INSTITUTE FOR THE ADVANCEMENT OF HAWAIIAN AFFAIRS 86-649 Puuhulu Road Wai`anae, Hawaişi 96792-2723 Tel: (808) 696-5157 Fax: (808) 696-7774 2 December 1993 A Primer on International Activities as related to The Quest for Hawaiian Sovereignty by Poka Laenui Two distinct and sometimes overlapping areas of international law address the question of Hawaiian sovereignty. This overlapping has often-times caused confusion and exasperation among people concerned with sovereignty. The first area deals with the rights and protection of indigenous peoples of the world. The second deals with decolonization around the world. Their applicability to Hawaiian sovereignty depends on the position being advocated. For advocates of indigenous peoples rights to be accorded by the State of Hawaişi or the United States of America, their principle area of work would be limited to the question of indigenous peoples. But for those who incorporate in the advocacy of Hawaiian sovereignty, not only the special protection of indigenous peoples but the broader human right of self-determination of the Hawaişi people of all races, their areas of work are in both the indigenous as well as the decolonization fields. As to who is advocating what, I leave for another time and place. Let's turn now to a description of the international arena and take a brief look at the rights of indigenous peoples and of decolonization as it relates to Hawaişi. ============================================================================== TABLE OF CONTENTS I. INTERNATIONAL DEVELOPMENT OF INDIGENOUS PEOPLES' RIGHTS . . 3 A. ILO Conventions 107 & 169. . . . . . . . . . . . . . . 3 B. United Nations and indigenous peoples. . . . . . . . . 4 1. U.N. Working Group on Indigenous Populations . . 4 2. Special Studies: . . . . . . . . . . . . . . . . 5 i. "treaties, agreements & other constructive arrangements" 5 ii. "cultural and intellectual property of indigenous peoples" 5 3. International Year for the World's Indigenous People 5 C. Other areas of activities . . . . . . . . . . . . . . 6 II. DECOLONIZATION INTERNATIONALLY AND ITS RELEVANCE TO HAWAI`I . . . . . . . . . . . . . . . . . . . . . . . . . 6 A. General Principle of Self-Determination . . . . . . . 6 B. U.S. under international obligations: the United Nations 7 C. Growing International Awareness In Hawaişi . . . . . . 10 D. Relevant colonial history regarding Hawaişi . . . . . 11 i. The changing face of Hawaişi, 1900 - 1959:. . . . 11 ii. Hawaiian statehood - 1959. . . . . . . . . . . . 13 III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . 13 I. INTERNATIONAL DEVELOPMENT OF INDIGENOUS PEOPLES' RIGHTS A. ILO Conventions 107 & 169 In 1957, the International Labour Organization adopted it's Convention 107 "Concerning the Protection and Integration of Indigenous and other Tribal and Semi-Tribal Populations in Independent Countries." In doing so, the ILO became the first world governmental organization to specifically address the concern of indigenous peoples. When it did so, it was done without participation of indigenous peoples, it followed the prevailing social theory that societies all develop in a stepped pattern of civilization, that indigenous peoples were behind the rest of society in that development and the ILO applied an integration approach to the protection of indigenous peoples in that development process. In the late 1960s and early 1970s, indigenous peoples, especially from North America, carried their national campaigns into the international arena, complaining of the treatment they were receiving from governments which now asserted jurisdiction over their territory. Two major international indigenous organizations became prominent at that time, the World Council of Indigenous Peoples with its main office in Canada through the National Indian Brotherhood (now the Assembly of First Nations) and the International Indian Treaty Council with its office in the United States of America through the American Indian Movement. The WCIP in its General Assembly in the late 1970s condemned the ILO Convention for following a policy of integration and which failed to consult or include indigenous representatives in its discussion and adoption of the convention. The WCIP called for a new approach of indigenous empowerment rather than integration, ingrained in a revised convention to deal with indigenous peoples. The ILO responded by calling, in 1986, an expert committee to review and recommend revisions to the convention. It invited a designee from the WCIP and another from Survival International to join its tripartite committee of government, worker and employer representatives. Based upon that committee's review, the ILO held a two year process in discussing and adopting a revised convention. The process included indigenous people in various government and union delegations as well as many indigenous peoples' organizations. The ILO, in 1989, adopted Convention 169 "concerning indigenous and tribal peoples in independent countries." The change in name reflects many of the important improvements over the prior convention. This new convention shifted