HomeMy WebLinkAboutCOM 0377.208 2024-2026August18,2025
SUBJECT- SUPPORT RESOULTION 234-25
A RESOLUTION URGING THE STATE OF HAWAI' I TO ENSURE THE HEALTHCD
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AND SAFETY OF HAWAI' I ISLAND RESIDENTS BY REQUESTING THE MILITARY
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TO CEASE ALL BOMBING AND DESECRATION ACTIVITIES AT THE
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PO HAKU LOA TRAI N I N G AREA, REJECTING LAND SWAPS AND LEASE
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RENEWALS WITH THE MILITARY UNLESS CERTAIN STIPULATIONS AREc
ESTABLISHED, AND CONDUCTING A KA PA' AKAI ANALYSIS ON THE AREA.
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TO: Hawaii County Council's Policy Committee on Environmental and Natural $esource
Management
Aloha Committee Members,
I write in strong support of Resolution 234-25. The situation at Pohakuloa Training Area (PTA) is not only a
matter of environmental or cultural concern, but also a profound violation of international law and the
rights of the Hawaiian people, rooted in the illegal occupation of the Hawaiian Kingdom by the United
States.
Under international law, as codified in Article 42 of the 1907 Hague Regulations, "a territory is considered
occupied when it is actually placed under the authority of the hostile army."The law of occupation is
clear that "the foundation upon which the entire law of occupation is based is the principle of
inalienability of sovereignty through unilateral action of a foreign power, whether through the actual or the
threatened use of force, or in any way unauthorized by the sovereign. Effective control by foreign military
force can never bring about by itself a valid transfer of sovereignty" (see Appendix, [Al ],A2]).
This principle is further affirmed by the International Court of Justice, which has held that "illegal acts
cannot be a source of legal rights" (ex injuria jus non oritur) and that "occupation cannot of itself
terminate statehood" (see Appendix, [A3], [A4]).
The United States' occupation of Hawaii, beginning in 1893, was not consented to by the Hawaiian
government and was condemned by President Grover Cleveland as "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. A substantial wrong has
thus been done which a due regard for our national character as well as the rights of the injured people
requires we should endeavor to repair" (see Appendix,A5]).
The U.S. Congress itself acknowledged in Public Law 103-150 (1993 Apology Resolution) that "the Native
Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over
Page 1 of 3
RE: Support Resolution 234-25—Written Testimony August 18, 2025/Ronnie Inagaki
A RESOLUTION URGING THE STATE OF HAWAI' I TO ENSURE THE HEALTH AND SAFETY OF HAWAI' I ISLAND
RESIDENTS BY REQUESTING THE MILITARY TO CEASE ALL BOMBING AND DESECRATION ACTIVITIES AT THE
POHAKULOA TRAINING AREA, REJECTING LAND SWAPS AND LEASE RENEWALS WITH THE MILITARY UNLESS
CERTAIN STIPULATIONS ARE ESTABLISHED, AND CONDUCTING A KA PA' AKAI ANALYSIS ON THE AREA.
• �� � l�a����tl
their national lands to the United States," and apologized for "the deprivation of the rights of Native
Hawaiians to self-determination" (see Appendix, [A6]).
The right of peoples to self-determination is affirmed in Article 1 of the United Nations Charter and has
been upheld by the International Court of Justice, which stated that the right "cannot be considered as
having been extinguished with the passing of time" (see Appendix,A7], [A8]).
International practice has consistently condemned the acquisition of territory by force, as seen in United
Nations Security Council Resolution 662 (1990) declaring Iraq's annexation of Kuwait "null and void," and
United Nations General Assembly Resolution 68/262 (2014) affirming the territorial integrity of Ukraine
and rejecting the annexation of Crimea (see Appendix,A9], [Al0]).
These principles apply equally to Hawaii. The occupation and annexation of the Hawaiian Kingdom were
never consented to by its government or people, and no treaty of cession exists. The continued use of
Hawaiian national lands for military purposes, including at PTA, is therefore not only harmful but unlawful
under international law.
Supporting Resolution 234-25 is not only a matter of justice for Hawai'i's land, water, and people, but also
an essential step toward compliance with international law and the restoration of the rights of the
Hawaiian people.
Mahalo,
Ronnie N. Inagaki
Waimanalo, O'ahu, Hawaii
Appendix: Citations to Primary Sources
A1.1907 Hague Regulations, Article 42 (definition of occupation):
https://ih[-databases.icrc.org/en/ih1-treaties/hague-conv-iv-1 907/article-42
A2. Inalienability of sovereignty and occupation does not transfer sovereignty:
• Hague Regulations, Article 43, 55: https://ihl-databases.icrc.org/en/ihl-treaties/hague-conv-iv-
1907
Lenzerini, "Military Occupation, Sovereignty, and the ex injuria jus non oritur Principle," p. 59
(IRCL_Article_(Lenzerini).pdf)
A3. Ex injuria jus non oritur (illegal acts cannot create legal rights):
Page 2 of 3
RE: Support Resolution 234-25—Written Testimony August 18, 2025/Ronnie Inagaki
A RESOLUTION URGING THE STATE OF HAWAI' I TO ENSURE THE HEALTH AND SAFETY OF HAWAI' I ISLAND
RESIDENTS BY REQUESTINGTHE MILITARYTO CEASE ALL BOMBING AND DESECRATION ACTIVITIESATTHE
POHAKULOA TRAINING AREA, REJECTING LAND SWAPS AND LEASE RENEWALS WITH THE MILITARY UNLESS
CERTAIN STIPULATIONS ARE ESTABLISHED, AND CONDUCTING A KA PA' AKAI ANALYSIS ON THE AREA.
ICJ, Gabcikovo-Nagymaros Project (Hungary/Slovakia), Judgment, 1997, para.133:
https://www.ica-cii.orgLcase/92liudgments
Lenzerini, p. 59 (IRCL_Article_(Lenzerini).pdf)
A4.Occupation cannot of itself terminate statehood:
Affaire de la Dette publique ottomane (1925), Reports of International Arbitral Awards, Vol. I, p.
555: https•//legal un org/riaa/cases/vol 1/529 614 pdf
Lenzerini, p. 60 (IRCL_Article-(Lenzerini).pdf)
A5. President Grover Cleveland's 1893 Message to Congress (condemnation of U.S. actions in
Hawai`i):
https•//rnillercenterorg/the president/presidential speeches/december 18 1893-message-regardin�-
hawaiian-annexation
A6. Public Law 103-150 (1993 Apology Resolution):
https://www.govinfo.gov/content/pkgL!5-TA—TUT -107/pdf/STATUT -107-Pg1510pdf
A7. United Nations Charter, Article 1 (right to self-determination):
https://www.un.orgLen/about-us/un-charter
A8. ICJ, Chagos Advisory Opinion (2019), para.172 (self-determination cannot be extinguished by
time):
https://www.ici-cii.org/public/files/case-reiated/l 69/169-20190225-ADV-01 -00-ENpdf
A9. UN Security Council Resolution 662 (1990) (Iraq/Kuwait):
https•//digitallibrary un org/record/97316?in=en
A10. UN General Assembly Resolution 68/262 (2014) (Ukraine/Crimea):
https://digitallibrary un org/record/767565?1n=en
Page 3 of 3
RE: Support Resolution 234-25 -Written Testimony August 18, 2025/Ronnie Inagaki
A RESOLUTION URGING THE STATE OF HAWAI' I TO ENSURE THE HEALTH AND SAFETY OF HAWAI' I ISLAND
RESIDENTS BY REQUESTING THE MILITARY TO CEASE ALL BOMBING AND DESECRATION ACTIVITIES ATTHE
POHAKULOATRAINING AREA, REJECTING LAND SWAPS AND LEASE RENEWALS WITH THE MILITARY UNLESS
CERTAIN STIPULATIONS ARE ESTABLISHED, AND CONDUCTING KA PA-AKAIANALYSIS ON THE AREA.
