THE HAGUE, NETHERLANDS – The acting Government of the Hawaiian Kingdom filed with the Registrar of the International Court of Justice an Application Instituting Proceedings against the Republic of Austria, Barbados, the Kingdom of Belgium, the Republic of Botswana, the Republic of Bulgaria, the Republic of Costa Rica, the Republic of Côte d’Ivoire, Democratic Republic of the Congo, the Kingdom of Denmark, the Republic of Djibouti, the Commonwealth of Dominica, the Dominican Republic, the Arab Republic of Egypt, the Republic of Finland, Gambia, Georgia, the Hellenic Republic of Greece, the Republic of Guinea, the Republic of Guinea-Bissau, the Republic of Haiti, the Republic of Honduras, the Republic of Ireland, the Republic of Kenya, the Kingdom of Lesotho, the Republic of Liberia, the Grand Duchy of Luxembourg, the Republic of Madagascar, the Republic of Malawi, the Republic of the Marshall Islands, the United Mexican States, the Kingdom of the Netherlands, the Kingdom of Norway, the Islamic Republic of Pakistan, the Republic of Paraguay, the Republic of Peru, the Republic of Senegal, the Republic of South Sudan, the Republic of Suriname, the Kingdom of Swaziland, the Kingdom of Sweden, the Swiss Confederation, the Democratic Republic of Timor-Leste, the Togolese Republic, the Republic of Uganda, and the Oriental Republic of Uruguay for treaty violations and serious breaches of peremptory norms. Austria, Belgium, Denmark, Netherlands, Norway, Sweden, and Switzerland have treaties with the Hawaiian Kingdom. All (45) States have accepted the jurisdiction of the Court beforehand, including the Hawaiian Kingdom.
The filing of the Application is directly tied to the Hawaiian Kingdom’s Protest and Demand filed with the President of the United Nations General Assembly on August 10, 2012. The Application is seeking enforcement of the Hawaiian Kingdom’s Demand that States comply with their treaty obligations and obligations under customary international law.
Also submitted with the Application was a Request for the Indication of Provisional Measures of Protection. The request states the “fact that serious breaches of rules of jus cogens have been ongoing for over a century only amplifies the urgent request that the Court indicate provisional measures to protect and preserve the rights of the Hawaiian Kingdom.” The Court is requested to declare that:
a) All member States of the United Nations, which includes the States herein named, in compliance with the duty of non-recognition imposed under Articles 41(1) and 41(2) of the Articles of State Responsibility for International Wrongful Acts, are under an obligation:
1) to recognize the illegality and invalidity of the United States of America’s continued presence in the Hawaiian Kingdom;
2) to refrain from lending any support or any form of assistance to the United States of America with reference to its illegal occupation of the Hawaiian Kingdom;
3) to abstain from entering into treaty relations with the United States of America in all cases whereby the government of the United States of America purports to act on behalf of or concerning the Hawaiian Kingdom;
4) to abstain from sending consular agents to the territory of the Hawaiian Kingdom, purportedly under arrangements and/or agreements with the United States of America, and to withdraw any such agents already there;
5) to abstain from entering into economic, military and any other form of relationship or dealing with the United States of America on behalf of or concerning the Hawaiian Kingdom, which may entrench its authority over the territory;
b) With respect to existing bilateral treaties, member States of the United Nations, which includes the States herein named, in compliance with the duty of non-recognition imposed under Articles 41(1) and 41(2) of the Articles of State Responsibility for International Wrongful Acts, must abstain from invoking or applying those treaties or provisions of treaties concluded by the United States of America on behalf of or concerning the Hawaiian Kingdom, which include and/or involve active intergovernmental co-operation.
c) With respect to multilateral treaties, however, the same rule cannot be applied to certain general conventions such as those of a humanitarian character, the non-performance of which may adversely affect the people of the Hawaiian Kingdom;
d) All member States of the United Nations, which includes the States herein named, in compliance with the duty of non-recognition imposed under Articles 41(1) and 41(2) of the Articles of State Responsibility for International Wrongful Acts, should not result in depriving the people of the Hawaiian Kingdom of any advantages derived from international co-operation. In particular, while official acts performed by the Government of the United States of America on behalf of or concerning the Hawaiian Kingdom since the occupation began on 12 August 1898 are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory.
e) With respect to non-member States of the United Nations, the illegality of the United States of America’s presence in the Hawaiian Kingdom is opposable to all States in the sense of barring erga omnes the legality of a situation which is maintained in violation of international law: in particular, no State which enters into relations with the United States of America concerning the Hawaiian Kingdom may expect the United Nations or its Members to recognize the validity or effects of such relationship, or of the consequences thereof.
The acting Government of the Hawaiian Kingdom designated David Keanu Sai, Ph.D., its Ambassador-at-large, as Agent for these proceedings, and Dexter Ke‘eaumoku Ka‘iama, Esq., its Attorney General, as Deputy Agent. Dr. Sai served as lead Agent for the Hawaiian Kingdom in Larsen v. Hawaiian Kingdom (1999-2001) and presented oral arguments at the Peace Palace on December 7, 8, and 11, 2000. Members of the arbitral tribunal included Professor James Crawford, SC, as presiding arbitrator, with Mr. Gavan Griffith, QC, and Professor Christopher Greenwood, QC, serving as associate arbitrators. Professor Greenwood is now a Judge of the International Court of Justice. Both the Permanent Court of Arbitration and the International Court of Justice are located in the Peace Palace, The Hague, Netherlands.
While in The Hague, Dr. Sai also met with a member of the International Criminal Court’s Information & Evidence Unit at the Court’s headquarters to inquire into the status of the Hawaiian Kingdom’s Referral to initiate an investigation for war crimes. He confirmed that it is still under review and that the Office of the Prosecutor will be in communication shortly.