the emphasis from integration to empowerment of indigenous peoples. It placed greater emphasis on the collective rights of indigenous peoples as opposed to the individual rights. It replaced the term "populations" with the term "peoples" thus having great implications in international law as regards the right to self-determination. Land rights were greatly expanded under the new convention. Employment conditions, vocational training, social security and health programs, education and communication all were greatly enhanced in this new convention. Migration across borders, a new subject, was added. Sufficient numbers of governments have since ratified the convention making it today part of the body of international law and the only active international instrument specifically addressing the rights of indigenous peoples. Most, if not all international indigenous organizations, have supported the new convention over the old. B. United Nations and indigenous peoples 1. U.N. Working Group on Indigenous Populations The UN's consideration of the problems facing indigenous peoples began in earnest with a "study of the problem of discrimination against indigenous populations" conducted from 1971 to 1984. Oftentimes called the Martinez-Cobo report after the special rapporteur charged to carry out the study, it is a comprehensive study of five volumes reviewing the conditions of indigenous peoples and making recommendations. Even before its completion, and as the early volumes were completed, it influenced the UN system in 1982 into forming the Working Group on Indigenous Populations, consisting of five "experts", selected by governments of the five UN regional caucuses. The working groups charge was to review developments pertaining to the promotion and protection of human rights and fundamental freedoms of indigenous populations, including information particularly from indigenous peoples. It was also charged with developing standards concerning rights of indigenous populations. That working group has had yearly meetings in Geneva and is among the largest UN forums in the field of human rights. Although not established as a chamber of complaints against governments, its sessions have permitted direct criticism of current practices. It meets annually in late July of each year. A voluntary fund for Indigenous Populations has been established in which governments make contributions to assist indigenous peoples representatives to travel and participate at the working group sessions. The fund is small, generally less than $60,000 (US) and only a small number of representatives are able to use it. A draft declaration of rights of indigenous peoples have emerged from this working group and is now making its way to the UN General Assembly. If adopted, it will become not binding international law upon any country, but a guideline for governmental conduct. The working group will continue to meet annually, reviewing developments of indigenous peoples. 2. Special Studies: i. "treaties, agreements & other constructive arrangements" In 1988, the Economic and Social Council authorized a study under the guidance of Special Rapporteur Miguel Alfonso Martinez of treaties, agreements & other constructive arrangements between states and indigenous populations. The special rapporteur is also a member of the UN working group and reports to the group on a yearly basis. Mr. Alfonso Martinez has invited indigenous groups to forward information of such arrangements for his study. There have been some question over the appropriateness of including within his study treaties entered into between independent nations recognized in the international arena but which have since been colonized by one of the treaty parties. To label such international treaties as between states and indigenous populations would be a derogation of the status of such treaties and a denial of the right to decolonization already established in international law. Hawaişi's situation raises a prime example of this concern. ii. "cultural and intellectual property of indigenous peoples" The UN in 1991 has appointed Special Rapporteur Erica-Irene Daes to study the cultural and intellectual property of indigenous peoples. This study includes questions dealing with the integrity of indigenous knowledge, whether and to what extent their cultural heritage are to be considered public domain, the appropriateness of patenting indigenous plant varieties and genetic research, the appropriateness of projects to carry out a world- wide sampling of indigenous peoples tissue and hair, the return of indigenous artifacts and skeletal and other human remains, etc. This is an on-going study in which the special rapporteur makes a yearly report to the working group. 