By Keokani Kipona Marciel
35% of Those Eligible Voted for American Statehood
The 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 Plebiscite
While 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 Statehood
Why 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 Power
Notwithstanding 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 Occupation
The 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 1959
On 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 Islands
The 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 Hawaiʻi
Under 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 Treaty
While 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 1843
The 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 Kingdom
Under 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.
Ua Mau ke Ea o ka ʻĀina i ka Pono
KA PAIO HANOHANO