaiian government as it was in the nineteenth century.

The ownership to landed property originated under Hawaiian Kingdom law since 1845.

More generally, if the Hawaiian Kingdom was restored statewide what would it need to do in order to avoid an economic rupture and serious depression? For example, if a significant number of homeowners and business land owners were to lose their ownership could the new Hawaiian Kingdom function economically?

This is not about “restoring the Hawaiian Kingdom.” The Hawaiian Kingdom is a sovereign State that did not cease to exist. It exists. The issue is complying with international law by administering Hawaiian Kingdom law. In 2014, the Hawaiian Council of Regency proclaimed what constituted the provisional laws of the occupied State. These provisional laws are all laws of today that do not run contrary to the letter, spirit and intent of Hawaiian Kingdom law as it was before the illegal overthrow of the Hawaiian government on January 17, 1893. This proclamation allowed homeowners and businesses to retain title to their property as long as they comply with Hawaiian Kingdom law.

Furthermore, on June 3, 2019, the Council of Regency recognized the State of Hawai‘i and its Counties as the administration of the Occupying Power for international law purposes. This allows the State and Counties to begin to comply with the obligations and duties of an Occupying Power, which includes legislation.

Last, what do you think of a “one island at a time” strategy with respect to sovereignty? Under this approach, military activities would be eliminated gradually on each island, and a new Hawaiian government would be instated in such a way that the existing county, state and federal governments could be replaced. Would this gradual approach be effective?

Again, this is not about sovereignty, but rather compliance with the law of occupation. The transfer of the “control” of sovereignty to the Hawaiian government will not take place until the occupation comes to an end, which will not be any time soon, until all the violations have been rectified. Maui County Council is the first of the counties to begin to comply and should lead the way for the other counties to follow. The next step for the County of Maui is to determine which Maui ordinances are in compliance with Hawaiian Kingdom law and which are not in compliance, and also to ensure that future legislation by the County Council is in compliance with Hawaiian Kingdom law and international humanitarian law.

Public policy, green energy, climate change, technology, law, philosophy, biology, evolution, physics, cosmology, foreign policy, futurism, spirituality