3. International Year for the World's Indigenous People The UN General Assembly, in 1990, proclaimed the year 1993 as the International Year for the World's Indigenous People, under the theme, "Indigenous people: a new partnership." The year was said to encourage the development of new relationships between States and indigenous peoples and between the international community and indigenous peoples. It was to be a turning point in the struggle by indigenous peoples to gain recognition of their rights in areas such as self-rule, land, natural resources, language, education, health, housing, employment, intellectual and cultural property and the status of treaties concluded with States. The year opened on Human Rights Day, December 10, 1992, with indigenous representatives addressing the UN General Assembly in an historic, first time ever, occasion. Twenty indigenous representatives were selected from various parts of the world; Poka Laenui spoke on behalf of the Pacific Asia Council of Indigenous Peoples. Midway through the year, at the yearly session of the UN Working Group on Indigenous Populations, it seemed the year was destined to failure. There was very little money to carry out serious programs to change the conditions of indigenous peoples. There was lack of effective coordination in managing the year. It seems there was no seriousness in developing a new partnership, but merely a tactic to overcome the outrage of indigenous peoples from the Americas for declaring 1992 as the year of the Encounter of Two Worlds - a celebration for Christopher Columbus. There is now a movement by certain indigenous organizations to declare an international decade for the world's indigenous peoples, giving much more time to make serious changes to the plight of indigenous peoples around the world. C. Other areas of activities There are now a growing awareness of the plight of indigenous peoples around the world as well as the treasures of knowledge indigenous peoples possess. International conferences and activities are being held regularly to define or develop indigenous rights. Museums, anthropological associations, numerous environmental groups, educational societies, world health and development agencies and many others are trying to include in one or another aspect of their work, indigenous peoples. II. DECOLONIZATION INTERNATIONALLY AND ITS RELEVANCE TO HAWAI`I Colonization and decolonization is a subject which falls under the larger umbrella of self-determination. Self-Determination has been called the father and the mother of all human rights. It is out of self-determination that terms such as sovereignty, independence, autonomy, kingdom, etc. emerges. Understanding the rights which flow from the principle of self-determination may help in understanding the form of expressing one's choice of that exercise. A. General Principle of Self-Determination In a discussion of the rights of a people, self-determination is the collective right of such a people to determine the course of their lives and their destinies. In Western political thought, the concept that the sole source of legitimate political power is the will or consent of the people arose in the 14th century by Marcilius of Padua. It became the driving force of nations struggling for self-determination, finding its way to the French and American revolutions. But how does one define the "self?" The "self" or the people who formed nation-states, were formed around their chief provinces, for example, France from the Ile de France and Poland from Polonia. (Cobban, The Nation State and National Self-Determination (1969)) In some cases, common cultural and political bonds were absent except for a common desire to stay together, for example, the Swiss Confederation and the United States of America. Indeed, the American revolution affirmed that a group of people need not necessarily have a common heritage, language, ethnic background, or religion to assert their right as a people entitled to self-determination. Loyalty to a territory alone could be a sufficient bond. Indeed, the demand of a historic community to possess its own nation has been considered sufficient to invoke the right of self-determination. (Paine, Rights of Man (1969)) When a group of people share a common sentiment and an identification of common aims, a nation is born. That "nation" or "self" is entitled to "determination" - the right to determine the course of their lives and to govern their destiny. Determination can best be seen as a long line upon which a people chose to place themselves. On one end of that line is integration into another nation. On the other end is emergence as a sovereign independent country. Given this broad and very quick treatment of the principle of self- determination, let us turn now to the development of this right in the more recent past, the last 50 years. B. U.S. under international obligations: the United Nations In 1945, under the charter of the United Nations at Article 73, the United States was charged with an obligation to transmit to the U.N. information on territories held by it under a colonial type arrangement ("Non-Self-Governing Territories"). Hawai`i was included as such a territory, along with Alaska, American Samoa, Guam, Panama Canal Zone, Puerto Rico and the Virgin Islands. (General Assembly Resolution 66 of 1946) When these territories reached a full measure of self-government, the reporting requirement was fully met and the administrating power discharged from further