International
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Federico Lenzerini
Professor of International Law and Human Rights, University of
Siena (Italy). Professor at the LLM programme in Intercultural Hu-
man Rights, St. Thomas University School of Law, ,Miami (FL), USA.
Pro-fessor at the Tulane-Siena Summer School on Inter -national Law,
Cultural Heritage and the Arts. Deputy Head of the Hawaiian King-
dom's Royal Commission of Inquiry.
Juan Fernando Romero Tobon
Candidat au doctorat (2019). Maitrise en droit de 1'Universite nationale
de Colombie (2013). Specialiste en droit economique de 1'Universite
catholique de Louvain en Belgique (1995). Juriste de 1 Universidad de los
Andes (1991) et anthropologue de 1 Universidad National de Colom-
bia (1994). Auteur des livres Por Jos caminos de la excepcionalidad, La
deriva de to social y su respuesta autoritaria en Latinoamerica y Colom-
bia (Grupo editorial Ibanez 2020), El Derecho fundamental a la salud.
Loi 175,1 de 2015. (Grupo editorial Ibanez 2019), Las acciones p6blicas
de inconstitucionalidad en Colombia (1992-2013), 8030 dias a bordo
del Nautilus,(Grupo editorial Ibanez 2016) et Huelga y servicio p6blico
en Colombia. I-listoria de una Prohibici6n (Rodriguez Quito Editores,
1992) et les recueils de poesie En la caza (casa) de un eterno descon-
ocido (2001), La mirada del cangrejo (2005) et los Ojos de los Lboles
(2010-2021, ediciones lobo estepario) ainsi que la nouvelle El retorno del
navegante Colon (editions lobo estepario, 2018). Il a publie les articles
de recherche suivants Reflexiones e inflexions en torno a la pandemia
pox la Covid 19 (2020), El pendulo del constitucionalismo social (2019),
La construcci6n del enemigo interior, La regulaci6n de los estados de
excepci6n en el siglo XIX (2018), Del estado de sitio a la anormalidad
permanente : los nuevos caminos de la excepcionalidad (2016), La puerta
alterna de las acciones de inconstitucionalidad (2015), Las consti-tuciones
de Bolivia y Colombia y las acciones de defensa (2015) et Constitucio-
nalismo social en America Latina (2013) et dans les revues Pensamiento
Juridico, Trabajo y Derecho, Planeaci6n y Desarrollo, Sinderesis, entre
autres. Membre du groupe de recherche CC - Comparative Constitution-
alism et responsible de la ligne de recherche.numero 6 Constitutional
Gaud de Geouffre de la Pradelle
Military Occupation, Sovereignty,
and the ex injuria jus non orit-
ur Principle. Complying with the
Supreme Imperative of Suppress-
ing "Acts of Aggression or Other
Breaches of the Peace" a la carte?
The author concludes that "Unfortu-
nately, still today, abundantly inside the
XXI Century, while the "cosmopolitan
right" Kant referred to has actually
developed, the goal of perpetual peace
appears a chimera, especially due to
the distorted use of the main pertinent
rules at the service of States' imperial-
istic interests."
Homage a Nydia Tobon
Vol. 6, Num. 2, June 2024 0 vol. 6, num. 2 juin 2024
Military Occupation, Sovereignty, and the ex injuria jus
non oritur Principle. Complying with the
Supreme Imperative of Suppressing "Acts of
Aggression or Other Breaches of the Peace" a la carte?
Federico Lenzerini
1. Introduction. The Suppression of Acts of
Aggression or Other Breaches of the Peace as
Supreme Purpose of the UN Charter
Article 1, para. 1 of the UN Charters' identifies the para-
mount purpose of the United Nations in the commitment
"[tlo maintain international peace and security, and to
that end: to take effective collective measures for the pre-
vention and removal of threats to the peace, and for the
suppression of acts of aggression or other breaches of
the peace". Unfortunately, it appears that, nearly 78 years
after the adoption of the Charter, such a solemn commit-
ment remains in a large part unrealized, as demonstrat-
ed, interalia, by the armed aggression launched by Russia
against Ukraine on 24 February 2022, which triggered a
quasi -world war still ongoing at the moment of this writ-
ing (June 2023). The geopolitical stability paradoxically
preserved by the Cold War collapsed after the fall of the
Berlin wall, when the flames of a number of interstate
and interethnic dashes — previously forcibly kept under
control by the above (artificial) stability — suddenly re-
vived. Since then, the world has been affected by several
military conflicts, effectively addressed by the UN Secu-
rity Council (SC) only in a very few cases, the SC being
unable to properly react to them in most situations, es-
pecially when one of its permanent members is involved.
Among other effects, such conflicts have also threatened
the effectiveness and credibility of pertinent rules of in-
ternational law, especially those concerning jus ad liellum,
international humanitarian law and military occupation.
2. Military Occupation, Sovereignty and the ex-
injuria jus non oritur Principle
According to Article 42 of the 1907 Hague Regulations,'
"a territory is considered occupied when it is actually
placed under the authority of the hostile army", the latter
obtaining eectine control of the occupied territory. Military
occupation is a factual phenomenon, as it is not influenced
by any considerations concerning whether or not the mil-
itary action leading to the fact of the occupation could be
considered lawful under international law' It follows that
the relevant rules governing military occupation are equal-
ly applicable irrespective of the lawfulness of the use of
force in one particular circumstance. One of these rules
— which is particularly pertinent to the present investiga-
tion — rests in the fact that, as codified by common Article
2(2) of the four Geneva Conventions of 1949,' the laws
regulating military occupation apply even when the latter
does not meet any armed resistance by the troops or the
people of the occupied territory' The decisive require-
ment is rather that the occupation is hostile, i.e. that it is
not consented by the territorial State, while "[t]he lack of
armed resistance of the territorial state cannot be inter-
preted as consent to the foreign armed forces' presence,
nor can the fact that part of the local population wel-
comes the occupying forces".' Also, "[o]ccupying forc-
es do not need to be present everywhere at all times to
maintain the state of occupation. What matters is wheth-
er occupying forces can project their authority through-
out the territory. For example, occupying forces may only
1 * Professor of International Law and Human Rights, University of Siena (Italy). Professor at the LLM progratnme in Intercultural Human Rights, St.
Thomas University School of Law, Miatni (FL), USA. Professor at the Tulane-Siena Summer School on International Law, Cultural Heritage and the Arts.
Deputy Head of the Hawaiian Kingdom's Royal Commission of Inquiry.
Available (accessed 11 January 2023).
2 See Convention qV) rnpetting the Iawe and Customs of lVar on Iand and its annex. Regulation; concerning the Law; and Customs of IFIa on Land, 1907, at Itllps,/ /
ihl-clarabases icrc org/en /ihl-treaties/ hague-conv-iv-1907 (accessed 11 January 2023).
3 See Tristan Ferraro, "Determining the beginning and end of an occupation under international humanitarian law", 885 International Renew of the Red Cross
94 (2012) 133, at 135.
4 See (accessed ll Jantua 2023).
5 See Adam Roberts, "What is a Military Occupation?', (1984) 55 British Year Book of International Law 249.
6 See RULAC, "Military Occupation", 4 September 2017, at ht(p0/w . 4c.org/classifica6on/military-occupadons (accessed 11 January 2023).
Vol. 6, Num. 2, June 2024
vol. 6, num. 2 juin 2024
be present in strategic positions from where they could
be dispatched widen a reasonable time frame".'
