|Home Synopsis||"Lance Paul Larsen vs. the Hawaiian Kingdom"
Permanent Court of Arbitration, The Hague
|News Arbitral Log|
IN THE PERMANENT COURT OF ARBITRATION CASE NO 99001
The Hague, The Netherlands
Thursday, 7th December 2000
LANCE PAUL LARSEN Claimant
THE HAWAIIAN KINGDOM Respondent
MS NINIA PARKS, ESQ appeared on behalf of LANCE PAUL LARSEN
MR DAVID KEANU SAI appeared on behalf of the HAWAIIAN KINGDOM
Transcribed by Harry Counsell & Co
(Incorporating Cliffords Inn Conference Centre)
Telephone: 00 44 20 7242 9346
Facsimile: 00 44 20 7831 2526
THE PRESIDENT: Welcome. My name is James Crawford. I am sitting as a member of this Tribunal together with my colleagues, Mr Gavan Griffith and Professor Christopher Greenwood. The Tribunal is exercising jurisdiction pursuant to an agreement between the parties, Lance Paul Larsen, and the respondent, the Hawaiian Kingdom, an agreement which was amended on 25th January 2000. By a Procedural Order No. 3, dated 17th July 2000 the Tribunal indicated to the parties some preliminary issues which it wished to have dealt with before it could proceed to consider the merits of the dispute. In a further Procedural Order No. 4 of 5th September, the Tribunal reaffirmed and further specified the content of Procedural Order No. 3. Thus, the primary purpose of this hearing is to enable the parties to address those questions, though it is understood that in the course of doing so the parties may wish to provide general background in relation to the dispute between them and to the underlying factual questions as dealt with in the pleadings so far. By agreement between the parties, the Tribunal today will hear submissions on behalf of the claimant by Ms Parks and tomorrow will then hear the response of the respondent. On that basis, I will call on Ms Parks.
MS PARKS: Aloha, distinguished members of the Arbitral Tribunal. My name is Ninia Parks and it is my honour to stand here today representing Lance Paul Larsen. Unfortunately, he is not here with us in the court room today. He attempted to attend the hearings by travelling from the Hawaiian Kingdom to Amsterdam. We did arrive together on 5th December, a couple of days ago. Unfortunately, because he is travelling under an Hawaiian Kingdom passport and the Netherlands customs agents did not recognise his passport, he was turned around and sent back towards the Hawaiian Kingdom. He is currently in an hotel in San Francisco and it is my understanding that we will be able to communicate with him over the phone here today. I think that now would be a good time to let him introduce himself over the phone if that connection would be possible.
(Mr Larsen was telephoned on US 650 583 9600 in Room 672)
MS PARKS: Aloha Lance, I am here in the court Room with the Arbitral Tribunal. I would like to introduce you formally to them. Lance Larsen, we have the three distinguished members of the Arbitral Tribunal in front of us. I have explained your situation in terms of being denied access because you are upholding your nationality as a Hawaiian subject.
MR LARSEN: That is correct.
MS PARKS: If there is anything that you would like to say to the Tribunal at this time, I encourage you to make a statement, otherwise I can proceed with the merits of your argument.
MR LARSEN: Excuse me, could you repeat the last portion of what you just said, please?
MS PARKS: I am encouraging you at this point to make a brief statement about your case, your relationship with the Hawaiian Kingdom and your attempts to assert your nationality and you are seeking protection from your Government. If there is anything else that you would like to add at this point before I run through the legal jurisdictional arguments that we have discussed already, now would be the time to make any statements.
MR LARSEN: I would put on record that basically I could reiterate the fact that I did petition the Council of Regency. I have filed three grievances for the Council of Regency to step in and defend my rights which are being violated. I know that it is inconvenient to work like this, but I guess that this is the current situation and I am very exhausted. Could you just ask me what you would like me to say so that I could get to the point rather than just going on?
