Examining the arguments that the Hawaiian Kingdom continues to exist under international legal principles

This article examines a legal argument advanced by some scholars and Hawaiian sovereignty advocates: that under international law, the Hawaiian Kingdom was never lawfully extinguished and continues to exist, even though the United States exercises de facto control over the territory.

This is a contested position. It is not the consensus view among international law scholars, and it has not been upheld by U.S. courts. However, it is a serious legal argument based on established principles of international law, and it deserves examination on its merits.

The Argument in Brief

The core argument proceeds as follows:

  1. The Hawaiian Kingdom was a recognized sovereign state from 1843 to 1893
  2. The overthrow of 1893 was an act of foreign aggression
  3. Belligerent occupation does not transfer sovereignty under international law
  4. Without a valid transfer of sovereignty, the Hawaiian Kingdom continues to exist
  5. The United States’ presence in Hawaiʻi is, legally, a prolonged occupation

Each element of this argument has a basis in international legal principles. Each is also subject to counterarguments. Understanding both sides clarifies what is actually being debated.

Element 1: The Hawaiian Kingdom Was a Recognized Sovereign State

This element is not seriously disputed.

Between 1843 and 1893, the Hawaiian Kingdom:

  • Maintained diplomatic relations with the United States, Great Britain, France, Germany, Japan, and numerous other nations
  • Entered into treaties as a sovereign state
  • Was a member of the Universal Postal Union (an international organization of sovereign states)
  • Operated embassies abroad and received foreign diplomats

Public Law 103-150 affirms this history: “from 1826 until 1893, the United States recognized the independence of the Kingdom of Hawaiʻi, extended full and complete diplomatic recognition to the Hawaiian Government, and entered into treaties and conventions with the Hawaiian monarchs.”

Under the Montevideo Convention (1933), which codified customary international law on statehood, a state possesses: (a) a permanent population, (b) a defined territory, (c) an effective government, and (d) capacity to enter into relations with other states. The Hawaiian Kingdom clearly met all four criteria.

Element 2: The Overthrow Was an Act of Foreign Aggression

Public Law 103-150 characterizes U.S. involvement in specific terms:

  • U.S. Minister Stevens “conspired with a small group of non-Hawaiian residents”
  • Stevens “caused armed naval forces of the United States to invade the sovereign Hawaiian nation”
  • U.S. forces were positioned “to intimidate Queen Liliuokalani and her Government”

President Cleveland, in 1893, characterized events more bluntly: “By an act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown.”

Under international law, the use of force by one state against another state—particularly to overthrow its government—is aggression. The UN Charter (Article 2(4)) prohibits the “threat or use of force against the territorial integrity or political independence of any state.” While this specific language post-dates 1893, the prohibition against aggression was already recognized in customary international law.

Counterargument: Some argue that the overthrow was primarily a domestic action by Hawaiian residents, with U.S. forces playing a supporting rather than decisive role. However, the Blount Report and Congress’s own findings suggest U.S. involvement was central.

Element 3: Belligerent Occupation Does Not Transfer Sovereignty

This is an established principle of international law, codified in The Hague Regulations of 1907 (which reflected pre-existing custom):

“Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” (Article 42)

“The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” (Article 43)

Key principle: An occupying power administers territory, but sovereignty remains with the displaced sovereign.

This principle was applied after World War II. Germany and Japan were occupied by Allied forces, but neither country ceased to exist as a legal matter. The occupation ended when treaties were concluded and authority was transferred—through legal process, not merely through the passage of time.

Counterargument: Some argue that prolonged acquiescence by the international community, combined with the practical reality of U.S. governance for over a century, has effectively resolved the sovereignty question regardless of how it originated.

Element 4: No Valid Transfer of Sovereignty Occurred

If the overthrow did not itself transfer sovereignty (because an illegal act cannot create legal rights), what about subsequent events?

The Republic of Hawaiʻi (1894–1898): The provisional government proclaimed itself the Republic of Hawaiʻi in 1894. However, this government:

  • Was established by the same individuals who executed the overthrow
  • Was not recognized as legitimate by the displaced sovereign
  • Did not have the authority to cede territory that did not lawfully belong to it

A basic legal principle: one cannot transfer what one does not possess. If the Republic had no legitimate sovereignty, it could not cede sovereignty to the United States.