international obligations. Self-government was reached when a territory (a) Emerged as a sovereign independent State; (b) Free association with an independent State; or (c) Integration with an independent State. (Principles Which Should Guide Members in Determining Whether of not an Obligation Exists to Transmit the Information, Called for in Article 73(e) of the Charter of the United Nations, Annex to GA Res. 1541 (XV) of 15 December 1960) In 1953, the U.N. General Assembly, based upon the United States report that Puerto Rico had chosen a commonwealth status with the United States, concluded that the U.S. had no further obligation to Puerto Rico as a non-self governing territory to report yearly to the U.N. After the Hawai`i Statehood vote, the U.S. reported to the U.N. that Hawai`i's constitutional status had changed and that it was now a state of the United States. The communique to the U.N. related that a special election was held on June 27, 1959 in which the proposition "Shall Hawai`i immediately be admitted into the Union as a State?" was adopted. The communique did not describe the events leading up to the U.S. takeover and control of Hawai`i nor did it discuss the fact that only U.S. citizens were allowed participation in that referendum. Upon this communique, the U.N. General Assembly by Resolution 1469 (XIV) expressed an opinion that Hawai`i effectively exercised the right to self-determination and had freely chosen its status as a state of the Union. The U.S. was thus relieved of further responsibility to report to the U.N. As the 1960s began, the international movement toward decolonization had a major boost. The U.N. General Assembly passed by an overwhelming majority, without a single dissenting vote, the Declaration on the Granting of Independence to Colonial Countries and Peoples, (GA Res. 1514 (XV) of 14 December 1960) That resolution declared: Considering the important role of the United Nations in assisting the movement for independence in Trust and Non-Self-Governing Territories, Recognizing that the peoples of the world ardently desire the end of colonialism in all its manifestations, Convinced that the continued existence of colonialism prevents the development of international economic co-operation, impedes the social, cultural and economic development of dependent peoples and militates against the United Nations ideal of universal peace, .... Believing that the process of liberation is irresistible and irreversible and that, in order to avoid serious crisis, an end must be put to colonialism and all practices of segregation and discrimination associated therewith, .... Convinced that all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory, Solemnly proclaims the necessity of bringing to a speedy and unconditional end to colonialism in all its forms and manifestations; And to this end Declares that: 1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation. 2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 3. Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence. ... 5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or color, in order to enable them to enjoy complete independence and freedom. The U.N. established a Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of independence to Colonial Countries and Peoples, more frequently referred to as the Special Committee of 24, to oversee the progress by metropolitan countries in the decolonization of their territories. The Special Committee, to acquaint itself with the situation in individual territories, sends visiting missions to them. That committee have also observed or supervised elections and plebiscites held in Trust and non-self-governing territories concerning proposed changes in their constitutional status. In the 1980s, that special committee received repeated reports that the United States committed a fraud against the United Nations by reporting that the people of Puerto Rico had freely chosen association with the United States while in reality, tens of thousands who supported independence had been victims of systematic discrimination and persecution by the United States. The committee repeatedly reaffirmed "the inalienable right of the people of Puerto Rico to self-determination and independence," expressing its hope that "the people of Puerto Rico may exercise without hindrance its right to self-determination, with the express recognition of the people's sovereignty and full political equality in conformance with its prior resolution of decolonization." The initial response by the United States to the reopening by the special committee of the question of Puerto Rico's exercise of self-determination was to outright deny that the committee had any competence in the matter. The U.S. argument that Puerto Rico had already been lifted from the list of territories to be decolonized, however, did not convince the special committee. On a yearly basis, the committee insisted that the matter was appropriately before them. The U.S. finally relented and has revisited the question of Puerto Rico's exercise of self-determination. In its recent report of 28 July 1992, the Special Committee: 1. Reaffirms the inalienable right of the people of Puerto Rico to self-determination and independence, in conformity with the General Assembly resolution 1514 (XV) of 14 December 1960, and the application of the fundamental principles of that resolution with respect to Puerto Rico; 2. Trusts that the United States Congress will adopt as soon as possible the legal framework to enable the people of Puerto Rico to exercise their right to self-determination, through popular consultations, in accordance with the principles and practice of the United Nations; .... 