Last but not least, "[t]he foundation upon which the en-
dre law of occupation is based is the principle of inalien-
ability of sovereignty through unilateral action of a for-
eign power, whether through the actual or the threatened
use of force, or in anyway unauthorized by the sovereign.
Effective control by foreign military force can never bring
about by itself a valid transfer of sovereignty";' "[e]ven if
[a] whole country is occupied, and the legitimate govern-
ment goes into exile and does not participate actively in
military operations, the occupant does not have any right
of annexation".' This rule represents a declination of the
ex injutia jus non otitur principle, .literally meaning that law
cannot arise from injustice, or, in other words, that ille-
gal acts cannot be a source of legal rights. This principle
gained relevance in the dialectics of international diplo-
macy on 7 January 1932, when a note sent to China and
Japan by the US Secretary* of State Henry Stimson gave
rise to the so-called Stimson dochine. The note read that the
American government "cannot admit the legality of any
situation de facto nor does it intend to recognize any trea-
ty or agreement entered into between [China and Japan]
which may impair the treaty rights of the United States
or its citizens in China, including those which relate to
the sovereignty, the independence or the territorial or ad-
ministrative integrity of the Republic of China [...]".10In
taking this position, the US government clarified that it
would have not recognized any territorial changes deter-
mined through the use of force, advocating the illegality
of acquisitions of territories following military occupa-
tion per se. The Stimson doctrine was "quickly adopted
by the League of Nations as one of the cardinal prin-
ciples for the solution of the Sino-Japanese dispute","
with a resolution adopted by the Assembly on 11 March
1932, affirming that "it is incumbent upon the members
of the League of nations not to recognize any situation,
treaty or agreement which may brought about by means
,contrary to the Covenant of the League of Nations or
to the Pact of Paris".12 More recently the ex injuria jus non
otiturprinciple has been confirmed by the International
Court of Justice (ICJ), excluding that "facts which flow
from wrongful conduct [may] determine the law" and
paying explicit tribute to the "principle ex injmia jus non
otitu?' itself." In sum, "occupation cannot of itself ter-
minate statehood"," and, in case of annexation based
on occupation only, "the legal existence of [..] States [is]
preserved from extinction"."
3. Kuwait, Crimea, and Uhraine. Examples of
Recent Practice Concerning Military Occupation
of Foreign Territories
Since the end of the XIX Century many situations
of foreign military occupation have occurred in the
world. Only a relatively small portion of them has
been followed by the political annexation of the oc-
cupied territory by the occupying power. Of course,
it is not the purpose of the present article to pro-
vide a systematic and comprehensive taxonomy of
all such situations. However, it is certainly possible
to refer to a few examples in the context of which
the international community— including most States
and the United Nations — have strongly condemned
the annexation of foreign States or of part of their
territories following military occupation as contrary
to the basic principles of international law. In some
cases, they have even reacted militarily in order to
restore the pre-existing legality.
7 Ibid.
8 See Eyal Benvenisti, The International Law of Ormpalion, 2nd Ed, Oxford, 2012, at 6. See also Federico Lernerini, "Legal Opinion on the Authorityof the
Council of Regency of the Hawaiian Kingdom", (2021) 3 HAW J.L. & POL. 317, at 320; Adam Roberts, `Prolonged Military Occupation: The Israeli -Oc-
cupied Territories Since 1967", (1990) 84 American Journal of International low 44, at 38; Conor McCarthy, "Paradox of the International Law of Military
Occupation: Sovereignty and the Reformation of Iraq", (2005) 10 Journal of Conflict and Security Law 43, at 49-51; Oma Ben -Naftali, Aeyal M. Gross & Keren
Michaeli, `Illegal Occupation: Framing the Occupied Palestinian Terrority", (2005) 23 BerkeleyJournal of Internalional Law 551, at 560; Jean L. Cohen, "Tire
Role of International Law in Post -Conflict Constitution -Making toward a Jos Post Bellum for Interim Occupations", (2006) 51(3) New York Law School Law
Review 497, parrim; Nicholas F. Lancaster, "Occupation Law, Sovereignty; and Political Transformation: Should the Hague Regulations and the Fourth Geneva
Convention Still Be Considered Customary International Lard', (2006) 189 Military Law Review 51, at 63.
9 See Adam Roberts, "Transformadve Military Occupation: Applying the Laws of War and Human Rights", (2006) 100(3) American Journal of International
Lam 580, at 583.
10 See Quincy Wright, `The. Stunson Note of January 7, 1932", 26 AJIL 1932 342.
11 See Kisaburo Yokota, `The Recent Development of the Stimson Doctrine', 8 Padfc,4 fdrs (1935) 133, at 133.
12 See Quincy Wright, cit. n. 7, at 343.
li See Gabh'kow-Nagymaror Pr jest (Hungary/Slovakia), Judgment of 25 September 1997, I.C. J. Reports 1997, p. 7, at 76, para. 133.
14 See Ism Brownlie, Principles of Public International Law, 7tlt Ed., Oxford, 2008, at 78.
15 See James Crawford, The Creation of States in International Law, 2nd Ecj., Oxford, 2006, at 702.
Vol. 6, Num. 2, June 2024
vol. 6, num. 2 juin 2024
One of the most known recent instances of military
occupation followed by annexation of the occupied
territory is represented by the case of Kuwait, invad-
ed by Iraq in August 1990 and eventually annexed to
the Iraqi territory as its 19th province shortly after
the establishment by the then Iraqi leader Saddam
Hussein of the puppet government defined as The
Republic of Kuwait. The invasion of Kuwait by Iraq
was strongly condemned by the majority of States.
At the UN level, on 2 August 1990 the SC adopted
Resolution 660 by 14 votes to none (with Yemen
not participating in the vote), in which condemned
the Iraqi invasion of Kuwait and demanded Iraq to
"withdraw immediately and unconditionally all its
forces" from the territory of the invaded country. A
few days later, on 9 August, the SC adopted unan-
imously Resolution 662, deciding that "annexation
of Kuwait by Iraq under any form and whatever
pretext has no legal validity, and is considered null
and void", and calling upon all States, "international
organizations and specialized agencies not to recog-
nize that annexation, and to refrain from any action
or dealing that might be interpreted as an indirect
recognition of the annexation". As is well-known,
after adopting several other resolutions requesting
Iraq to put the invasion of Kuwait to an end, on
29 November 1990 the SC adopted Resolution 678
— by 12 votes to two (Cuba and Yemen), with the
abstention of China — which authorized UN mem-
ber States cooperating with Kuwait "to use all nec-
essary means to uphold and implement resolution
660(1990) and all subsequent relevant resolution
and to restore international peace and security in the
area". This resolution represented the legal basis for
the military action — known as "Gulf War" — waged
by a coalition of 35 States, led by the United States,
which began on 17 January 1991 and lasted until the
liberation of Kuwait on 28 February 1991."
