|Synopsis History||"Lance Paul Larsen vs. the Hawaiian Kingdom"
Permanent Court of Arbitration, The Hague
|News Arbitral Log|
COUNCIL OF REGENCY
April 27, 2001
Sir Jeremy Greenstock, KCMG
President of the Security Council, United Nations
One Dag Hammarskjold Plaza, 28th Floor
885 Second Avenue
New York, NY 10017
As a non-Member State of the United Nations, but an independent State nevertheless, I have the honor to inform yourself and the Security Council as follows:
The recent arbitration case held at the Permanent Court of Arbitration, The Hague, between the Acting Government of the Hawaiian Kingdom and a Hawaiian subject stems from the prolonged occupation of our country by the United States of America since the Spanish-American War of 1898. The Arbitral Tribunal, duly constituted, consisted of Professor James Crawford, QC, as President, with Professor Christopher Greenwood, QC, and Mr. Gavan Griffith, QC, serving as associate members.
On November 9, 1999, arbitral proceedings were initiated by Mr. Lance Paul Larsen, by his attorney, Ninia Parks, Esq., against the Acting Government of the Hawaiian Kingdom, by its Council of Regency. The International Bureau of the Permanent Court of Arbitration in The Hague, Netherlands, served as the registry. The attorney for the Claimant alleged that the Council of Regency is responsible for the protection of her client who is a Hawaiian subject, from the illegal actions of the United States government, and its political subdivision, the State of Hawai'i, and therefore liable for redress of those violations of her client's rights as protected by the constitution and laws of the Hawaiian Kingdom, and the 1907 Hague Conventions IV and V. The Acting Government acknowledged the violations, but disputed the liability, due to the circumstances of American occupation.
On October 4, 1999, Mr. Larsen was imprisoned for thirty days, seven of which were solitary confinement, for adhering to Hawaiian Kingdom law, while within the territorial limits of the Hawaiian Kingdom. His adherence to Hawaiian Kingdom law was based upon the principle of international law that provides a duality of legal systems existing in an occupied State, that of the occupied State and that of the occupying State. The Tribunal was asked "...to determine, on the basis of the Hague Conventions IV and V of 18 October 1907, and the rules and principles of international law, whether the rights of the Claimant under international law as a Hawaiian subject are being violated, and if so, does he have any redress against the Respondent Government of the Hawaiian Kingdom?"
On March 3, 1999, the United States of America was provided an opportunity to join in the arbitral proceedings by a conversation between myself and Mr. John Crook of the U.S. State Department in Washington, D.C., but has remained silent throughout the proceedings thereafter. Notwithstanding, pleadings were submitted to the Arbitral Tribunal regarding the dispute, which also included a voluminous amount of annexes provided by the Acting Government of the Hawaiian Kingdom that firmly established the Hawaiian Kingdom as an Independent State under international law since November 28, 1843. On December 7, 8, and 11, 2000, oral hearings were held at the Permanent Court of Arbitration in The Hague, Netherlands, addressing two preliminary concerns of the Tribunal. First, was the dispute between the Parties capable of proceeding under arbitration, and, second, was the United States of America as a necessary party to the arbitration.
On February 5, 2001, the Arbitral Tribunal issued its Award. Regarding the verification of the continued existence of the Hawaiian Kingdom as an Independent State, the Arbitral Tribunal stated the following in paragraph 7.4 of the Award: "A perusal of the material discloses that in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties." As an Independent State, the Hawaiian Kingdom was a subject of international law and was protected from unilateral acts made against it without its consent, especially in regard to the occupation of its territory by the United States of America. Professor James Crawford, The Creation of States under International Law, provides that "Belligerent occupation, per se, does not extinguish the State. And generally, the presumption - in practice a strong one - is in favor of the continuance, and against the extinction, of an established State." To date, the United States of America has not proven its claim over the presumption of Hawaiian Independence before any International Tribunal.
The Arbitral Tribunal continued to state in paragraph 7.4 of the Award that on "...6 July 1898, Joint Resolution No. 55 was passed by the United States House of Representatives and Senate to provide for the annexation of the Hawaiian Islands to the United States. This followed an uncompleted process of annexation attempted during the administration of President Grover Cleveland in 1893." It is a well known principle of international law that an internal law of one Independent State cannot affect the territory of another Independent State, which is limited by the extent of the territory of the Independent State that enacted the statute. Thus, a Joint Resolution enacted by the United States Congress cannot affect the territory of the Hawaiian Kingdom, as an Independent State, no more than it could affect the territory of the United Kingdom, France, or any other Independent State. The only effect one Independent State can have upon another Independent State is through the obligation and terms of a bi-lateral Treaty. This principle is embodied in Article 27 of the Vienna Convention on the Law of Treaties, that states a "...party may not invoke the provisions of its internal law as justification for its failure to perform a treaty."
The Hawaiian Kingdom presently has treaties with the United States of America concerning trade, commerce and consular relations and the United States cannot justify the failure to perform these treaties by invoking its internal laws. Examples of United States' internal laws purporting to affect Hawai'i include the 1898 Joint Resolution of annexation, 1900 Act creating a Government for the Territory of Hawai'i, 1921 Act establishing the Hawaiian Homes Commission, 1959 Act establishing Hawai'i as a State of the Union, and finally the 1993 Joint Resolution Apologizing for the Illegal Overthrow of the Hawaiian Kingdom.
