Occupation and Human Rights: A Preliminary Look at Prof. Federico Lenzerini’s Analysis of Hawaiʻi’s International Status

#99 in the Moʻolelo series

Human Rights are a form of what could be called “cross cutting cleavages” – for me, as a teacher of the law of occupation (at UH Mānoa), human rights cut across the primary focus of my course, which are the rights of states (i.e., countries). Human Rights, on the other hand, are rights of individuals and non-state groups, and in some cases, supersede the rights of states. States, while sovereign, are not supposed to be able to simply trod on the rights of their own citizens without international attention and sometimes intervention. Below is a short video, “The Story of Human Rights,” that illustrates – very effectively in my view – the long development of the notion of human rights. It’s quite illuminating and a pleasure to watch – a rare feature of content on international law!

So it was with great interest that I read Federico Lenzerini’s* chapter “INTERNATIONAL HUMAN RIGHTS LAW AND SELF-DETERMINATION OF PEOPLES RELATED TO THE UNITED STATES OCCUPATION OF THE HAWAIIAN KINGDOM” in the Royal Commission of Inquiry’s report Investigating War Crimes and Human Rights Violations Committed in the Hawaiian Kingdom, to see how these different forms (or levels) of law intersect in the case of Hawaiʻi.

On Human Rights, Lenzerini writes:

…in the Preamble of the 1993 Vienna Declaration and Programme of Action, ʻall human rights derive from the dignity and worth inherent in the human person, and […] the human person is the central subject of human rights and fundamental freedoms.’ Human rights are therefore inherent in all human beings—for the sole reason of them being human— and their effective achievement is essential to allow that the level of wellbeing of persons is consistent with the minimum conditions for human dignity to be realized. In other words, human rights constitute an essential prerequisite for allowing human beings to give realization to their basic aspirations and wishes, which are at the basis of a good and enjoyable life. In synthesis, human rights may be considered the basic rights and freedoms belonging to every person living in the world, from the initial to the final instant of her existence.

Lenzerini in Sai (ed.), 2020, 173
Professor Federico Lenzerini

A detailed analysis of Lenzerini’s article will be forthcoming, but one area in which he may receive some criticism is a section in which he asserts that Hawaiians have followed the wrong trajectory in using Indigenous rights as the basis of their claims:

In contemporary times a fervent debate is ongoing concerning the exact meaning and contents of the right to self-determination, the “peoples” that are entitled to it, as well as the concrete prerogatives arising from it. The main reason of such a debate is that the concept of self-determination of peoples, considered as a whole, has recently broadened to cover situations which were not contemplated in its traditional characterization, to which we have referred so far in this chapter. The debate in point is developing not only among scholars and legal experts, but also among activists, NGOs and other actors, who, while driven by the most commendable intentions, do not always possess the necessary competences to manage the issue with suffi- cient clarity. This is the reason why confusion and misunderstandings are quite common with respect to the identification of the different peoples in the world that have a title to self-deter- mination and, especially, of the concrete prerogatives to which they are entitled. In fact, while the contents of—and the implications arising from—the claims advanced by such peoples are often notably different, the real outcomes to which each claim of self-determination may lead are frequently misunderstood, to the point of attributing to a given people prerogatives that are totally different from those to which such a people is entitled.

In recent times, the Hawaiian people has been the object of this kind of misunderstanding, in the sense that its right to self-determination has been referred to as the specification of the right in point as recognized in favour of indigenous peoples. This has especially happened as regards the case of the planned construction of the thirty meter Telescope on Mauna Kea, with respect to which the need to “ensure [that] the human rights of Indigenous Peoples opposed to the telescope project are respected, protected and fulfilled” has been claimed, referring especially to the right of free, prior and informed consent.

Lenzerini in Sai (ed.), 2020, 212

In short, many Hawaiians and their well-intentioned allies have followed a human/Indigneous rights trajectory, when in fact their set of rights lay in the much stronger and more developed regime of state’s rights (the rights of nation-states to exist, including under occupation). Lenzerini will no doubt receive criticism for this – how dare he, as a non-Hawaiian, claim that we were wrong in our path toward self-determination? – they will shout. But Lenzerini’s expertise in actually in Indigenous rights (as seen below), and so he can hardly be charged with a lack of understanding or bad intent when attempting to clarify this misunderstanding (if thatʻs what it is).

One of Lenzerini’s findings addresses a critically important question: does the Council of Regency have the authority to represent the Hawaiian Kingdom. He finds that:

Under international humanitarian law, the proclamations of the Council of Regency are not divested of effects as regards the civilian population of the Hawaiian Islands. In fact, considering these proclamations as included in the concept of “legislation”…they might even, if the concrete circumstances of the case so allow, apply retroactively at the end of the occupation, on the condition that the legislative acts in point do not “disregard the rights and expectations of the occupied population.”

Benzerini in hawaiiankingdom.org (italics original)

We see here a tentative but real confirmation that the Council can act on behalf of the occupied state, albeit in an acting capacity.

*Federico Lenzerini is Ph.D. of International Law and Professor of Public International Law and International Human Rights Law at the Department of Law of the University of Siena (Italy). He is also Professor at the LLM [Master’s of Law] programme in Intercultural Human Rights at the St. Thomas University School of Law, Miami (FL), USA. He is Consultant to UNESCO (Paris) and has been Counsel to the Italian Ministry of Foreign Affairs for international negotiations related to cultural heritage. He has been the Rapporteur of the ‘Committee on the Rights of Indigenous Peoples’ of the International Law Association (ILA) and is currently Rapporteur of the ILA Committee on ‘Implementation of the Rights of Indigenous Peoples’ and member of the ILA ‘Committee on Cultural Heritage Law’. His main fields of research are human rights law, rights of indigenous peoples, law of cultural heritage and asylum and refugee law.

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