MS PARKS: We will be focusing on the jurisdictional issues today rather than the merits of the dispute, so it is unnecessary for you to say anything specifically, but I feel that it is important that you at least have a voice here since this is your case and have an opportunity to say "oloha" to the judges that are going to help us understand your situation and what your rights are. Otherwise we can proceed.
MR LARSEN: I am having a hard time hearing you. I am sorry, but the connection is bad. I would like to thank the Arbitral Tribunal for hearing this case about my civil rights being violated under Hawaiian Kingdom law and the Treaties of Friendship, Commerce and Navigation between our country, the Hawaiian Kingdom, and the United States. If you could clarify.
MS PARKS: Lance, would you like to listen in to the hearings as we proceed? Shall I just leave the phone here at the desk and allow you to listen to the proceedings.
MR LARSEN: Right now I can hear what you say. I will listen in and if you need me, shout.
MS PARKS: During the meeting that the Council had with the judges this morning, they were able to clarify for both of the parties that we will be focusing upon the jurisdictional issues raised by the judges in Procedural Orders Nos 3 and 4, specifically two jurisdictional issues were raised by the arbitrators. The first one was regarding the UNCITRAL Rules versus the Optional Rules as administering this case. The parties have very clearly set forth their views on those rules. Both of the parties agree that the Optional Rules are the applicable rules and we did amend those rules to the UNCITRAL Rules at the request of the Permanent Court of Arbitration International Bureau. Both parties have agreed that we are willing to reamend our pleadings to go back to the Optional Rules if the arbitrators think that that is more appropriate. Whatever decision the arbitrators feel is most appropriate in terms of the rules, I think that both of the parties - and here I am speaking for the claimant - are willing to go along with that decision.
MR LARSEN: That is correct.
MS PARKS: I will not spend any more time discussing the rules issue at this point since it seems to be very clear.
MR LARSEN: OK. I will be here listening in. I wish I could have been there, but I am over here in San Francisco and we will try to do our best to resolve this issue.
MS PARKS: Moving on to the second jurisdictional issue ...
THE PRESIDENT: Perhaps you could say to Mr Larsen that we have now moved to the stage where you are making the submissions on your behalf, so he is welcome to listen, but I think that the comments should be confined to you.
MS PARKS: Professor Crawford has just informed me that from here on I will be speaking as to the jurisdictional issues and, unless you have a point that you need clarified (and feel free to interrupt me) we will leave most of the verbal speaking to myself at this point.
MR LARSEN: That is fine. I agree with that.
MS PARKS: If you have any clarification that you would like to make, please feel free to interrupt me.
MR LARSEN: I will try not to interrupt you.
MS PARKS: I am going to spend the majority of today's hearings discussing the second jurisdictional issue that the judges have raised in their procedural orders. Primarily, there is a concern that the case cannot proceed without the United States present. They have provided myself with a copy of a relevant case, the case concerning East Timor and after providing a small amount of background information on the situation I will be distinguishing this case from that case and explaining why the Arbitral Tribunal does have the power to proceed in this case without the United States as a party. Before I provide the brief historical background information, I will give a cursory summary of what the real dispute is between the parties and how the United States is not required for this case to proceed. Lance Larsen filed this case as a subject of the Hawaiian Kingdom taking it for granted that his rights as a Hawaiian national are intact and that his country, while occupied, the sovereignty remains intact. At all times during the pleadings he has been operating assuming that as a matter of fact and law he is a Hawaiian national. The respondent in this case, the acting government of the Hawaiian Kingdom, has also at all times maintained as a matter of fact that the Hawaiian Kingdom is a sovereign nation, albeit an occupied sovereign nation. The status of the Hawaiian Kingdom as a sovereign nation has never been a dispute between the parties. It has been presented as historical fact to provide the Arbitral Tribunal and other interested people reading the case with the reasoning behind their assumptions and their factual assertions that they are operating in the context of the sovereign Hawaiian Kingdom. The United States has also agreed and in several legal documents acknowledged that it is an occupying force. While for political reasons it has not acted upon this fact of occupation, legally it has acknowledged this occupation. To restate the status of the Hawaiian Kingdom as a sovereign nation and the fact of the occupation of the Hawaiian Kingdom has never been in dispute between the parties. That is not an issue that the parties disagree upon.
