Na Keokani Kipona Kaʻilikea, Loea Lula HoʻomaluThe presumption of state continuity is like the presumption of innocence. A person is presumed innocent unless and until there is enough evidence to the contrary, beyond a reasonable doubt. Likewise, the sovereignty and independence of a state is presumed to continue unless there is contrary evidence beyond a reasonable doubt. The Hawaiian Kingdom achieved international recognition as a sovereign and independent state in 1843. A person does not carry the burden to prove his or her innocence. Rather, the burden is on the accuser to provide enough evidence to reject that presumption. What evidence is there that the continuity of the Hawaiian Kingdom has been terminated? Did the joint resolution of 1898 terminate the Hawaiian Kingdom? Can a congressional resolution unilaterally terminate another country? If the U.S. Congress adopted a joint resolution to unilaterally annex France tomorrow, would that terminate the continuity of France as a sovereign and independent state? Or would it set the stage for a belligerent occupation? The Hawaiian Kingdom government was seized rather than terminated. Consequently, the governmental infrastructure of the State of Hawaiʻi is actually that of the Hawaiian Kingdom. However, the occupying power is not allowing the Hawaiian Kingdom government to reestablish itself via the laws of occupation. This has gone on now for 126 years and counting. So, is it any surprise that skeptics might perceive a lack of a Hawaiian government in waiting? Is it fair to blame the Lāhui for this? Any perceived lack of a Hawaiian government in waiting does not absolve the occupying power of its failure to produce a bilateral treaty of cession to substantiate its alleged (illegal) annexation of the Hawaiian Kingdom territory. What we are seeing on Mauna Kea is a nucleus of the Hawaiian national body reconstituting itself organically. It is providing a catalyst for revitalization of the Hawaiian national language and heritage. In other words, de-occupation is unfolding from the inside out—as we all know that it won't happen from the outside-in. Eventually, that will grow into de-occupation of the entire country. Of course, that doesn't happen overnight, especially when confronted with the longest belligerent occupation in modern history. In the meantime, there is going to be cognitive dissonance to be resolved through civil discourse—and civil "disobedience" when necessary. In my opinion, the genie is out of the bottle and de-occupation of Hawaiʻi is only a matter of time. How long that will take is anyone's guess. It took 89 years for the British empire to leave India, which is on the same order of magnitude as 126 years (at the time of this writing) of occupation in Hawaiʻi. The reason I think it is only a matter of time is because the evidence that Hawaiʻi is occupied without a treaty of cession is too strong to be overcome. The question is, how much more time can the occupying power continue to buy for itself, especially now that the Lāhui has been awoken by the TMT initiative? Customary International Law for Territorial Cession
3 Comments
By Keokani Kipona Marciel, Professional Registered ParliamentarianUnder general parliamentary law, a change to a previous decision of a deliberative organization can be adopted with previous notice by a majority vote, or without previous notice by a two-thirds vote or a majority of the entire membership. Amendment of bylaws are an exception because they usually require previous notice and a two-thirds vote at a regular meeting (or a convention of delegates for amendment of association bylaws). When previous notice is required to change a previous decision, the amendment is not allowed to exceed the extent of change proposed in the notice. For example, the bylaws of an organization prescribe annual dues in the amount of $20 per person. A member gives previous notice to increase the dues to $30. During consideration of that motion during the next regular meeting, it would be in order to decrease the proposed amount to $25, because it is between the existing amount and the amount proposed in the notice. However, it would not be in order to change the amount to $35, because it exceeds the amount of change originally proposed. Nor would it be in order to decrease the dues to $15, which is below the range between the current amount and the amount proposed in the notice. Likewise, it would not be in order to rescind the bylaw provision entirely, because that exceeds the extent of change proposed in the notice. Rescinding the entire article, for example, would be greater than the amount of change from amending one word in a section of that article. Parliamentary References