Another example of interest for the present investiga-
tion is represented by the invasion and subsequent an-
nexation of Crimea by the Russian Federation in Febru-
aryand March 2014. Following a referendum held on 16
March 2014 (resulting in a plebiscite for the integration
in the Russian territory), the Russian Federation formally
incorporated Crimea on 18 March. At the moment of
this writing, the Russian Federation still retains effective
control over the territory of Crimea, despite the fact that
only a handful of States (namely Afghanistan, Belarus,
Bolivia, Cuba, Nicaragua, North Korea, Sudan, Syria
and Venezuela) have recognized or supported the an-
nexation. Most other countries have condemned the an-
nexation as a violation of international law and a threat
to the territorial integrity* of Ukraine, and, following
the annexation, the Russian Federation was suspended
from the G8. As far as the United Nations is concerned,
on 15 March 2014 a draft resolution proposed by the
United States declaring the commitment to preserve the
sovereignty, independence, unity and territorial integrity
of Ukraine — supported by 13 out of 15 members of
the Council (with the abstention of China) — was vetoed
by the Russian Federation." However, on 27 March the
General Assembly adopted Resolution 68/262, entitled
"Territorial integrity of Ukraine", with 100 votes in fa-
vour,11 against and 58 abstentions. Among other things,
this resolution affirmed the commitment of the Gener-
al Assembly "to the sovereignty, political independence,
unity and territorial integrity of Ukraine within its in-
ternationally recognized borders"." The resolution also
called "upon all States to desist and refrain from actions
aimed at the partial or total disruption of the national
unity and territorial integrity of Ukraine, including any
attempts to modify Ukraine's borders through the threat
or use of force or other unlawful means".19 It also un-
derscored that "the referendum held in the Autonomous
Republic of Crimea and the city of Sevastopol on 16
March 2014, having no validity, cannot form the basis
for any alteration of the status of the Autonomous Re-
16 For a comprehensive assessment of the facts and legal implications concerning the invasion of Kuwait by Iraq and the subsequent actions by the
United Nations see Mary Ellen O'Connell, "Enforcing the Prohibition on the Use of Force: The UN's Response to Iraq's Invasion of Kuwait", (1991)
15 Southern Illinois University Law Journal 453. See also Christopher Greenwood, "Iraq's Invasion of Kuwait: Some Legal Issues", (1991) 47 The Ir/orld
Today 39; Christopher Greenwood, `New World Order or Old? The Invasion of Kuwait and the Rule of Law", (1992) 55 The Modern Law Review 153;
Stanley J. Glod, "International Claims Arising from Iraq's Invasion of Kuwait" (1991) 25(3) International7nuyer (ABA) 713; Christopher J. Saber, "The
Security Council Comes of Age: An Analysis of the International Legal Response to the Iraqi Invasion of Kuwait", (1991) 21 Georgia journal of Interna-
tional and Comparative Law 63; Colin Warbrick, "The Invasion of Kuwait by Iraq", (1991) 401nternational and Comparative L aw,Quarterly 482; Colin Warbrick
"The Invasion of Kuwait by Iraq: Part II", 1991) 40 International and Comparative LawQuarterly 965.
17 See Sominu Sengupta, "Russia Vetoes U.N. Resolution on Crimea", The New York Times, 15 March 2014, at hrps: / /wwwn)- Imes com/2014/03/l6/
world/eorope/russia-vetoes-un-resrolotion-on-nimea html (accessed 12 January 2023).
18 See para. 1
19 See para. 2.
Vol. 6, Nam. 2, June 2024
vol. 6, num. 2 juin 2024
public.of Crimea or of the city of Sevastopol" 20 It final-
ly called "upon all States, international organizations and
specialized agencies not to recognize any alteration of
the status of the Autonomous Republic of Crimea and
the city of Sevastopol on the basis of the above -men-
tioned referendum and to refrain from any action or
dealing that might be interpreted as recognizing any such
altered status"."
Since 2014, and before the beginning of the armed con-
flict between Russian Federation and Ukraine on 24 Feb-
ruary 2022, the General Assembly has repeatedly reiter-
ated "that the temporary occupation of Crimea and the
threat or use of force against the territorial integrity or
political independence of Ukraine by the Russian Fed-
eration is in contravention" of international law,22 and
that "the seizure of Crimea by force is illegal and a vio-
lation.of international law [..] [implying that] those ter-
ritories must be immediately returned" to Ukraine.21 It
has consequently urged the Russian Federation, "as the
occupying Power", inter a/ia, "immediately, completely
and unconditionally to withdraw its military forces from
Crimea and end its temporary occupation of the territo-
ry of Ukraine without delay".'
The third example that we intend to describe is very
well known at the time of this writing. On 24 February
2022, the Russian Federation launched an armed aggres-
sion against Ukraine, followed _by the invasion of some
Ukrainian territories in the southern and south-eastern
fronts of the conflict. The intervention was justified by
Russian President Putin and by the Permanent Represen-
tative of the Russian Federation to the United Nations,
respectively, as a "special operation" aimed at reacting to
the situation of "horror and genocide, which almost 4
million people [were] facing" in the area of Donbass,"
and as having the purpose "to protect people who ha[d]
been subjected to abuse and genocide by the Kyiv regime
for eight years"." However, the ICJ held that, even in the
event that the Russian Federation's assertion that Ukraine
has committed or is committing genocide in the Luhansk
and Donetsk regions of Ukraine would be true,27 "[t]he
acts undertaken by the Contracting Parties `to prevent and
to punish' genocide must be in conformity with the spirit
and aims of the United Nations, as set out in Article 1 of
the United Nations Charter"."
Consequently, "it is doubtful that the [1948 Genocide]
Convention, in light of its object and purpose, authorizes
a Contracting Party''s unilateral use of force in the terri-
tory of another State for the purpose of preventing or
punishing an alleged genocide"." It follows, according
to the ICJ, that "Ukraine has a plausible right not to be
subjected to military operations by the Russian Federa-
tion for the purpose of preventing and punishing an al-
leged genocide in the territory of Ukraine"." Obviously
the Court formally used a not conclusive language, for
the reason that an order cannot prejudice "any questions
relating [..] to the merits" of the case,31 but the position
of the ICJ on the legitimacy of the Russian armed inter-
vention in Ukraine appears very explicit." On 25 Feb-
ruary 2022 a Draft resolution by the SC was blocked by
the Russian Federation's veto, while China, India and the
United Arab Emirates abstained. The Draft, among oth-
er things, deplored "in the strongest terms the Russian
20 See pars. 5.
21 See pare. 6.
22 See, e.g., Resolution 76/70 of 9 December 2021, "Problem of the militarization of the Autonomous Republic of Crimea and the city of Sevastopol,
Ukraine, as well as parts of the Black Sea and the Sea of Azov", tenth recital of the preamble.
23 Ibid., 14th recital of the preamble.
24 Ibid, para. 1. Generally on the Crimean case see Ferdinand Feldbrugge, "Ukraine, Russia and International Law" (2014) 39(1) Review of Central and
East European Law 95. Generally on the annexation of Crimea by the Russian Federation see Trevor McDougal, "A New Imperialism? Evaluating Russia's
Acquisition of Crimea in the Context of National and International Lave', (2016) 2015 Brigham Young University Law Review 1847.
25 See ICJ, Allegations of Genodde ender the Convention on the Praention and Punishment of the Crime of Genodde (Ukmine u Russian Fedemtion), Order of 16 March
2022, at hums//wwwicj- jj ore/nubhc/ files/case-related/182/182-20220316-ORD-01-00-EN.pdf (accessed 16 January 2023), pare. 38.
26 Ibid., para. 40.
27 In this regard the Court stated that "[a]t the present stage of these proceedings, the Court is not required to ascertain whether any violations of ob8-
gations under the Genocide Convention have occurred in the context of the present dispute. Such a finding could be made by the Court only at the stage
of the examination of the merits of the present case", as well as that "the acts complained of by, the Applicant appear to be capable of falling within the
provisions of the [19481 Genocide Convention"; see ibid., paras. 43 and 45.