THE PRESIDENT: Ms Parks, you say that the United States has acknowledged this. Can you take us to the documents where it has done so?
MS PARKS: Yes, I can. In the memorial that was filed by the claimant, Lance Paul Larsen, on 22nd May 2000 we have three specific documents issued by the United States Government that in sum acknowledge the occupation of the Hawaiian Islands. The first document is referred to in paragraph 34 of the memorial which I will briefly read. I am reading paragraph 34, which refers to annex 24. "This document in 1893 was written by President Grover Cleveland in which he recognises the illegality of the occupation of the Republic of Hawai'i and the United States of America coming into Hawai'i in 1893." If you look at page 452, I will begin reading what he has written. This is a message that the President of the United States did read to Congress, so this was being read by President Grover Cleveland to the United States Congress. President Cleveland is referring to the first attempt of the United States to annex the Hawaiian Islands and in this brief passage that I will read, as the Acting Commander in Chief of the United States military and the President of that nation, he acknowledges on the record that the first attempt to annex the Hawaiian Islands was unsuccessful. "Thus it appears that Hawai'i was taken possession of by the United States forces without the consent or wish of the Government of the Islands or of anybody else so far as shown except the United States Minister. "Therefore, the military occupation of Honolulu by the United States on the day mentioned was wholly without justification either as an occupation by consent or as an occupation necessitated by dangers threatening American life and property. It must be accounted for in some other way and on some other grounds and its real motive and purpose are neither obscure nor far to seek." Continuing on page 455, "The lawful government of Hawai'i was overthrown without the drawing of a sword or the firing of a shot by a process every step of which, it may safely be asserted, is directly traceable to and dependent for its success upon the agency of the United States acting for its diplomatic and naval representatives. "But for the landing of the United States forces upon false pretexts respecting the danger to life and property, the Committee would never have exposed themselves to the pains and penalties of treason by undertaking the subversion of the Queen's Government. "But for the presence of the United States forces in the immediate vicinity and in position to afford all needed protection and support, the Committee would not have proclaimed the provisional government from the steps of the government building. And finally, but for the lawless occupation of Honolulu under false pretexts by the United States forces, and but for Minister Stevens' recognition of the provisional government when the United States forces were its sole support and constituted its only military strength the Queen and her Government would never have yielded to the provisional government, even for a time and for the sole purpose of submitting the case to the enlightened justice of the United States." Halfway down the page, President Cleveland continues, "By an act of war committed with the participation of diplomatic representatives of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown. A substantial wrong has thus been done which a due regard for a national character as well as the rights of the injured people requires we should endeavour to repair. The provisional government has not assumed a republican or other constitutional form but has remained a near executive council or oligarchy set up without the assent of the people. It has not sought to find a permanent basis of popular support and has given no evidence of an intention to do so. Indeed, the representatives of that Government assert that the people of Hawai'i are unfit for popular government and frankly avow that they can best be ruled by arbitrary or despotic power." In sum, if you have a chance to read the entire document that was submitted by President Grover Cleveland, he acknowledges as the President of the United States to the Congress of the United States, that the attempted annexation of Hawai'i in 1893 was invalid and illegal. As I quoted, he called it "an occupation under a lawless occupation under false pretences".
MR GRIFFITH: This document is taken from where? Is it from the US Senate record?
MS PARKS: Yes, it is.
MR GRIFFITH: At some stage, if it is not already in the documentation, perhaps you would be kind enough to give us the citation?