Ka Papa Hana Hoʻomalu | Parliamentary Procedure 101Nā Hālāwai Kōmike By Keokani Kipona MarcielPakuhi - Chart Hōʻike Pōkole - SummaryFrom 1783 to 1867 (84 years), the U.S. entered 6 bilateral treaties of cession for the territory of its capital and 49 states (50 possessions). The U.S. Constitution explicitly delegates treaty-making power jointly to the President and Senate, not both houses of Congress. The Treaty of Guadalupe Hidalgo in 1848 completed the territorial annexation of Texas, ratifying its statehood admission by joint resolution in 1845. Unlike Texas in 1845, Hawaiʻi in 1898 was not admitted as a state by the U.S. Instead, it was allegedly annexed as an unincorporated territory. The Newlands Resolution followed two failed attempts, in 1893 and 1897, to ratify a bilateral treaty of cession for Hawaiʻi in the U.S. Senate. Five months after the Newlands Resolution in 1898, the U.S. resumed the custom of bilateral treaties of cession for territorial annexation. From 1898 to 1951 (53 years), the U.S. entered 5 more bilateral treaties of cession for the territory of 8 additional possessions, excluding Hawaiʻi. The Indian Appropriation Act (1871) and Island of Palmas arbitration (1925) required a joint resolution to ratify the treaties of cession for American Sāmoa. Since the cession of American Sāmoa was by chiefs rather than conventional nation-states, it wasn't eligible for an annexation treaty in the U.S. Senate. American Sāmoa has been on the United Nations list of non-self-governing territories since its inception in 1964. From 1783 to 1951 (168 years), the U.S. has entered at total of 11 bilateral treaties of cession for the territory of its 58 possessions, excluding Hawaiʻi and American Sāmoa. 97% (58 out of 60) of territorial possessions claimed by the United States were annexed with 11 bilateral treaties of cession over a period of 168 years. Bilateral treaties of cession between countries other than the United States occur before (Lagos to Great Britain in 1861) and after (France to India in 1956) the Newlands Resolution in 1898. Nā Manaʻo Pani - ConclusionsCustomary international law for territorial cession is prescribed by the self-evident pattern emerging from the complete data set. A congressional joint resolution is a domestic statute incapable of reaching across borders to unilaterally annex a foreign country under international law. The enumerated constitutional power of the U.S. Congress to admit states is limited to U.S. territory acquired by annexation treaty. Statehood admission of Texas by joint resolution in 1845 is not a valid precedent for alleged territorial annexation of Hawaiʻi by joint resolution in 1898. The U.S. claim of territorial annexation of Hawaiʻi by a congressional joint resolution (unilateral declaration) is an unprecedented historical anomaly. The Newlands Resolution has never been followed by the U.S. or other countries as a new precedent set for territorial cession (annexation). Since at least 1783, a bilateral treaty of cession remains a necessary instrument for territorial annexation under customary international law. Crimea was unilaterally seized by Russia in 2014 without a bilateral treaty of cession. The annual War Report published by the Geneva Academy classifies Crimea as a state under belligerent occupation by Russia since 2014. The Hawaiian Kingdom government was compromised by insurgents on 7/1/1887, and remains unlawfully seized since 1/17/1893. The landing of United States troops in Honolulu on August 12, 1898, as a result of the Spanish-American War, violated the neutrality of the Hawaiian Kingdom by using the islands as a base of military operations. The continuity of the Hawaiian Kingdom as a sovereign, independent State is presumed under international law, despite ongoing unlawful seizure of its government under prolonged occupation by the United States. Nā Kūmole - References
Ua Mau ke Ea o ka ʻĀina i ka PonoExploding the Myth of the "50th State"  By Keokani Kipona Marciel 35% of Those Eligible Voted for American StatehoodThe number of those eligible to vote who voted for statehood in 1959 was 132,773. When this number is divided by the 140,744 who voted on the statehood question, the percentage is 94%. When divided by the voter turnout of 171,383, the percentage drops to 77%. When divided by the 183,118 registered voters, the percentage drops to 73%. When divided by the 381,859 people eligible to vote in Hawaiʻi, the percentage drops to 35%. 35% Does Not Constitute a Mandate for a PlebisciteWhile a 35% yes vote (from a 45% turnout) would be acceptable in a domestic election, it does not constitute a mandate for a plebiscite under customary international practice. 65% of Those Eligible Did Not Vote for American StatehoodWhy did 65% of those eligible not vote for statehood in 1959? For some, it could have been a way to boycott the prolonged belligerent occupation of the Hawaiian Kingdom by the US. Others, perceiving correctly that Hawaiʻi would remain occupied regardless of the outcome of the statehood vote, may have decided that it was therefore meaningless to vote on the question. Another possible line of reasoning would be that the actions of registering to vote, then voting in the general election, conducted by an unlawful government during prolonged occupation, would justify its presence. These potential reasons why 65% did not choose statehood are not unlikely given the voter disfranchisement that the Hawaiian population had endured for 72 years since the insurgency began in 1887 (with the so-called "bayonet constitution"). 