28 Ibid., part. 58.
29 Ibid., para. 59.
30 Ibid., para. 60.
31 Ibid., para. 85.
32 For more details about the controversy between Russia and Ukraine be e the ICJ see Prabinash Ranjan and Achyttth Anil, "Russia -Ukraine War, ICJ,
Vol. 6, Num. 2, June 2024
vol. 6, num. 2 juin 2024
Federation's aggression against Ukraine in violation of
Article 2, paragraph 4 of the United Nations Charter","
and decided "that the Russian Federation shall immedi-
ately cease its use of force against Ukraine and shall re-
frain from any further unlawful threat or use of force
against any UN member state".34 On 2 March 2022 the
UN General Assembly — in Resolution ES-11 /1 — con-
demned "the 24 February 2022 declaration by the Russian
Federation of a `special military operation' in Ukraine"
and reaffirmed that "no territorial acquisition resulting
from the threat or use of force shall be recognized as
legal". On 30 September 2022, following four referenda
organized and managed by the Russian occupation au-
thorities (all resulting in an almost absolute support for
the integration in the Russian territory), the Russian Fed-
eration unilaterally declared the annexation of territories
of four Ukrainian regions, namely Donetsk, Kherson,
Luhansk and Zaporizhzhia. On the same day, the United
States and Albania submitted a draft resolution to the SC,
defining the annexation as a threat to international peace
and security, considering the referenda held in the four
Ukrainian regions as illegal and requesting Russian Fed-
eration to immediately and unconditionally withdraw its
decision. The resolution was supported by ten members
of the SC, with Brazil, China, Gabon and India abstain-
ing, but was again vetoed by the Russian Federation.35 On
12 October 2022, the GA adopted Resolution ES-11 /4,
with a majority of 143 votes in favour, 35 abstentions,
and only five votes against (Belarus, Democratic People's
Republic of Korea, Nicaragua, Russian Federation and
Syria). This resolution noted that "the Donetsk, Kher-
son, Luhansk and Zaporizhzhia regions of Ukraine are
areas that, in part, are or have been under the temporary
military control of the Russian Federation, as a result
of aggression, in violation of the sovereignty, political
independence and territorial integrity of Ukraine",36 de-
clared that the referenda held in the above regions, "and
the subsequent attempted illegal annexation of these re-
gions, have no validity under international law and do not
form the basis for any alteration of the status of these
regions of Ukraine"," and demanded that
the Russian Federation immediately and unconditionally
reverse its decisions of 21 February and 29 September
2022 related to the status of certain areas of the Donetsk,
Kherson, Luhansk and Zaporizhzhia regions of Ukraine,
as they are a violation of the territorial integrity and sov-
ereignty of Ukraine and inconsistent with the principles
of the Charter of the United Nations, and immediately,
completely and unconditionally withdraw all of its mili-
tary forces from the territory of Ukraine within its inter-
nationally recognized borders Je
Also, on 16 February 2023, the GA adopted Resolution
ES-11/L.7, which reaffirmed that "no territorial acqui-
sition resulting from the threat or use of force shall be
recognized as legal"39 and reiterated its demand that "the
Russian Federation immediately, completely and uncon-
ditionally withdraw all of its military forces from the
territory of Ukraine within its internationally recognized
borders, [also calling] for a cessation of hostilities"."
Generally speaking, both the armed attack as well as
the occupation and annexation of the aforementioned
Ukrainian territories by the Russian Federation have
strongly and almost universally been condemned by the
international community." Immediately after the begin-
ning of the aggression the Russian Federation became
the object of economic sanctions applied by the Europe-
an Union as well as by a long list of Western and other
countries, which also granted military, logistic, economic
and humanitarian aid in favour of Ukraine. Such sanc-
and the Genocide Convention", (2022) 9 Indonesian journal of International dr Comparative Law 101.
33 See Draft resolution S/2022/155, 25 February 2022, at 1 ttn ,// 1 t -dd - tyt p/ 1 /UNDOC/ GEN/N22/271/07/PDF/N2227107.pd-
f?OpenElement (accessed 16 January 2023), para. 2.
34 Ibid., para. 3.
35 See "Russia vetoes Security Council resolution condemning attempted annexation of Ukraine regions", UN News, 30 September 2022, at ]rtrps:/ /
newsum.orv,/en/story/2022/09/1129102 (accessed 16 January 2023).
36 See the fourth recital of tire preamble.
37 Ibid., para. 3.
38 Ibid., para. 5.
39 See the third recital of the preamble.
40 See pats. 5.
41 Generally on the Russian -Ukrainian war see Sofia Cavandok Gary Wilson, "Distorting Fundamental Norms of International Law to Resurrect the
Soviet Union: The International Law Context of Russia's Invasion of Ukraine", (2022) 69 Netherlands International Law Review 383; Fengcheng Mao, Kenm
Zhao, "Aggression and Determination: Two Basic issues of International Law in the Russia -Ukraine Conflict", (2022) 13 Bering Law Review 278; Claus Krell,
"Tire Ukraine War and the Prohibition of the Use of Force in International Lain", Torkel Opsahrl Academic EPublisheg Brussels, 2022, Occasional Paper
Series No. 13.
Vol. 6, Num. 2, June 2024 1W vol. 6, num. 2 join 2024
lions and aid continue to be applied/granted at the time
of this writing. On 16 March 2022, the Committee of
Ministers of the Council of Europe expelled the Russian
Federation from the Organization." At the time of this
writing, North Korea is the only member of the United
Nations which has recognized the Russian annexation of
the four occupied Ukrainian regions," while most gov-
ernments (in addition to international organizations) have
defined the referenda held in such regions "sham" and
have considered the annexation illegal.
The examples described in this section irrefutably show
that military occupation of a foreign country or of part
of its territory is unconditionally condemned by the in-
ternational community as an intolerable violation of in-
ternational law.
The Case of the Hawaiian Kingdom
On 16 January 1893, US marines entered into the territory
of the Hawaiian Kingdom and, together with about 1,500
armed non -Hawaiian mercenaries, occupied the Hawaiian
territory and overthrew the Kingdom's monarchy. On the
following day, Queen Lili`uokalani, as the executive mon-
arch of a constitutional government, conditionally sur-
rendered her authority to the United States "to avoid any
collision of armed forces and perhaps the loss of life"."
In December 1893, after receiving the report by the Spe-
cial Commissioner that he had appointed to investigate
the incident, US President Grover Cleveland recognized
that "My an act of war, committed with the participa-
tion 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 over-
thrown. A substantial wrong has thus been done which a
due regard for our national character as well as the rights
of the injured people requires we should endeavor to re-
pair' .45 Subsequently, in his 1893 State of the Union Ad-
dress to the Congress, President Cleveland emphasized
that "the only honorable course for our Government to
pursue was to undo the wrong that had been done" to the
Hawaiian Kingdom "and to restore as far as practicable
the status existing at the time of our forcible interven-
tion"." On the same day, an Executive Agreement was
concluded by exchange of notes with Queen Lili`uoka-
lani, in which President Cleveland took the commitment
of restoring the Queen as the constitutional sovereign of
Hawaii, while the Queen accepted — after some initial
hesitation — to grant a full pardon to the insurgents. The
implementation of the agreement, however, was blocked
by the Congress. In 1898, Cleveland's successor, William
McKinley, signed the Newlands Resolution, proclaiming
the annexation of Hawaii as a territory of the United
States and abrogating all international treaties previous-
ly in forcepbetweenthe two countries. Following the an-
nexation, the Hawaiian Islands were named "Territory of
Hawaii" in 1900, and in 1959 became the 50th State of
the US under the heading of "State of Hawaii'. on 23
November 1993, President Bill Clinton signed an official
Apology Resolution passed by the Congress, in which the
latter acknowledged, "on the occasion of the 100th anni-
versary of the illegal overthrow of the Kingdom of Ha-
waii on January 17, 1893 (...I the historical significance of
this event which resulted in the suppression of the inher-
ent sovereignty of the Native Hawaiian people"."' It also
apologized "to Native Hawaiians on behalf of the people
of the United States for the overthrow of the Kingdom
of Hawaii on January 17, 1893 with the participation of
agents and citizens of the United States, and the depriva-
tion of the rights of Native Hawaiians to self-determina-
tion",48 and expressed "its commitment to acknowledge
the ramifications of the overthrow of the Kingdom of
Hawaii, in order to provide a proper foundation for rec-
onciliation between the United States and the Native Ha-
waiian people"."