4. Decides to keep the question of Puerto Rico under continuing review. Puerto Rico has been under continuing review since the mid-1980s. C. Growing International Awareness In Hawai`i The promotion of decolonization by the U.N., especially in the more recent period, has not been lost to the people of Hawai`i. Other events, closer to home, impacting upon Hawaiian awareness of international rights are the emergence of independent Pacific nations. Beginning with Western Samoa 1962, the Pacific ocean saw the explosion of independence, marking the Pacific map with new nations such as Fiji, Nauru, Tuvalu, Kiribati, Papua New Guinea, Cook Islands, Niue and Vanuatu. After a 10 year lull since the independence of Vanuatu, we have seen the emergence of American territories of Micronesia into full nationhood. In September 1991, the Republic of the Marshall Islands and the Federated States of Micronesia became members of the United Nations. The struggle of the Commonwealth of the Northern Marianas for greater clarity in its relations to its former colonial ruler, the attempts by the Republic of Belau to achieve independence without U.S. military presence, and the developing demands in Guam to application of international standards of self-determination, leading to the right to select emergence as a sovereign independent nation are all struggles on-going in the Pacific. Before the demise of the Soviet Union, the emergence of the nations of Latvia, Estonia and Lithuania, previously fully integrated into the Soviet Union, but within a few months, welcomed into membership of the United Nations, are experiences which also add to the vitality of the principle of decolonization and are being noted here in Hawai`i. D. Relevant colonial history regarding Hawai`i i. The changing face of Hawai`i, 1900 - 1959: Following the overthrow and the eventual annexation by the United States, Hawai`i underwent traumatic changes affecting every aspect of life. Sanford Dole, former President of the Republic of Hawaişi and before that, President of the Provisional Government, was appointed territorial governor. Monopolies in shipping, finance and communications developed. The Big Five, a coalition of five business entities, all finding their roots in the missionary party controlled every aspect of business, media and politics in Hawai`i. Beginning with sugar, they took steps to control transportation, hotels, utilities, banks, insurance agencies, and many small wholesale and retail businesses. When they teamed up with McKinley's Republican Party and the United States Navy, there was virtually nothing left unexploited. All during this period, the myth of the superiority of the Anglo-Saxon race was promoted. A massive brainwashing program was begun to convince Hawaiians that the United States was the legitimate ruler and that the Hawaiians were no longer Hawaiians but Americans. The term Hawaiian was redefined as a racial rather than a national term. Large numbers of citizens of Hawai`i were identified no longer as Hawaiians but as Chinese, Korean, English, Samoan, Filipino, etc. The divide and conquer tactic was employed even among the Hawaişi race, when Congress defined "native Hawaiians" (at least 50% of the aboriginal blood), entitled to special land privileges while depriving others of lesser "blood." Children were forced to attend American schools and there taught to pledge their allegiance to the United States, trained in the foreign laws, told to adopt foreign morality, to speak no language but the foreign (English) and adopt the foreign (American) lifestyle. Official government proceedings was to be conducted in English and not the Hawaiian language. In the schools and college campuses, the language of Hawaişi was found, if at all, taught in the foreign language departments. The customs and traditions and even the cultural names of the people were suppressed in this recycling effort. The great makahiki celebrations honoring Lono, an important god of peace, harvest, agriculture and medicine were never observed or mentioned in the schools. Instead, Christmas was celebrated with plays and pageants. People were coaxed into giving children American names having no ties with their ancestors; names which described no physical substance, spiritual sense or human mood; names which could not call upon the winds or waters, the soil or heat; names totally irrelevant to the surroundings. The arts and sciences of Hawaişi's ancestors were driven to near extinction. The advanced practice of healing through the medicines of