The Annexation (1898): The treaty of annexation failed to achieve Senate ratification. Annexation occurred through joint resolution—an act of Congress with no Hawaiian counterpart. Under international law, the acquisition of territory typically requires bilateral agreement (treaty) or, historically, conquest followed by formal cession.

A unilateral declaration by one country that it now owns another country’s territory does not, by itself, accomplish that transfer under international law.

The Statehood Vote (1959): The plebiscite offered only statehood or continued territorial status—not independence. The electorate included non-Hawaiians and excluded Hawaiians living elsewhere. Whether this met international standards for self-determination is disputed.

Counterargument: Defenders of the status quo argue that the combined weight of these events—the annexation, territorial governance, statehood vote, and 125+ years of peaceful administration—has created a political reality that international law ultimately must recognize.

Element 5: The Occupation Continues

If the foregoing analysis is correct, then the legal conclusion follows: The United States exercises de facto control over the Hawaiian Islands, but sovereignty under international law continues to reside with the Hawaiian Kingdom.

This is the position advocated by scholars like Dr. Keanu Sai, who has presented this analysis to international bodies including the Permanent Court of Arbitration.

On this view:

  • The United States is an occupying power with obligations under international humanitarian law
  • The Hawaiian Kingdom continues to exist as a legal matter, even though it cannot currently exercise governmental functions
  • The path forward involves compliance with international law regarding occupation and eventual restoration of Hawaiian governance

Why This Argument Matters

Even those who find this argument unpersuasive should understand its basis.

First, it is not a claim invented by contemporary activists. It applies established principles of international law—principles the United States itself has invoked in other contexts—to the specific facts of Hawaiʻi’s history.

Second, it explains why many Hawaiians view sovereignty as a matter of legal right, not mere aspiration. If Hawaiian sovereignty was never lawfully terminated, it continues to exist.

Third, it clarifies what reconciliation might mean. If the United States is, legally, an occupying power, then reconciliation involves addressing that status—not simply providing benefits or recognition within the existing framework.

Fourth, it reframes the debate. The question is not whether Hawaiians “deserve” sovereignty or whether sovereignty would be good policy. The question is whether the United States lawfully acquired Hawaiʻi, or whether the current arrangement rests on what Public Law 103-150 calls an “illegal overthrow.”

The Counterarguments

Fair treatment of this topic requires acknowledging the significant counterarguments:

Prescription and acquiescence: Some scholars argue that prolonged exercise of authority, combined with lack of effective challenge, can cure original illegality. Over 130 years of U.S. administration may have “ripened” into legitimate sovereignty.

Practical governance: International law, some argue, must ultimately recognize practical realities. A legal theory that the Hawaiian Kingdom still exists, despite having no functioning government for 130 years, may be legally coherent but practically meaningless.

Population change: The demographic composition of Hawaiʻi has changed dramatically since 1893. Any restoration of Hawaiian governance would need to address the rights of the majority of residents who are not Native Hawaiian.

U.S. constitutional structure: Within U.S. law, the Constitution’s Supremacy Clause and the admission of Hawaiʻi as a state create a legal framework that does not accommodate alternative sovereignty claims, regardless of how those claims might be viewed under international law.

Lack of international enforcement: Even if the legal argument is correct, there is no international mechanism to compel the United States to change its position.

What This Means

The legal status of Hawaiʻi under international law is genuinely contested. Reasonable scholars disagree.

What is not contested:

  • The Hawaiian Kingdom was a recognized sovereign state
  • The overthrow involved U.S. military and diplomatic personnel
  • The U.S. Congress has characterized the overthrow as “illegal”
  • Native Hawaiians “never directly relinquished their claims to their inherent sovereignty”

Whether these facts mean Hawaiʻi is “not a U.S. state under international law” depends on how one weighs the competing legal principles and the practical realities that have developed over 130 years.

The argument deserves serious engagement. Dismissing it as fringe or frivolous requires ignoring both the legal principles at stake and the United States government’s own acknowledgments.

Sources: Hague Regulations of 1907; Montevideo Convention (1933); Public Law 103-150; Blount Report (1893); President Cleveland’s Message to Congress (1893); UN Charter; works by Dr. Keanu Sai on the Hawaiian Kingdom under international law

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