63% Nonparticipation Does Not Speak Well for the Occupying PowerNotwithstanding the fraudulence of the American statehood vote during belligerent occupation in 1959, under the pretense of a plebiscite, the occupying power cannot absolve itself of responsibility for the 63% nonparticipation by transferring that responsibility to the population of the occupied territory. The 63% nonparticipation reflects adversely—not on the inhabitants of the occupied territory—but on the occupying power for its ineffectiveness in persuading that 63% to register and vote in its unlawful plebiscite. That ineffectiveness, it stands to reason, has everything to do with 72 years of insurgency and belligerent occupation up to that time, stemming from the failure to produce a bilateral treaty of cession between the Hawaiian Kingdom and the United States. Worse, there were two failed attempts by the puppet regime (in 1893 and 1897) to enter a treaty of (illegal) annexation with its parent—they couldn't even achieve that! The result is an untrustworthiness that is accurately reflected in the 63% nonparticipation, which can more appropriately be interpreted as a boycott at the collective gut level, rather than voter apathy. Pretense of a Plebiscite During Prolonged OccupationThe 1959 vote for US statehood purported to be a plebiscite. This is invalid because there were only two choices: become a US state (by voting "yes"); or remain a US territory (by voting "no"). In either case, Hawaiʻi would remain under belligerent occupation by the US due to the absence of a bilateral treaty of cession between the US and the Hawaiian Kingdom. So, with no other choice, the majority of those who voted on the question chose the lesser of the two evils. After 66 years of being prohibited from choosing the top official in control of Hawaiʻi's government, they could now elect the governor. Not included as options on the plebiscite were de-occupation, or the choices for decolonization: independence, free association, and commonwealth. If the organizers of the statehood question were confident that a majority would vote for US statehood (albeit under occupation without a treaty), there would be no need to exclude the aforementioned continuum of options for greater autonomy than joining a federation (US statehood). Why is Hawaiʻi Under Belligerent Occupation?On January 16, 1893, a company of US Marines from the USS Boston, under a false pretext of public safety for American nationals, unlawfully invaded the Hawaiian Kingdom, a neutral nation-state. On the next day, January 17, 1893, the US Marines provided a protectorate for thirteen haole insurgents to unlawfully seize the Hawaiian Kingdom government through a fake revolution, installing a puppet regime calling themselves the "Provisional Government." This insurgent militia immediately submitted a proposed annexation treaty to the United States, but US President Grover Cleveland withdrew it from the US Senate after learning about the illegal overthrow of the Hawaiian Kingdom government. Having failed to obtain an (illegal) annexation treaty with the US, the insurgent militia renamed itself to the "Republic of Hawaii," on July 4, 1894. After a proposed annexation treaty failed for the second time, in 1898, the US Congress enacted a joint resolution to unilaterally seize the Hawaiian Islands, using the Spanish-American War as a pretext. A joint resolution is an agreement between both houses of the legislature in one nation, not between the legislative and executive branches of two nations. Therefore, a congressional joint resolution enacted within a nation is confined to its domestic borders, having no legal force and effect in a foreign nation. This is true under both international law and US constitutional law (as interpreted through customary practice). On June 14, 1900, US Congress passed an organic act, renaming its puppet regime, the "Republic of Hawaiʻi," to the "Territory of Hawaiʻi." However, it was no less a domestic law than the joint resolution of 1898. Therefore, it too did not annex the Hawaiian Islands to the United States, nor did it claim to. Instead, it defined its territory as the islands acquired by the joint resolution, which is legally impossible in lieu of a bilateral treaty of cession. Third Name Change for the Occupation in 1959On August 21, 1959, following the fraudulent plebiscite held on June 27, 1959, US President Dwight Eisenhower signed into law the congressional act, purporting to admit the occupied "Territory of Hawaiʻi" as the "50th State." Hence, the belligerent occupation changed its name for the third time in 67 years, this time to the "State of Hawaiʻi," which is an armed force of the US, pretending to be a lawful government. 1959 Statehood Admission Does Not Claim to Annex the Hawaiian IslandsThe act by which the US government allegedly admitted Hawaiʻi as its "50th State" in 1959 is congressional legislation, domestic in its operation, with no legal force and effect beyond the borders of the 49 US states—all of which were acquired by treaties of cession, unlike Hawaiʻi. Therefore, the statehood admission act of 1959 could no more annex Hawaiʻi than could the joint resolution of 1898 or the organic act of 1900. Nor does the 1959 statehood act claim to annex the Hawaiian Islands. Instead, the "State of Hawaiʻi" defines its territory as that which was in the "Territory of Hawaiʻi." In turn, the "Territory of Hawaiʻi" defined its territory as those islands acquired by the joint resolution. Therefore, due to the impossibility of annexing foreign territory with a joint resolution, the so-called "State of Hawaiʻi" never acquired any territory, nor did any of its three previous incarnations. Consequently, this fake state—as it is accurately referred to today in the Hawaiian Kingdom under belligerent occupation—does not legally exist beyond the borders of the 49 states of the US. With an alleged territory inherited from the joint resolution of 1898, which had no ability to annex the Hawaiian territory, the so-called "50th State" admittedly has no territory. By analogy, one can say that an empty container exists, but it is empty nonetheless.
