The Burden of Proof

The arguments for occupation and the illegality of annexation seem to be going mainstream, at least in Hawaiʻi. Keanu Sai was on the front page of the Star Advertiser, and on Hawai’i Public Radio in the same week. Journalists, while still somewhat dubious of the arguments, also appear to be noticing the establishment’s lack of a credible defense of the status quo. When asked on Hawaiʻi News Now whether the Kingdom of Hawaiʻi still exists, Governor Abercrombie simply stated, “the Kingdom of Hawaiʻi does not exist,” but provided no support for his claim. He did essentially the same thing in a letter to the Secretary of Interior, skimming over the history of annexation in a way my 11th grade students would be embarrassed to do.

At the same time, the burden of proof seems (rightly, it seems) to be on Keanu Sai and his allies to show the veracity of their claims. This is where the burden should be placed in terms of logic: the logical fallacy onus probandi* holds that “the burden of proof is on the person who makes the claim, not on the person who denies (or questions the claim).” So, again, it seems that the burden here is correctly placed. However, in international  law, when it comes to a state (nation-state or country) the burden of proof lies on the party that denies the existence of the state, the Hawaiian Kingdom in this case. This could be called the doctrine of presumption. As International law professor and Permanent Court of Arbitration (World Court) judge James Crawford states:

There is a strong presumption that the State continues to exist, with its rights and obligations, despite revolutionary changes in government, or despite a period in which there is no, or no effective, government. Belligerent occupation does not affect the continuity of the State, even where there exists no government claiming to represent the occupied State.

It seems to me that international law takes precedence in this case. Here logic and international law appear to be at odds, but this is only because the argument for the continued existence of the Kingdom is the surprising one. We must be vigilant in our arguments, because, in my view, this issue will be resolved in discourse. There are other fallacies; for example I have fallen myself for the Argument from ignorance (argumentum ad ignorantiam) – assuming that a claim is true because it has not been or cannot be proven false. Because the “establishment” cannot satisfactorily explain away the claims that Sai and others bring up, does not automatically make those claims true.

*from Latin “onus probandi incumbit ei qui dicit, non ei qui negat”

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8 Comments

Filed under Hawaiian history, Mooolelo, sovereignty, Uncategorized

8 responses to “The Burden of Proof

  1. victor Kawaa

    Aloha !!! I don’t have a degree yet or anything like that….but doesn’t the burden of proof lie within a U.S decision. When it comes to a treaty…..shouldn’t that type of document be available to dispute Hawaiians claims that it does not exist. I know that it seems that they disguised it in an American Resolution….which has no bearing in international law, but isn’t the ball in the U.S government s court to prove that their actions before, during, and after the overthrow were justified? Just trying to clarify. I took like one class with Dr. Vogeler like a year and a half ago and it seems that everything we covered os becoming very relevant. But I left school to take care my keiki, so its still kind hazy for me. Mahalo.

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    • umi

      Iʻm teaching that class now, but even I am still getting my head around the very nitty-gritty details of the law of occupation. My main point here though, is just that it seems like the burden of proof is correctly placed (on the Hawaiians), when in fact it isnʻt because of this conflict between logic and international law…

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      • That’s a viable question victor asked, but how is that applicable if there was no treaty signed? Hence, no annexation? Yet the instrument used in this case by the United States was a joint resolution. And yet a joint resolution by its own writing cannot/does not exceed the untied states own soil? If that is possible, then can U.S now make Iraq the 51st state? Same boundary separation? Same same …
        Mahalo, maka’ainana kine degree here..

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  2. pomai

    Aloha umi
    I was wondering if you had a chance to veiw uncle buzzy’s book and if you think it would tie into the topic up above? Would love to hear your point of veiw.

    Here’s the link- https://vimeo.com/104700096

    Mahalo 4 your time
    Aloha aina

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  3. At the closing of your literature above, “because the “establishment” cannot satisfactory explain….” I don’t understand this last sentence. The queens story or endless other, Blount report…. Joint resolution, easily explained. Did not acquire treaty, nor annexation, but did so everything by a “joint resolution”.. maybe I wrong. Maybe the queen was wrong. Maybe Blount report was wrong. Maybe ku’e petition was wrong. Maybe i seeing akaka bill, kanaiolowalu, doi, nai aupuni, fake constitution wrong… my naau my kupuna alongside me as well our keiki standing against federal recognition are wrong. But maybe WE see them trying to secure they’re unsecured package of our HAWAIIAN KINGDOM once and for all. Act195 surely cures that disease, that “proof of Burden” … settles all claims.. but what do I know, I’m not a kumu in charge of teaching our youth. Just a simple maka’ainana… standing sitting laying on the front lines.. while dr. Sai is on point and I mahalo him for being on point and all those around him. ( ;

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  4. I apologize how I came out… in my last comment. I know you are not saying in any way anything about dr. Keanu Sai. Nor was I defending him. Just was a little concerned about the reply to the haumana above. I respect your works, and mean no disrespect and did not…. e kala Mai.

    No need post any of these, but ?
    Is it possible that using the facts of the joint resolution and or ku’e petitions in the case of burden of proof? Mahalo nui, David k.k. Prais( ;

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