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”