Attached to the Award, the Arbitral Tribunal provided a copy of the complete Message of U.S. President Grover Cleveland on December 18, 1893, and the 1993 Joint Resolution Apologizing for the illegal overthrow of the Hawaiian Kingdom. President Cleveland's Message is the conclusion of an international fact-finding investigation done in 1893, and the 1993 Apology law is an internal piece of legislation by the U.S. Congress. U.S. President Cleveland's Message is a true apology to the Hawaiian Kingdom and implicates the United States for violating international law and the sovereignty of the Hawaiian Kingdom as an Independent State, while the 1993 Apology law cannot be regarded as an apology, but rather an internal piece of legislation justifying the United States' non-compliance to international law and the treaties entered with the Hawaiian Kingdom.
"Thus, whether a law-abiding attitude of the occupying power makes it possible for the legal order of the occupied State to retain a certain amount of effectiveness in the occupied territory, or whether, in disregard of the Hague Conventions the occupant eliminates even the last traces of that effectiveness, the continuity of the occupied State is safeguarded, not by an act of will of the occupying power, but by a clear, objective rule of international law." Professor Marek, Identity and Continuity of States in Public International Law.
Regarding the particular dispute between the Acting Government of the Hawaiian Kingdom and Mr. Larsen, the Arbitral Tribunal had determined "...that there is no dispute between the parties capable of submission to arbitration, and that in any event, the Tribunal is precluded from the consideration of the issues raised by the parties by reason of the fact that the United States of America is not a party to the proceedings and has not consented to them."
The issue of whether or not Mr. Larsen has redress against the Acting Government of the Hawaiian Kingdom, the Arbitral Tribunal had concluded that it does not fall within scope of arbitration because Mr. Larsen is not seeking damages from the Hawaiian government. On this note, the Arbitral Tribunal stated in paragraph 11.3 of the Award that "The first such principle is derived from the fact that the function of international arbitral tribunals in contentious proceedings is to determine disputes between the parties, not to make abstract rulings." Throughout the pleadings and in oral arguments before the Tribunal, both the Hawaiian government and Mr. Larsen's attorney admitted they are not adversarial to each other, but rather are seeking a better understanding of the relationship between a national and his government within the framework of occupational law and the responsibility of the Hawaiian government.
On several occasions the arbitrators had stated that they were willing to reconstitute themselves into a Fact-finding Commission of Inquiry under the auspices of the Permanent Court of Arbitration, but the Parties at the time did not pursue that option. In paragraph 13.2 of the Award the Arbitral Tribunal again reiterated the option of Fact-finding by stating that, "The Tribunal notes that the interstate fact-finding commissions so far held under the auspices of the Permanent Court of Arbitration have not confined themselves to pure questions of fact but have gone on, expressly or by clear implication, to deal with issues of responsibility for those facts."
In paragraph 11.23 of the Award, the Arbitral Tribunal stated that it "...cannot rule on the lawfulness of the conduct of the respondent (Hawaiian Government) in the present case if the decision would entail or require, as a necessary foundation for the decision between the parties, an evaluation of the lawfulness of the conduct of the United States of America, or, indeed, the conduct of any other State which is not a party to the proceedings before the Tribunal." It did go on to state, though, in paragraph 11.24 that it "...is also possible that the principle does not apply where the finding involving an absent third party is merely a finding of fact, not entailing or requiring any legal assessment or qualification of that party's conduct or legal position. In the present case, however, the parties did not seek to rely on any possible exception to the principle..."
On March 23, 2001, the Parties had notified the International Bureau of the Permanent Court of Arbitration, by agreement, to formally request that the Arbitral Tribunal be reconstituted into a Fact-finding Commission of Inquiry under the auspices of the Permanent Court of Arbitration in order to proceed to the matter of responsibility and liability on the part of the Hawaiian Government to Mr. Larsen.
The prolonged occupation of the independent State of the Hawaiian Kingdom by the United States of America, is a continual and flagrant violation of the 1907 Hague Conventions IV and V relative to the Laws of War and the rights of Neutral States, respectively, and the Fourth Geneva Convention relative to the protection of Civilian Persons in Time of War. The Acting Government of the Hawaiian Kingdom also affirms the rights accorded to Hawaiian subjects under international law and related international conventions. Enclosed herewith is the Arbitral Award of February 5, 2001; the letter of March 3, 2000, offering the United States of America an opportunity to join in the arbitral proceedings; and finally the letter of the Parties to the arbitration requesting the Tribunal to be reconstituted into Fact-finding Commission of Inquiry of March 23, 2001.
I should be grateful if you would have this letter and the attachments circulated as a document of the Security Council. A copy of this letter and attachments will also be deposited with the Secretary General of the Permanent Court of Arbitration.
With Sentiments of the Highest Regard,
David Keanu Sai,
Chairman of the Council of Regency,
Agent for the Hawaiian Kingdom
at the Permanent Court of Arbitration
|Synopsis History||"Lance Paul Larsen vs. the Hawaiian Kingdom"
Permanent Court of Arbitration, The Hague
|News Arbitral Log|