THE UNITED STATES IS PRECLUDED FROM LEGISLATING BEYOND ITS OWN TERRITORIAL BORDERS
According to Born, “American courts, commentators, and other authorities understood international law as imposing strict territorial limits on national assertions of legislative jurisdiction.” Furthermore, in Rose v. Himely, the U.S. Supreme Court illustrated this view by asserting, “that the legislation of every country is territorial;” and in The Apollon, the Court stated that the “laws of no nation can justly extend beyond its own territory” for it would be “at variance with the independence and sovereignty of foreign nations.” The Court also explained, “however general and comprehensive the phrases used in our municipal laws may be, they must always be restricted in construction, to places and persons, upon whom the legislature have authority and jurisdiction.”
NO TREATY OF ANNEXATION WAS EVER PASSED BY U.S. CONGRESS TO EXTINGUISH THE EXISTENCE OF THE KINGDOM OF HAWAII
There were two attempts to introduce a treaty of annexation before the U.S. Congress first in 1893, then again in 1897. Both failed in Congress (see Exhibit 1-2), attached hereto. The history books must be corrected to reflect the real facts. There never was any annexation of the Kingdom of Hawaii. As such, the Kingdom of Hawaii continues to exist (see Hague decision inLarsen v. Kingdom of Hawaii, supra), notwithstanding the unlawful military occupation of the Kingdom of Hawaii by the U.S.
JOINT RESOLUTION BY U.S.CONGRESS IN 1898 IS INEFFECTIVE AS KINGDOM
WAS UNDER THE PROTECTION OF THE PRESIDENT THUS KINGDOM OF
HAWAII CONTINUES TO EXIST
President Cleveland had already entered in an agreement to restore the Kingdom of Hawaii government prior to Congressional efforts to take Hawaii. Because Cleveland retained the executive power of Liliuokalani, the successor government, Republic of Hawaii, had no legal standing to attempt to cede any Hawaiian lands to the U.S. by way of a joint resolution. Further, Cleveland never authorized ceding of lands to either the Provisional government or the Republic of Hawaii. Neither successor government could have ceded Hawaii lands because they had nothing to cede. Two attempts to secure a treaty of annexation failed in Congress. Although a Joint Resolution to annex Kingdom of Hawaii to the United States was passed in Congress, such measure has no legal force and effect. First, the Kingdom of Hawaii was under the protection of President Cleveland pursuant to the Executive Agreements. Second, there is no constitutional authority under the U.S. Constitution that authorizes Congress to annex a territory by way of joint resolution, as opposed to a treaty of annexation (that failed twice in Congress). Third, the Provisional government and Republic of Hawaii under Kingdom law were traitors under Hawaiian Kingdom law, and had no legitimate claim to Lands of the Kingdom of Hawaii.
In 1898, the U.S. Congress, in an act of desperation, in violation of the U.S. Constitution and further in violation of and also contrary to international law, passed a joint resolution. Said resolution purportedly claimed annexation of the Kingdom of Hawaii; it falsely claimed then and still continues to claim, without merit, the extinction of the Kingdom of Hawaii.
However, the facts reveal that the Congress failed at two different points in time in 1893 and 1897, thus was never able to pass a law, nor to approve any treaty of annexation of the Kingdom of Hawaii, contrary to many fictitious commentaries throughout history who claim that Kingdom of Hawaii was annexed. Nothing can be farther from the truth. A careful examination will reveal that there is no provision whatsoever in the U.S. Constitution that allows for annexation of any foreign country, including the Kingdom of Hawaii, by the United States by use of a joint resolution resolution. Any attempt to declare otherwise has no merit. In short, the passage of the joint resolution was simply a political ploy to dupe others into falsely believing the Kingdom of Hawaii was annexed to the U.S., when it was not.
ALL EVENTS OCCURING AFTER LILIUOKALANI ASSIGNMENT ARE INEFFECTIVE AND HAS NO LEGAL FORCE AND EFFECT
The separation of powers doctrine does not allow any U.S. branch of government to encroach upon the duties and responsibility assigned to the other branches.
When Liliuokalani yielded her executive power to the U.S. President, he was charged to faithfully carry out the terms of the Executive Agreements on her behalf. That same power still rests with the President today. Other branches of government cannot encroach. It is important to emphasize that all of the events described earlier, had no effect whatsoever on the executive power entrusted to the President. Any events occurring after the Liliuokalani assignment to President Cleveland had no legal force and effect whatsoever. Any actions by alleged successor governments of the Kingdom of Hawaii, or by Congress, or by anyone else, is a direct encroachment on the powers of the President.
NO STATE LAW CAN SUPERCEDE EXECUTIVE AGREEMENTS
The State of Hawai`i’s may allege a claim to territorial jurisdiction under HRS 701-106(1)(a). However, it is in direct conflict with the 1893 Executive Agreements and the judicial precedence set in three U.S. Supreme Court decisions pursuant to Belmont, supra (1937), Pink, supra, (1942), and Garamendi, supra (2003), which is in violation of the Supremacy clause.