42 See "The Russian Federation is excluded from the Council of Europe", Council of Europe Newsroom, 16 March 2022, at httnsJ/wwwcoe hot/en /
web /pttl/-/th - si -f 1 (accessed 16 January 2023).
43 See Hayonhtee Shun, "N. Korea backs Russia's proclaimed annexations, criticises U.S. 'double standards"', Reuters, 4 October 2022, at httns-/ /irmnv
t ten co /uodd/asia pacific/nkot backs mssias pmclai d atnexations ctdcises u double sta_ dards 2022-10-03/ (accessed 16 JanuatT 2023).
44 See Queen Lili'uokalani, Statement to James H. Blount, 1893, at httns,//Lb vel,hawaii edu//d' 'colt/ annexation/protest/pdfs/liliul.pdf (accessed 25
January 2023).
45 See "December 18, 1893: Message Regarding Hawaiian Annexation", at I tt// 71 iteg/rl -p ide id ti 1- p 1 / lec n-
ber-18-1893-message-revarditlg4hawaiian-annexation (accessed 25 January 2023).
46 See President Grover Cleveland, "State of the Union 1893", 4 December 1893, at htnp // wwwlet.rug.nl/ma
union-1893.1,ho (accessed 25 January 2023).
47 See 107 STAT 1510 PUBLIC LAW 103-I50—NOV. 23, 1993, Public Law 103-150, 103d Congress, at I tt s•// wwwgovitifo gov/contenyt/PkgzSTAT-
UTE-107/pdf/STATUTE-107-Pg1510.odf (accessed 25 January2023), para. 1.
48 Ibid., para. 3.
49 49 Ibid., para. 5. For more comprehensive assessments of the US occupa on of Hawaii see Noelani Goodyear-Ka'opua, "Hawaii. An Occupied Coun-
Vol. 6, Num. 2, June 2024
vol. 6, num. 2 juin 2024
As a factual situation, the occupation of Hawaii by the
US does not substantially differ from the examples
provided in the previous section. Since the end of the
XIX Century, however, almost no significant positions
have been taken by the international community and its
members against the illegality of the American annex-
ation of the Hawaiian territory. Certainly, the level of
military force used in order to overthrow the Hawaiian
Kingdom was not even comparable to that employed in
Kuwait, Donbass or even in Crimea. In terms of the il-
legality of the occupation, however, this circumstance is
irrelevant, because, as seen in section 2 above, the rules
of international humanitarian law regulating military oc-
cupation apply even when the latter does not meet any
armed resistance by the troops or the people of the oc-
cupied territory. The only significant difference between
the case of Hawaii and the other examples described in
this article rests in the circumstance that the former oc-
curred well before the establishment of the United Na-
tions, and the resulting acquisition of sovereignty by the
US over the Hawaiian territory was already consolidated
at the time of their establishment. Is this circumstance
sufficient to uphold the position according to which the
occupation of Hawaii should be treated differently from
the other cases? An attempt to provide an answer to this
question will be carried out in the next section, through
examining the possible arguments which may be used to
either support or refute such a position.
4. Applicable Law. Intertemporal Law and (Lack
of) Legal Coherence. Irrelevance of the Tem-
poral Argument and Exclusive Role of the
Treaty in the Transfer of Sovereignty
The main argument that could be used to deny the illegal-
ity of the US occupation of Hawaii rests in the doctrine
of intertempoiallatu According to this doctrine, the legality
of a situation "must be appraised [..] in the light of the
rules of international law as they existed at that time, and
not as they exist today"." In other words, a State can be
considered responsible of a violation of international law
— implying the determination of the consequent "sec-
ondary" obligation for that State to restore legality— only
if its behaviour was prohibited by rules already in force
at the time when it was held. In the event that one should
ascertain that at the time of the occupation of Hawaii by
the US international law did not yet prohibit the annex-
ation of a foreign territory as a consequence of the oc-
cupation itself, the logical conclusion, in principle, would
be that the legality of the annexation of Hawaii by the
United States cannot reasonably be challenged. In reality
even this conclusion could probably be disputed through
using the argument of "continuing violations", by virtue
of the violations of international law which continue to
be produced today as a consequence of the American
occupation and of its perpetuation." In fact, it is a gen-
eral principle of international law on State responsibility
that "[t]he breach of an international obligation by an act
of a State having a continuing character extends over the
entire period during which the act continues and remains
not in conformity with the international obligation". "
However, it appears that there is no need to rely on
this argument, for the reason that also an intertempo-
ral-law-based perspective confirms the illegality — under
international law - of the annexation of the Hawaiian
Islands by the US. In fact, as regards in particular the
topic of military occupation, the affirmation of the ex
injuiia jus non oiitur rule predated the Stimson doctrine,
because it was already consolidated as a principle of gen-
eral international law since the XVIII Century. In fact,
"[i]n the course of the nineteenth century, the concept
try", (2014) Hartard International Retien, 58; Karin Louise Hermes, "Making a nation and faking a state: illegal annexation and sovereignty nuseducation in
Hawaii", (2016) 46 Pacific Geographies 11; David Keanu Sal, "United States Belligerent Occupation of the Hawaiian Kingdom", in David Keanu Sal (ed.), The
Royal Commission of Inquiry: Investigating lVar Crimes and Human Rightr Violations Commined in the Hawviian Kingdom (2020) 97; Andrew B. Reid, "Perpetual Wu in
Paradise: Illegal Occupation, Humanitarian Law, aid Liberation of the Hawaiian Kingdom", (2021) 78 National Lawyers Guild Reties, 6.
50 See Gerald Fiumaurice, "The Law and Procedure of the International Court of Justice", (1953) 30 Britisb Year Book of International Lam 1, at 5. On the
doctrine of interteniporal law see TasGm Olawale Elias, "The Doctrine of Inteetemporal Law", (1980) 74 American journal of International Las, 285; Ulf Lin-
derfalk, "The Application of International Legal Norms Over Time: The Second Branch of Intertemporal Law", (2011) LVIII Netherlandr International Lam
Relies, 147; Li Zhenni, "International Intertemporal Law", (2018) 48 California Ir/estern International Lam journa1341; Steven Wheatley, `Revisiting the Doctrine
of Intertemporal Law", (2021) 41 Oxford journal of Legal Studies 484.
51 Witli regard to the issue of continuing violations in the Hawaiian territory, related in particilar to human rights and the principle of self-determination
of peoples, see Federico Lemarini, "International Human Rights Law and Self-Deterinination of Peoples Related to the United States Occupation of the
Hawaiian Kingdom", in David Keanu Sai (ed.), The Royal Commission of Inquiry: Inrrstigating lVar Crimes and Human Rights Violations Committed in the Harridan
Kingdom (2020) 173, at 185-92.
52 See Article 14(2) of the International Law Coinmission's Articles on Responsibility of States for Internationally Wrongful Acts, 2001, at 11up." 1_ eegil
un.oip/ilc/texts/instruments/enplish/draft articles/ 9_6_2001.pdf (accessed 2023).
Vol. 6, Num. 2, June 2024
vol. 6, num. 2 juin 2024
of occupation as conquest was gradually abandoned in
favour of a model of occupation based on the tempo-
rary control and administration of the occupied territory,
the fate of which could be determined only by a peace
treaty";53 in other words, "the fundamental principle of
occupation law accepted by mid -to -late 19th-century
publicists was that an occupant could not alter the po-
litical order of territory,,.54 Consistently, "[1]es Atats qui
se font la guerre rompent entre eux les liens formes par
le droit des gens en temps de paix; mail it ne depend
pas d'eux d'aneantir les faits Sur lesquels repose cc droit
des gens. Its ne peuvent detruire ni la souverainete des
Mats, ni leur independance, ni la dependance mutuelle
des nations".55 This was already confirmed by domestic
and international practice contemporary to the occupa-
tion of the Hawaiian Kingdom by the United States. For
instance, in 1915, in a judgment concerning the case of
a person who was arrested in a part of Russian Poland
occupied by Germany and deported to the German ter-
ritory without the consent of Russian authorities, the Su-
preme Court of Germany held that an occupied enemy
territory remained enemy and did not become national
territory of the occupant as a result of the occupation."