plants, water or massage or just the uttered words were driven into the back countryside. The science of predicting the future through animal behaviors, cloud colors, shapes and formations of leaves on trees were discounted as superstitions and ridiculed as old folks tales. The Hawaiian culture was being ground to extinction. In 1948, the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide which states in part: In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; Transmigration took place. The United States controlled immigration. Hawai`i witnessed a tide of Americans bringing with them a barrage of cultural, moral, religious and political concepts. Hawaiians were "persuaded" into mimicking their ways, idolizing their heros, and adopting their living styles. As Americans infiltrated, they took choice jobs with government agencies and management positions with business interests. They bought or otherwise acquired, much lands and resources of Hawai`i. They gained power in Hawai`i, controlled greater chunks of the economy, controlled the public media, entrenched themselves in politics, and joined in the resocialization of the Hawaiians to believe they were Americans. The military turned Hawai`i into its Pacific fortress converting Pearl Harbor from a coaling and fueling station to a major naval port. It bombed valleys and took a major island for its exclusive use as a target range. At will it tossed families out of homes, destroying sacred Hawai`i heirlooms and built instead naval communication towers emitting radiation and ammunition depots hiding nuclear weapons. It declared martial law at will, violating the U.S. constitution, and imposed military conscription over Hawaiian citizens. Freedom of trade was stopped. The U.S. Congress assumed control over foreign relations. Hawaiians could buy only American goods or foreign goods the U.S. approved. The Big 5 controlled all shipping! Every aspect of Hawaişi was Americanized. Military show of strength was constant. Trade was totally controlled. Education and media was regulated. The secret ballot itself became a farce. ii. Hawaiian statehood - 1959 Finally, after three generations of resocialization, "Hawaiians" were given the opportunity to be equal Americans! The United States placed the following question to the "qualified" voters in Hawai`i: Shall Hawai`i immediately be admitted into the Union as a State? (The Admission Act of March 18, 1959, Pub L 86-3, 73 Stat 4) "Qualified" voters were Americans who were residents of Hawai`i for at least 1 year. The U.S. provided the vote for thousands of American citizens brought in through its transmigration program, through military assignments, and through generations of resocialization of Hawaiian citizens. Those who resisted the American domination and insisted on their Hawaiian citizenship could not vote. In its posing the "statehood" question so adeptly, the U.S. government simply foreclosed any real choice of "determination" by limiting Hawai`i to either remaining a territory of the United States or becoming a "State" within its union. The question, "Should Hawai`i be independent?" was never asked. The requirements of self-determination was not met. III. CONCLUSION The call for Hawaiian sovereignty runs deep. It is a call that stretches into a time of long ago, into a people and a culture steeped in spirituality created and recreated out of their circumstances and physical environment. It is a call for respect of the integrity of a people first upon this homeland who set the social foundation upon which people of other ethnicities came. It is a call for the regard for the full realization of the social, economic and cultural rights of the native people of Hawai`i with respect to their social and cultural identity, their customs and traditions and their institutions. It is a call for attributing to these first people the seat of their spirituality, the foundation of their sustenance, the wellspring of their identity - the ``ina which they have traditionally used prior to the interruption of their independent social and political development by the invasion of Hawai`i by United States military forces in January 1893. The events which have been taking place in the international arena have very important implications for the indigenous people here. The call for Hawaiian sovereignty runs wide. It is a call with breadth that encompasses the respect for people of all ancestral backgrounds, for a wide array of ethnic diversity and spiritual expressions. It is a call for respect of the political development of a people who share a commonality of cultural and familial continuity and allegiance to Hawai`i. Within that call is the demand for self-determination, the respect of the people of Hawai`i to their choice of their political, cultural, economic, social and civil arrangements among themselves and their relationship with others. The events which have been taking place in the international arena have very important implications for the people of Hawai`i. I hope this provide a sufficient background for your further consideration of the matter of Hawaiian sovereignty.