Under international humanitarian law, the ousted government of an occupied State may continue to legislate during the occupation of its territory by an occupying State. The reason for this is that belligerent occupation does not transfer sovereignty to the occupying State but only the temporary control of the territory. As the occupying State possesses no sovereignty during the occupation it is not able to legislate except for what is narrowly allowed for under the law of occupation.
On February 28, 1997, His Excellency David Keanu Sai, appointed Regent on March 1, 1996 under the doctrine of necessity, proclaimed the restoration of the Hawaiian Kingdom government as it stood previous to the United States invasion and overthrow of the Hawaiian government on January 17, 1893.
After the commissions of Mrs. Kau'i Sai-Dudoit, formerly Kau'i P. Goodhue, as Minister of Finance, Peter Umialiloa Sai as Minister of Foreign Affairs and Gary V. Dubin, Esquire, as Attorney General, a resolution in Privy Council on September 26, 1999, announced that "the office of the Minister of Interior shall be resumed by David Keanu Sai, thereby absolving the office of the Regent, pro tempore, and the same to be replaced by the Cabinet Council as a Council of Regency, pro tempore, within the meaning of Article 33 of the Constitution of the Country."
Professor Federico Lenzerini, a professor of international law from the University of Siena, Italy, provided a legal opinion on the authority of the Council of Regency. Regarding legislation by governments of occupied States, Professor Lenzerini cites the Swiss Federal Tribunal which held that "[e]nactments by the [exiled government] are constitutionally laws of the [country] and applied [from the beginning] to the territory occupied...even though they could not be effectively implemented until the liberation." He explains that "[a]though this position was taken with specific regard to exiled governments, and the Council of Regency was not established in exile but in situ, the conclusion, to the extent that it is considered valid, would not substantially change as regards the Council of Regency itself."
When the legislative function is exercised by the Council of Regency, through its proclamations, it "is subjected to the condition of not undermining the rights and interests of the civilian population," and therefore "may be considered applicable to local people, unless such applicability is explicitly refuted by the occupying authority." "In this regard," states Professor Lenzerini, "it is reasonable to assume that the occupying power should not deny the applicability of the...proclamations when they do not undermine, or significantly interfere with the exercise of, its authority."
In order to bring the laws of the Hawaiian Kingdom as they existed in the nineteenth century up to date, the Council of Regency proclaimed on October 10, 2014, that "all laws that have emanated from an unlawful legislature since the insurrection begain on July 6, 1887 to the present, to include United States legislation, shall be the provisional laws of the Realm subject to ratification by the Legislative Assembly of the Hawaiian Kingdom once assembled, with the express proviso that these provisional laws do not run contrary to the express, reason and spirit of the laws of the Hawaiian Kingdom prior to July 6, 1887, the international laws of occupation and international humanitarian law, and if it be the case they shall be regarded as invalid and void." Accompanying this proclamation is a memorandum by the Chairman of the Council of Regency, His Excellency Dr. David Keanu Sai, Ph.D., on the formula to be used by American authorities in determining what United States federal statutes, State of Hawai`i statutes, and County ordinances to be considered the provisional laws of the Hawaiian Kingdom.
Addressing the June 3, 2019 proclamation of the Council of Regency recognizing the State of Hawai'i and the Counties as the administration of the Occupying State, Professor Lenzerini states, "this Proclamation pursues the clear purpose of ensuring the protection of the Hawaiian territory and the people residing therein against the prejudicial effects which may arise from the occupation." He explains that "it represents a legislative act aimed at furthering the interests of the civilian population through ensuring the correct administration of their rights and of the land. As a consequence, it has the nature of an act that is equivalent, in its rationale and purpose (although not in its precise subject), to a piece of legislation concerning matters of personal status of the local population, requiring the occupant to give effect to it." He, therefore, concludes that "the proclamations of the Council of Regency-including the Proclamation recognizing the State of Hawai'i and its Counties as the administration of the occupying State on 3 June 2019-have on the civilian population the effect of acts of domestic legislation aimed at protecting their rights and prerogatives, which should be, to the extent possible, respected and implemented by the occupying power." Accompanying the proclamation is a memorandum by the Chairman of the Council of Regency on the role and function of the military government of Hawai`i.
On the working relationship between the Regency and the administration of the occupying State, Professor Lenzerini establishes that the law of occupation "allows for authority to be shared by the Occupying Power and the occupied government, provided the former continues to bear the ultimate and overall responsibility for the occupied territory." By implementing the legislation of the Council of Regency, "the occupying power would better comply with its obligation, existing under international humanitarian law and human rights law, to guarantee and protect the human rights of the local population. It follows that the occupying power has a duty-if not a proper legal obligation-to cooperate with the [Council of Regency] to better realize the rights and interest of the civilian population, and, more in general, to guarantee the correct administration of the occupied territory."
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