MS PARKS: Of course. The next document in which the United States acknowledges that it does not have sovereignty of the Hawaiian Islands is Annex No. 29. We are jumping a whole century ahead. This is 1988 and in the interim the United States has attempted on a second occasion to annex the Hawaiian Islands. Namely, in 1898 the United States Congress passed a joint resolution to acquire the Hawaiian Islands. The joint resolution is included in the Notice of Arbitration. It is common knowledge in American law that a joint resolution requires 50 per cent of Congress and is not sufficient to substitute for a treaty which requires two thirds vote of American Congress. This document acknowledges that fact. On page 321, the first indented paragraph reads, "The constitutionality of the annexation of Hawai'i by a simple legislative act was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was not denied but it was denied that this might be done by a simple legislative act. Only by means of treaties, it was asserted, can the relations between states be governed, for a legislative act is necessarily without extra territorial force, confined in its operation to the territory of the state by whose legislator it is enacted. In this document the United States Department of Justice" - which on the first page acknowledges that this comes from the United States Department of Justice - "acknowledges that a joint resolution alone is insufficient to acquire another nation."
THE PRESIDENT: That is not quite right. The passage that you read was actually a quotation from Willoughby's Constitutional Law of the United States.
MS PARKS: That is right.
THE PRESIDENT: Which is quoted in the opinion which is at this annex.
MS PARKS: If we move to page 322, the Department of Justice is commenting on this. It says in the first paragraph: "We believe that the only clear Congressional power to acquire territory derives from the constitutional power of Congress to admit new states into the union. The admissibility of Texas is an example of the exercise of this power." If you read further, it shows that the Texan people were given a right to vote as to whether they wanted to become a part of the union. Other exhibits in the memorial show that both the sovereign of the Hawaiian Kingdom, Queen Lili'uokalani, and many of her subjects through the petition against annexation were not only deprived of a right to vote and acquiesce into becoming a part of the United States, in fact, they adamantly protested on the record and sent those protests to the United States State Department saying that they did not want to become part of the United States. If you refer to annex 21, this is the first of two protest letters that Queen Lili'uokalani filed with the United States State Department on behalf of her Government, the Hawaiian Kingdom, the People's Government. I will briefly quote: "I, Lili'uokalani, by the grace of God and under the constitution of the Hawaiian Kingdom Queen, do hereby solemnly protest against any and all acts done against myself and the constitutional government of the Hawaiian Kingdom by certain persons claiming to have established a provisional government of and for this Kingdom."
THE PRESIDENT: That was in 1893?
MS PARKS: It was before Cleveland's message to the Congress and, in fact, prompted his message to Congress.
THE PRESIDENT: But at the time of the joint resolution in 1898, what was the position?
MS PARKS: If we move on to annex 26, Queen Lili'uokalani again submits a protest to the United States States Department protesting against the second proposed Treaty of Annexation. As a result of her second protest, the second Treaty of Annexation was defeated in the Senate. That is what prompted the Congress to slip the joint resolution into another bill as a rider, because they were unable to gather the two thirds vote necessary to pass a Treaty. On two occasions it came before the United States Congress, in 1893 and in 1897, and on two occasions protests from the Queen were filed and the two thirds vote was unable to be procured. In addition, annex 27 is just a few pages of the petition against annexation. The Hawaiian Kingdom did submit the entire petition against annexation in their documents. If you read in the second column in English, it says: "We, the undersigned native Hawaiians, women, citizens and residents, who are members of the Women's Hawaiian Patriotic League of the Hawaiian Islands and other women who are in sympathy with the said League, earnestly protest against the annexation of the said Hawaiian Islands to the said United States of America in any form or shape." This document was signed by - it has been estimated - 90 per cent of the Hawaiian population at that time and was delivered to the State Department of the United States. I will defer to the Hawaiian Kingdom's submissions for further explanation of this document as they have the complete protests and also additional protest letters which were sent specifically