Since the United States is a Federal government, States within the Federal Union are subject to the supremacy of Federal laws and treaties, in particular, executive agreements. U.S. constitution, article VI, clause 2, provides:
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; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding (emphasis added).
In Belmont, supra and Pink,supra, the Court gave effect to the express terms of an executive agreement that extinguishes all underlying claims of relief sought under State law. TheLili`uokalani assignment mandates the President to administer Hawaiian Kingdom law until the Hawaiian Kingdom government can be restored as mandated by the Agreement of restoration. Instead, the State of Hawai`i was established by an Act of Congress in 1959, which is an encroachment on the executive power of the President, and the recognized principle of the “exclusive power of the President as the sole organ of the federal government in the field of international relations,” (emphasis added).
In Belmont, supra, the U.S. Supreme Court stated that:
no state policy can be found to legally supersede an executive agreement between the federal government and a foreign country. The external powers of the U.S. government can be exercised without regard to State laws.
The Lili`uokalani Assignment and the Agreement of Restoration are Federal matters under the exclusive authority of the President by virtue of Article II of the U.S. Constitution. TheLili`uokalani Assignment and the Agreement of Restoration divests this legislative body from exercising subject matter jurisdiction over such matters.
MILITARY OCCUPATION BY THE UNITED STATES DOES NOT EXTINGUISH THE SOVEREIGN STATE OF THE KINDGOM OF HAWAII
Let us address the question on whether or not the Hawaiian Kingdom status as a sovereign state was extinguished after its government was overthrown by U.S. troops on January 17th 1893. As a subject of international law, statehood of the Hawaiian Kingdom can only be measured and determined by the rules of international law and not the domestic laws of any State to include the United States and the Hawaiian Kingdom.
According to Professor Crawford, a well recognized international law scholar, “A State is not necessarily extinguished by substantial changes in territory, population or government, or even, in some cases, by a combination of all three.” In particular, military “occupation does not extinguish the State pending a final settlement of the conflict. And, generally, the presumption—in practice a strong presumption—favors the continuity and disfavors the extinction of an established State.” Professor Wright, a renowned scholar in U.S. foreign relations law, states that, “international law distinguishes between a government and the state it governs.” Wright says that:
A state may continue to be regarded as such even though, due to insurrection or other difficulties, its internal affairs become anarchic for an extended period of time;” and “Military occupation, whether during war or after an armistice, does not terminate statehood (emphasis added)
Therefore, a sovereign State would continue to exist despite its government being overthrown by military force. Two contemporary examples illustrate this principle of international law, including the overthrow of the Taliban (Afghanistan) in 2001 and of Saddam Hussein (Iraq) in 2003. The former has been a recognized sovereign State since 1919, while the latter since 1932. Further, Professor Dixon explains:
If an entity ceases to possess any of the qualities of statehood…this does not mean that it ceases to be a state under international law. For example, the absence of an effective government in Afghanistan and Iraq following the intervention of the USA did not mean that there were no such states, and the same is true of Sudan where there still appears to be no entity governing the country effectively. Likewise, if a state is allegedly ‘extinguished’ through the illegal action of another state, it will remain a state in international law.
According to Professor Marek, “the legal order of the occupant is…strictly subject to the principle of effectiveness, while the legal order of the occupied State continues to exist notwithstanding the absence of effectiveness [e.g. no government]. …[Occupation] is thus the classical case in which the requirement of effectiveness as a condition of validity of a legal order is abandoned.” Referring to the United States’ occupation of the Hawaiian Kingdom in his law journal article, Professor Dumberry states:
the 1907 Hague Convention protects the international personality of the occupied State, even in the absence of effectiveness. Furthermore, the legal order of the occupied State 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.
In the case of Kingdom of Hawaii, it remained protected under the power of the Executive Branch pursuant to the terms of the Executive Agreements. Said Agreements remain under the protection of the current President to this very day. Therefore, although the occupation continues to the present day, the Kingdom of Hawaii continues to exist as a sovereign state. TheLili`uokalani Assignment and the Agreement of Rrestoration are Federal matters under the exclusive authority of the President by virtue of Article II of the U.S. Constitution. Accordingly, this legislative body cannot exercise subject matter jurisdiction without violating the Supremacy Clause and the separation of powers doctrine under the U.S.Constitution.
CONCLUSION
The Lili`uokalani Assignment and the Agreement of Restoration, being Executive Agreements, were entered into under the sole authority of the President in foreign relations. The proper authority rests in the Executive Branch. Only the President reserves the proper authority to resolve this controversy. This legislative body does not have such authority. The legislative body cannot usurp or intervene when the Executive Agreements are reserved to the President. Under the separation of powers doctrine, the question of which branch reserves the power to conduct foreign affairs, it is clearly the President.
In short, we strongly urge this legislative body to drop this bill and allow the proper branch of government to address these matters described above. Thank you for this opportunity to share our concerns on SB 1520.
Acknowledgement to Louis Buzzy Agard, John M. Agard, Keanu Sai, Dexter Kaiama, Kale Gumapac, Sol Naluai, Lehua Kinilau-Cano, Tracy Tamanaha, Mary Ann Saindon, Lynette & Franklin Valdez and many others
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