Texas Not a Valid Precedent for HawaiʻiUnder the US Constitution, the power of Congress is clearly domestic in scope, with no enumerated power to engage directly in foreign affairs. The power to enter treaties is vested jointly in the President and Senate. Therefore, while Congress does have the constitutional power to admit states, it can only do so from territory already annexed through a bilateral international instrument. When Congress adopted a joint resolution to acquire Texas in 1845, it did so as a statehood admission and not as a territorial annexation. The territory of Texas was not annexed until the Treaty of Guadalupe Hidalgo in 1848, ratifying the premature admission of Texas as a state three years earlier. In 1898, US Congress did not adopt a joint resolution to admit Hawaiʻi as a state, as it had done with Texas in 1845. Instead, the joint resolution adopted by Congress in 1898 purported to annex Hawaiʻi as an unincorporated territory, which was without precedent. Nor did it set a new precedent for subsequent territorial annexations by the US and other world powers. Consecutive Domestic Laws and Name Changes Do Not Equal a TreatyWhile a single congressional act of one nation cannot unilaterally acquire the territory of another nation, neither can a series, or sum, of consecutive domestic laws. In the case of Hawaiʻi, the joint resolution of 1898, the organic act of 1900, and the statehood admission act of 1959, cannot be construed by summation as equivalent to a bilateral treaty of cession between the US and the Hawaiian Kingdom, which has never been produced. This is especially true after the two failures to annex Hawaiʻi through a senate treaty for (illegal) annexation in 1893 and 1898. Just as consecutive domestic laws cannot add up to a treaty, neither can the four successive names of the ongoing belligerent occupation of the Hawaiian Islands since January 17, 1893: "Provisional Government," "Republic of Hawaiʻi," "Territory of Hawaiʻi," and "State of Hawaiʻi." Hawaiʻi Already Achieved Statehood in 1843The Hawaiian Kingdom achieved formal recognition of its independence as a sovereign state, on November 28, 1843, through joint proclamation by Great Britain and France. On July 6, 1844, the US formally recognized the Hawaiian Kingdom as a sovereign and independent state. Having secured this international recognition from the three major naval powers of the world at the time, the Hawaiian Kingdom became the first non-European country to enter the Family of Nations. Since that time, a bilateral treaty of cession has never been produced to terminate the Hawaiian Kingdom as a sovereign and independent state. The unlawful seizure of the government, and prolonged occupation of the country, since January 17, 1893, is not a recognized mode of state extinction under international law. Since Hawaiʻi already achieved international statehood in 1843, which has never been lost to a treaty of cession, said statehood of the Hawaiian Kingdom has never ceased to exist. International statehood does not have an expiration date, and therefore does not need to be renewed after a lapse of time. Nor did the 1959 statehood act by the US supersede or replace the statehood already achieved by Hawaiʻi in 1843, since the 1959 statehood admission is merely congressional legislation of the US confined in its operation to the borders of its 49 states. Time Elapsed During Occupation Has Not Extinguished the Hawaiian KingdomUnder international law, there is a recognized mode of state extinction through the passage of time, called prescription or acquiescence. The Hawaiian Kingdom government, through both its legislative and executive branches, never acquiesced to being succeeded by another government. Furthermore, due to the abundant history of protest since the insurgency began in 1887, and since the occupation began in 1893, a prescription claim by the US to the sovereignty and territory of the Hawaiian Kingdom cannot be substantiated under international law. Nor has the US ever made such a claim. The only official claim that the US has ever made for acquiring the sovereignty and territory of the Hawaiian Kingdom, is through the joint resolution of 1898. However, annexation of a foreign country by unilateral declaration, in the form of a congressional joint resolution, has been thoroughly refuted by simple logic and by the foremost scholars on the subject. The pretense of statehood in 1959 occurred 72 years after the insurgency began in 1887, 66 years since the belligerent occupation began in 1893, and 61 years after the pretense of annexation by joint resolution in 1898. This gave the US more than 6 decades to transfer portions of its military and civilian populations into the occupied Hawaiian territory, and to denationalize the national population of the occupied territory through propaganda—actions that are considered war crimes under international law. This process, tantamount to stuffing the ballot box for the statehood vote in 1959, further negate any potential claim by the US to Hawaiian sovereignty and territory through prescription. References