Also, in 1925, the Swiss arbitrator Eugene Borel, in the
famous Ajfaire de la Dettepublique ottoman, held that
"[q]uels que soient les effets de 1'occupation
d'un territoire par 1'adversaire avant le reta-
blissement de la paix, it est certain qu'a elle
seule cette occupation ne pouvait operer ju-
ridiquement le transfert de souverainete [...]
L'occupadon, par Fun des belligerants, de
[..] territoire de 1'autre belligerant est un pur
fait. C'est an etat de chosen essentiellement
provisoire, qui ne substitue pas legalement
Pautorite du belligerant envahisseur a celle
du belligerant envahi"."
In the context of international diplomatic practice,
already in 1815
"the Congress of Vienna endorsed the prin-
ciple of legitimacy of the original (indige-
nous) sovereign over a territory. On the basis
of this principle, the original sovereigns of
most of the nations conquered by Napoleon
were regarded as having retained their sover-
eignty, despite having been conquered by the
Napoleonic armies [...] sovereignty remained
with the original holder of the territory, who
was regarded as the `legitimate sovereign'.
The conqueror of the territory [...] was ille-
gitimate and therefore could not acquire de
jure sovereignty"58.
This principle was eventually codified in Article 42 of
the 1907 Hague Regulations.59 It follows that, already at
the time of the American occupation of the Hawaiian
Kingdom, military occupation was considered as "not
affect[ing] sovereignty. The displaced sovereign loses
possession of the occupied territory de facto but it retains
title de jure [i.e. "as a matter of law"]".' Consistently, in
the event of illegal annexation, "the legal existence of
[..] States [is] preserved from extinction"," because "il-
legal occupation cannot of itself terminate statehood"."
The fact that the occupation of the Hawaiian Kingdom
has continued uninterrupted for a long time does in no
way impact on this conclusion, since "[p]rolongation of
the occupation does not affect its innately temporary na-
ture"." As a consequence, for how precarious it may be,
"the sovereignty of the displaced sovereign over the oc-
53 See Andrea Camano, The Transformation of Omupied Territory in Inlernationallaw (Brill, The Hague, 2015) at 18-19.
54 See Nehal Bhuta, `The Antinomies of Transformative Occupation", (2005) 16 European journal of International Law721, at 726; see also Matthew Craven,
"The tyranny of strzrtgers: transformative occupations old and new", (2021) 9 London Renew of Internationallnm 197, at 201-2, writing that "[b]y the early
19th century [..] the idea had started to emerge [..] that mere nulitary,occupation would not, in itself, result in a transfer of sovereignty: Rather, it constituted
a provisional regime of factual occupation that left untouched the question of sovereignty and, as a consequence, brought with it certaut constraints upon
the authority of the occupant".
5.5 Tlteophile Funck-Brentano and. Albert Sorel, Precis du droll desgen (Plon, Paris, 1877) at 233.
56 See Judgment IV ; 407115, Supreme Court of Germany in Criminal Cases, 26 July 1915, in 21 Deutsebe jurhtenzeitung 134 (1916).
57 See Affaire de la Dette publique ottoman (Bulgariy Imk, Palestine, Tmnsfordani , Grea, Dalie et Turquie), 18 April 1925, Reports of International Arbitral Awrdq
Volume I, 529, also available at <jup / /1 g Ig/i / / 1 I /529-614 lf> (accessed 30 January 2023), at 555.
58 See Carcano, cit., at 20-21 (footnotes omitted).
59 See section 2 above.
60 See Yoram Dinstein, The International Lan, of Belligerent Ocapation, m Ed., Cambridge, 2019, at 58.
61 See lames Crawford, The Creation of States in International Law, m' Ed., Oxford, 2006, at 702.
62 See Brownie, cit., at 78.
63 See Dinsteht, cit., at 58.
Vol. 6, Num. 2, June 2024 W vol. 6, num. 2 juin 2024
cupied territory is not terminated'.11
In light of the foregoing, it appears that the theories ac-
cording to which the effective and consolidated occupation
of a territory would determine the acquisition of sov-
ereignty by the occupying power over that territory — al-
though supported by eminent scholars" — must be con-
futed. Consequently, under international law, "le transfert
de souverainete ne peut etre considers comme effectue
juridiquement que par 1'entree en vigueur du Traits qui
le stipule et a dater du jour de cette mise en vigueur","
which means that "[t]he only form in which a cession [of
a territory] can be effected is an agreement embodied in
a treaty between the ceding and the acquiring State. Such
treaty may be the outcome of peaceable negotiations or
of war" 'This conclusion had been confirmed, among
others, by the US Supreme Court Justice John Marshall
in 1928, holding that the fate of a territory subjected to
military occupation had to be "determined at the treaty
of peace".Ge
The validity of the conclusion just reached is also con-
firmed under the perspective of the right of peoples to
self-determination. As is well known, it is a prerogative
which — in its external dimension — entitles a people under
colonization or foreign occupation to exercise a right to
independence, or secession, from the State by which it
is de facto occupied or subjugated. In principle, it appears
evident that the Hawaiian people — it being a people sub-
jected to foreign occupation — is entitled to benefit from
such a right. However, also in this case an issue of inter-
te7Volald arises. In fact, according to a reputable schol-
arly position, the right of peoples to self-determination
could not be applied retroactively, i.e. to situations of for-
eign domination produced before the consolidation of
the right in point as a rule of positive international law. In
practical terms this would mean that the right of peoples
to self-determination would be applicable only to instanc-
es of foreign dominations established before World War
II," with the consequence that for all such instances the
acquisition of sovereignty by the occupying power should
be considered as crystallized and legally incontrovertible.
With all due respect, this position is not agreeable, for the
reason that while it is indubitable that the right of peo-
ples to self-determination developed as a rule of general
international law after World War II,70 in the context of
relevant practice it has been mainly applied (retroactively)
to support the acquisition of political independence by
peoples subjected to colonization, hence to situations of
foreign domination produced long Gefote World War II. In
this respect, since the right of peoples to self-determi-
nation equally applies to situations of colonization and
of subjugation determined by military occupation, there
is clearly no reason why the situation of the Hawaiian
people should be considered as differing from that of
colonized peoples. It is also noteworthy that the ICJ has
recently held that the right to self-determination of peo-
ples, where it has not been properly exercised and the
current political situation of a territory does not reflect
"the free and genuine expression of the will of the peo-
ple concerned",71 cannot be considered as having been
extinguished with the passing of time. In fact, the circum-
stance of preventing a people from exercising its right to
self-determination over time "is an unlawful act of a con-
tinuing character"' resulting from the fact of maintaining
the situation of foreign domination.
5. Conclusion. Applying International
Law on the Use of Force A la carte?
In 1795 — in his masterpiece Perpetual Peace — Immanuel
Kant wrote that "[t]he intercourse, more or less close,
which has been everywhere steadily increasing between
the nations of the earth, has now extended so enor-
mously that a violation of right in one part of the world
64 Ibid. (footnotes omitted). See also, consistently, Peter M.R. Stick, The Politics of Military Orrlspalion, Edinburgh, 2009, at 168 and 230.
