|Synopsis History||"Lance Paul Larsen vs. the Hawaiian Kingdom"
Permanent Court of Arbitration, The Hague
|News Arbitral Log|
Hawaiian Kingdom: A Neutral Country
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The Hawaiian Kingdom, as an independent State, was an influential player in the formation of the first principles of international law as it related to neutrality and the rights of national vessels during war. As a result of the Crimean War (1853-1856) between Russia and the Ottoman Empire, the governments of England and France, prior to their impending involvement, each issued formal Declarations on March 28, 1854, and March 29, 1854, respectively, that declared neutral ships and goods would not be captured. Both Declarations were later delivered to the Hawaiian Kingdom government by the British and French Commissioners resident in the Hawaiian Islands on July 7, 1854.
Accompanying the British correspondence to the Hawaiian Government that provided a copy of the Declaration of Neutral Rights was a copy of Her Britannic Majesty's Privy Council Resolution of April 15, 1854, that expanded upon the rights of neutral States. The resolution provided, in part,
"Now it is this day ordered by and with the advice of Her Privy Council, that all vessels under a neutral or friendly flag, being neutral or friendly property, shall be permitted to import into any port or place in Her Majesty's dominions all goods and merchandise whatsoever, to whomsoever the same may belong; and to export from any port or place in Her Majesty's dominions to any port not blockaded, any cargo or goods, not being contraband of war, or not requiring a special permission, to whomsoever the same may belong."
Knowing of the breakout of the Crimean War, His Majesty King Kamehameha III formally proclaimed the Hawaiian Kingdom as a Neutral State with its territorial jurisdiction extending one marine league (three miles) from the coasts of each of its islands on May 16, 1854.
On June 15, 1854, in Privy Council Assembled, the Committee on the National Rights in regards to prizes had delivered its report. His Excellency Robert C. Wyllie presented the report of the committee and the following resolution was passed and later made known to the Representatives of the Nations who were at war.
"Resolved: That in the Ports of this neutral Kingdom, the privilege of Asylum is extended equally and impartially to the armed *neutral vessels and prizes made by such vessels of all the belligerents, but no authority can be delegated by any of the Belligerents to try and declare lawful and transfer the property of such prizes within the King's Jurisdiction; nor can the King's Tribunals exercise any such jurisdiction, except in cases where His Majesty's Neutral Jurisdiction and Sovereignty may have been violated by the Captain of any vessel within the bounds of that Jurisdiction."
* - the term neutral must be construed to be a misprint by the recorder of the Privy Council. Subsequent communications and resolutions refer to the word national and not neutral when referring to this resolution of June 15, 1854.
On July 7, 1854, the British Consul General to the Hawaiian Kingdom had sent a dispatch to the Minister of Foreign Affairs in regards to an interpretation of the Privy Council Resolution of June 15, 1854, concerning "armed national vessels and prizes." The French Commissioner also requested clarification. These dispatches were read in Privy Council assembled on July 17, 1854, and the following resolutions were passed.
"Resolved: That by the words armed national vessels and prizes in the Resolution of the 15th June, are meant only vessels regularly organized and Commissioned on national account, and what prizes they may make; and that that Resolution does not extend the privileges of Asylum in the ports of this Kingdom to vessels armed on private account or the prizes taken by them, whatever may be the flag under which such vessels may sail: Therefore all Privateers and prizes made by them are hereby prohibited from entering the Ports of this Kingdom, unless in such circumstances of distress as that their exclusion would involve a sacrifice of life, and then only, under special permission from the King, after proofs to His Majesty's satisfaction , of such circumstances of distress.
Resolved: That the communications of the Representatives of Great Britain and France, be published in the Polynesian of Saturday next; and that the Resolution of this day relating to Privateers, be published every week during the War, under the Resolution of the 15th June last."
On December 6, 1854, the U.S. Commissioner assigned to the Hawaiian Kingdom, His Excellency David L. Gregg, sent the following dispatch to the Hawaiian Kingdom government regarding the recognition of neutral rights. The correspondence stated, in part,
"...I have the honor to transmit to you a project of a declaration in relation to neutral rights which my Government has instructed me to submit to the consideration of the Government of Hawai┴i, and respectfully to request its approval and adoption. As you will perceive it affirms the principles that free ships make free goods, and that the property of neutrals, not contraband of war, found on board of Enemies ships, is not confiscable.
These two principles have been adopted by Great Britain and France as rules of conduct towards all neutrals in the present European war; and it is pronounced that neither nation will refuse to recognize them as rules of international law, and to conform to them in all time to come.
The Emperor of Russia has lately concluded a convention with the United States, embracing these principles as permanent, and immutable, and to be scrupulously observed towards all powers which accede to the same." (emphasis added)
On January 12, 1855, the U.S. Commissioner also sent another dispatch to the Hawaiian Government that contained a copy of the July 22, 1854 Convention between the United States of America and Russia embracing certain principles in regard to neutral rights.
After careful review of the U.S. President's request, the Hawaiian Kingdom Government, by His Majesty King Kamehameha IV in Privy Council, passed the following resolution on March 26, 1855.
"Resolved: That the Declaration of accession to the principles of neutrality to which the President of the United States invites the King, is approved, and Mr. Wyllie is authorized to sign and seal the same and pass it officially to the Commissioner of the United States in reply to his dispatches of the 6th December and 12th January last."