Ua Mau ke Ea o ka ʻĀina i ka PonoBy Keokani Kipona Marciel, Professional Registered Parliamentarian (PRP)Check Your Organization's Procedural ManualDepending on the procedural manual (parliamentary authority) adopted by the organization, if the committee chair fails to call a meeting, it can be called in one of the following three ways, unless the governing documents prescribe otherwise:
What is the Common Thread?Note that if a committee meeting is called by a majority of its members, and if this is at least two people, this satisfies the requirements of common procedural manuals (AIPSC, Demeter, Mason, RONR). Therefore, if the governing documents, procedural manual (e.g., Cannon, Keesey, Lochrie, Riddick), precedents, and custom of the organization are all silent on the matter, a committee meeting called by a majority of its members would be valid under common parliamentary law. However, the organization would not be bound to follow that rule. Parliamentary References
Ka Papa Hana Hoʻomalu | Parliamentary Procedure 101Hōʻoia - To Ratify By Keokani Kipona Marciel, Professional Registered Parliamentarian (PRP) Can actions taken by an organization in violation of its bylaws be ratified? Parliamentary law is clear on this matter, as codified by the following parliamentary authorities.
ExamplesIf the bylaws only provide for admission of new members during regular meetings, such action cannot be taken during a special meeting, then subsequently ratified at the next regular meeting. Why? Provisions in the bylaws are like the fence around a yard, or the borders of a country. If the bylaws only provide for admission of members at regular meetings, to do so at any other type of meeting would be out of bounds. Another reason might be that it would result in a violation of the rights of members who are able to fit regular meetings into their schedule, but not necessarily special meetings occurring on dates between regular meetings. If the membership desires the ability to admit new members during special meetings also, the bylaws could be amended to permit such action. If the bylaws require elections to be by ballot, such action cannot be taken by a different voting method (e.g., voice vote), then subsequently ratified by a ballot vote. Otherwise, it would defeat the purpose of the ballot vote to begin with. The virtue of a ballot vote is that it is a secret vote. People are more likely to express their true choice on a question when casting their vote anonymously. In other words, when they do not have to disclose their choice to the assembly, as would be the case in a voice vote, rising vote, show of hands, or roll call vote. Ballot voting is beneficial during an election, where relationships could be strained if the candidates could see who voted for them or did not vote for them. Those who do not win the election may be discouraged from being a candidate in the future, due to embarrassment from knowing which individuals did not vote for them. The secret ballot also helps prevent a person from voting against their true preference due to peer pressure resulting from having to reveal how they voted. The principle of secret voting by ballot can be as advantageous for a controversial question as it can be for an election. If the bylaws require an election to be by ballot, but there is only one candidate for an office, the secrecy and logistics of balloting become unnecessary. However, a voice vote cannot be taken in lieu of a ballot vote unless this exception is provided for in the bylaws, which is the recommended practice. If the bylaws of an association can only be amended by a convention of delegates, the board cannot amend the bylaws between conventions, then have the action ratified at the next convention. Otherwise, this would violate the right of the majority to rule. Specifically, the majority of convention delegates who adopted the bylaw provisions amended illegally by the board between conventions. Additionally, it would violate the rights of absent members. Specifically, the rights of convention delegates who are necessarily absent from board meetings between conventions. In such a case, if the membership wishes to allow the bylaws to be amended between conventions, the convention of delegates could amend the association bylaws to allow for special conventions in case of emergency between the regular conventions. Alternatively, the bylaws could be amended to delegate authority to the board for amending the bylaws between conventions if necessary. Ka Papa Hana Hoʻomalu | Parliamentary Procedure 101In Contemporary Lāhui Hawaiʻi |
KA PAIO HANOHANO
|
RSS Feed