65 See, e.g., Benendetto Conforti, Diriar internationale (Editoriale Scientifica, Napoli, 2018), at 209.
66 See Affairs de la Denepublique ottoman, cit, at 555.
67 See Lassa FL Oppenheirn, Oppenheimilnternationallaw, 7e' Ed, vol. 1, 1948, at 500. See also Enunerich de Vattel, Thelaw of ATations (English edn., 1849),
BE III, chap. %III, pain. 197; Jan Hendrik Willem Verzijl, International Law in Hiaorital Perrpectim— Part IKA, The Laws of %Vm (1978) 151; Jonathan Gurnz,
"International law and the transformation of war, 1899-1949: the case of military occupation", (2018) 90 journal of Modern Hittory 621, at 627.
68 See American Insurance Company v. Peters, US Supreme Court, 1828, 1 Peterr 542.
69 See Confetti, cit., at 27.
70 See Lenzedni, "International Human Rights Law and Self -Determination of Peoples Related to the United States Occupation of the Hawaiian King-
dom", cit., at 209-10.
71 See legal Consegnemas of the Separation of the ChggosArchipelago from Mauritius in 1965, Advisory Opinion (25 February 2019), at hhups:/Avwwicjsjj org/
pubL /fir /case-related/169/169-20190225-ADV-01-00-FNndf (accessed 30January2023),para. 172.
72 Ibid., para. 177.
Vol. 6, Num. 2, June 2024
vol. 6, num. 2 join 2024
cupied territory is not terminated"."
In light of the foregoing, it appears that the theories ac-
cording to which the eectitte and consolidated occupation
of a territory would determine the acquisition of sov-
ereignty by the occupying power over that territory — al-
though supported by eminent scholars" — must be con-
futed. Consequently, under international law, "le transfert
de souverainete ne pent etre considers comme effectue
juridiquement que par Pentree en vigueur du Traits qui
le stipule et a dater du jour de cette mice en vigueur",G6
which means that "[t]he only form in which a cession [of
a territory] can be effected is an agreement embodied in
a treaty between the ceding and the acquiring State. Such
treaty may be the outcome of peaceable negotiations or
of war" "This conclusion had been confirmed, among
others, by the US Supreme Court Justice John Marshall
in 1928, holding that the fate of a territory subjected to
military occupation had to be "determined at the treaty
of peace"."
The validity of the conclusion just reached is also con-
firmed under the perspective of the right of peoples to
self-determination. As is well known, it is a prerogative
which — in its external dimension — entitles a people under
colonization or foreign occupation to exercise a righttto
independence, or secession, from the State by which it
is de facto occupied or subjugated. In principle, it appears
evident that the Hawaiian people — it being a people sub-
jected to foreign occupation — is entitled to benefit from
such a right. However, also in this case an issue of inter-
tei*otalily arises. In fact, according to a reputable schol-
arly position, the right of peoples to self-determination
could not be'applied retroactively, i.e. to situations of for-
eign domination produced before the consolidation of
the right in point as a rule of positive international law. In
practical terms this would mean that the right of peoples
to self-determination would be applicable only to instanc-
es of foreign dominations established before World War
II,69 with the consequence that for all such instances the
acquisition of sovereignty by the occupying power should
be considered as crystallized and legally incontrovertible.
With all due respect, this position is not agreeable, for the
reason that, while it is indubitable that the right of peo-
ples to self-determination developed as a rule of general
international law after World War II," in the context of
relevant practice it has been mainly applied (retroactively)
to support the acquisition of political independence by
peoples subjected to colonization, hence to situations of
foreign domination produced long before World War II. In
this respect, since the right of peoples to self-determi-
nation equally applies to situations of colonization and
of subjugation determined by military occupation, there
is clearly no reason why the situation of the Hawaiian
people should be considered as differing from that of
colonized peoples. It is also noteworthy that the ICJ has
recently held that the right to self-determination of peo-
ples, where it has not been properly exercised and the
current political situation of a territory does not reflect
"the free and genuine expression of the will of the peo-
ple concerned"," cannot be considered as having been
extinguished with the passing of time. In fact, the circum-
stance of preventing a people from exercising its right to
self-determination over time "is an unlawful act of a con-
tinuing character"'2 resulting from the fact of maintaining
the situation of foreign domination.
5. Conclusion. Applying International
Law on the Use of Force a la carte?
In 1795 — in his masterpiece Peipietual Peace — Immanuel
Kant wrote that "[t]he intercourse, more or less close,
which has been everywhere steadily increasing between
the nations of the earth, has now extended so enor-
mously that a violation of right in one part of the world
64 Ibid. (footnotes otnitted). See also, consistently, Peter M.R. Stork, The Politic of Military Occupation, Edinburgh, 2009, at 168 and 230.
65 See, e.g., Benendetto Conforti, Difive imernationale (Editoriale Scientifiea, Napoli, 2018), at 209.
66 See Affaire de la Dettepubligae otionane, cit, at 555.
67 See Lassa FL Oppenheim, Oppenbeimi International Lain, 7t" Ed., vol. 1, 1948, at 500. See also Emmerich de Vattel, Tbelaw of Nations (English echn., 1849),
Bk. III, chap. %III, pare. 197; Jan Hendrik Willem Verzijl, International Low in Historical Perrpertive — Part DIA, The Laws of War (1978) 151; Jonathan Gumz,
"International law and the transformation of war, 1899-1949: the case of tnilitary occupation", (2018) 90 journal of Modern History 621, at 627.
68 See American Insurance Company n Peters, US Supreme Court, 1828, 1 Peterr 542.
69 See Conforti, cit., at 27.
70 See Lenzerini, "International Human Rights Law aid Self -Determination of Peoples Related to the United States Occupation of the Hawaiian King-
dom", cit., at 209-10.
71 See Legal Consequences of The Separation of Me ChagosArcbipelago from Marwrliur in 1965, Advisory Opinion (25 February 2019), at https,/ /vvwwici-cii.orv/
pubic/files/case-related/169/169-20190225-ADV-01-00-EN odf (accessed 30 January 2023), part. 172.
72 Ibid., para. 177.
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vol. 6, num. 2 juin 2024
is felt all over it. Hence the idea of a cosmopolitan right is no fantastical, high-flown notion of right, but a comple-
ment of the unwritten code of law— constitutional as well as international law —necessary for the public rights of
mankind in general and thus for the realisation of perpetual peace"." Unfortunately, still today, abundantly inside the
XXI Century, while the "cosmopolitan right" Kant referred to has actually developed, the goal of perpetual peace
appears a chimera, especially due to the distorted use of the main pertinent rules at the service of States' imperialistic
interests. Even with regard to the supreme imperative of preventing and suppressing acts of aggression or other
breaches of the peace, it clearly appears that States behave like they were seated at a restaurant, deciding a la carte
which violations are justified on the basis of a valid excuse (their own) and which must be absolutely suppressed in
the interest of the whole international community (those committed by others), (only) the latter being considered as
representing an intolerable offence for humanity. Unfortunately, in fact, the same States which raise their voices high-
est when a breach occurs, have more than one spot on their sheets. While the human gender has immensely evolved
in terms of technology and scientific knowledge, international law — i.e., the law regulating the relations among the
main actors of the international community — remains still today at a primitive stage, being too much exposed to
power games. This results in huge injustices and legal vacuousness, which frustrate the path of humanity towards the
most important aspect of evolution to which it should aspire, i.e., justice, peace, mutual confidence and friendship
among the peoples living in the world.
73 See Per Peam.. A Milosophiml Esrg (London 1795), eBook version available at hups// w.gut�gorg/files/50922/50922-h/5o922-h htm
(accessed 26 March 2023).
Vol. 6, Num. 2, June 2024 40 vol. 6, num. 2 juin 2024