Following the Privy Council meeting on the same day, His Excellency Robert C. Wyllie signed the Declaration of Accession to the Principles of Neutrality as requested by the United States President and delivered the same to the American Commissioner to the Hawaiian Kingdom, His Excellency David L. Gregg. The Declaration provided, in part,
"And whereas His Majesty the King of the Hawaiian Islands, having considered the aforesaid invitation of the President of the United States, and the Rules established in the foregoing convention respecting the rights of neutrals during war, and having found such rules consistent with those proclaimed by Her Britannic Majesty in Her Declaration of the 28th March 1854, and by His Majesty the Emperor of the French in the Declaration of the 29th of the same month and year, as well as with Her Britannic Majesty's order in Council of the 15th April same year, and with the peaceful and strictly neutral policy of this Kingdom as proclaimed by His late Majesty King Kamehameha III on the 11th May 1854, amplified and explained by Resolutions of His Privy Council of State of the 15th June and 17th July same year, His Majesty, by and with the advice of His Cabinet and Privy Council, has authorized the undersigned to declare in His name, as the undersigned now does declare that His Majesty accedes to the humane principles of the foregoing convention, in the sense of its III Article."
On April 5, 1855, His Majesty King Kamehameha IV, successor in office to His late Majesty King Kamehameha III, ratified the 1852 Treaty with the Kingdom of Sweden and Norway which included the rights of neutrality. Article XV provides,
"All vessels bearing the flag of Sweden and Norway in time of war shall receive every possible protection, short of actual hostility, within the ports and waters of His Majesty the King of the Hawaiian Islands; and His Majesty the King of Sweden and Norway engages to respect in time of war the neutral rights of the Hawaiian Kingdom, and to use his good offices with all other powers, having treaties with His Majesty the King of the Hawaiian Islands, to induce them to adopt the same policy towards the Hawaiian Kingdom."
Similar provisions of neutral rights of the Hawaiian Kingdom were also made a part of the treaties with Spain (1863, Article XXVI), Germany (1879, Article VIII) and Italy (1869, Additional Article).
On April 7, 1855, His Majesty King Kamehameha IV opened the Legislative Assembly. In that speech he reiterated the Kingdom's neutrality by stating, in part,
"It is gratifying to me, on commencing my reign, to be able to inform you, that my relations with all the great Powers, between whom and myself exist treaties of amity, are of the most satisfactory nature. I have received from all of them, assurances that leave no room to doubt that my rights and sovereignty will be respected. My policy, as regards all foreign nations, being that of peace, impartiality and neutrality, in the spirit of the Proclamation by the late King, of the 16th May last, and of the Resolutions of the Privy Council of the 15th June and 17th July. I have given to the President of the United States, at his request, my solemn adhesion to the rule, and to the principles establishing the rights of neutrals during war, contained in the Convention between his Majesty the Emperor of all the Russias, and the United States, concluded in Washington on the 22nd July last."
The abovementioned actions on the part of the Governments of England, France, Russia, the United States of America and the Hawaiian Kingdom relating to the development of the principles of international law in relation to neutrality provided the necessary pretext for the leading European maritime powers to meet in Paris, after the Crimean War, and enter into a joint declaration that provided the following four principles,
1. Privateering is, and remains, abolished.
2. The neutral flag covers enemy's goods, with the exception of contraband of war.
3. Neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag.
4. Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.
The aforementioned Declarations and the 1854 Russian-American Convention represented the first recognition of the right of neutral States to conduct free trade without any hinderence from war. Stricter guidelines for neutrality were later established in the 1871 Anglo-American Treaty made during the wake of the American Civil War, whereby both parties agreed to the following rules.
First, to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.
Second, not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.
Thirdly, to exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties.
Newer and stricter rules for the conduct of neutral States were expounded upon in the 1874 Brussels Conference, and later these principles were codified in the Fifth and Thirteenth Hague Conventions of 1907, governing, respectively, the rights and duties of neutral States in Land and Maritime warfare.
Since the 1843 Anglo-Franco Proclamation, wherein the Hawaiian Islands was admitted into the great Family of Nations by England and France, the Hawaiian Kingdom participated in the establishment and growth of the international law of neutrality. With the Hawaiian Kingdom's unique location in the middle of the North Pacific Ocean for both commercial trade and a sanctuary for ships at war, the maritime powers of Europe and America found it prudent to include the Hawaiian Kingdom in the evolution of the principles and subsequent codification of neutral rights.
As a neutral State, the Hawaiian Kingdom was afforded all the protection of international law it had helped to establish, and by 1893 the principles of neutral rights were enough to preclude any other independent State from infringing upon the sovereign neutral rights of the Hawaiian Kingdom. It was the United States of America, in its 1871 Anglo-American Treaty, that established rules preventing belligerent States from utilizing neutral territory or ports for warlike purposes such as outfitting vessels, recruiting troops, or basing military operations. It would only be twenty-two years later that the United States and the Hawaiian Kingdom would find themselves entangled in a web of deception and fraud that was perpetuated by American expantionists in gross violation of the sovereign and neutral rights of the Hawaiian Kingdom. From the illegal intervention by the United States into the civil affairs of the Hawaiian Kingdom in 1893, to the subsequent creation of American puppet governments and a state in an occupied neutral territory, the deception would last for over a century. Pau.
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|Synopsis History||"Lance Paul Larsen vs. the Hawaiian Kingdom"
Permanent Court of Arbitration, The Hague
|News Arbitral Log|