from the different patriotic league that existed at that time in the Hawaiian Kingdom protesting against the annexation. The next document, annex 28, is a memorial that was submitted accompanying the signature petition that explains in fine detail that the memorialists are residents of the Hawaiian Islands, most of which are Aboriginal. They are possessing the qualifications to be voters under the constitution of the Hawaiian Kingdom and that they do not recognise the Republic of Hawai'i, that they do not recognise the United States of America and that they maintain fervently their protest against the consummation of this invasion of their political rights and earnestly appeal to the President, the Congress and the people to refrain from further participating in this wrong. That document, along with Queen Lili'uokalani's second protest letter, made it impossible for the United States Senates to get two thirds vote in order to pass a treaty. In 1898 they did pass a joint resolution which is 50 per cent of Congress. It is the claimant's position that this first document of 1988 coming out of the Office of Legal Counsel in its entirety validates that the Department of Justice acknowledges that you can only annex another nation by treaty, which is two thirds, or by having a vote as happened with Texas of the people. There is one more document to which I will refer you, which is the next exhibit, annex 30. This is another opinion coming out of the Department of Justice in 1996. In this opinion it states that it is unclear which constitutional power Congress exercised when it acquired Hawai'i by joint resolution. Again, we have the Department of Justice acknowledging that they cannot cite any constitutional authority for the annexation of the Hawaiian Islands. They go on to quote another constitutional scholar, as was similarly quoted in the first article, "The constitutionality of the annexation of Hawai'i by simple legislative act was strenuously contested at the time". In fact, they are making the same citation that was made in the first document.
THE PRESIDENT: The propositions that you have been talking about are essentially propositions of United States constitutional law - are they not?
MS PARKS: Yes.
THE PRESIDENT: What you are saying is that respected authorities doubt the constitutionality under the United States constitution of the acquisition of territory other than by treaty.
MS PARKS: Correct.
THE PRESIDENT: Is that the position under international law?
MS PARKS: Yes. Under the laws of occupation, it acknowledges that absent a valid transfer of sovereignty, which we are saying under constitutional law we can find no valid transfer of sovereignty, that the status of the United States is that of an occupying force and that the sovereignty of the Hawaiian Kingdom is not diminished by the occupation.
THE PRESIDENT: International law does not have the same rules of validity as constitutional law: for example, in the context of treaties. The relevant provision of the Vienna Convention on the Law of Treaties draws a distinction between the constitutionality of a treaty and its validity in international law.
MS PARKS: Absolutely. Under the Vienna Convention legislative, municipal and other internal actions taken by a government do not affect treaty obligations that that government holds.
THE PRESIDENT: The same thing might be true for annexation. It might be the case that under international law an annexation is valid even though there has been some constitutional defect.
MS PARKS: If we move further forward in the annexes, there are five treaties that the United States of America signed with the Hawaiian Kingdom through the various monarchs.
THE PRESIDENT: Yes, but that is not the point. Those treaties are pre-annexation. If the annexation was effective under international law, then those treaties would lapse because one of the parties would have disappeared.
MS PARKS: It is the claimant's position and has been from the beginning that there was no effective annexation, that because a joint resolution was passed and a treaty was not passed, the United States failed to make any proper annexation. It is neither a de facto government nor a de jure government. It continues to be in illegal occupation.
THE PRESIDENT: In any event, of course, we are starting to get into the merits. Although there is some licence for the purposes of these hearings to give us some of the background, I think that, perhaps, we should get back to the jurisdictional question.
PROF GREENWOOD: Might I ask a question that goes to jurisdiction, but is directly connected with what you are saying? Can you show us any document in the space of the last 20 or 30 years in which the United States cast doubt on whether Hawai'i is currently part of the United States as opposed to whether it was properly annexed in the 19th century?
MS PARKS: If we move to the Apology Bill, which was signed by President Clinton in 1993 (Annex 31), the President does acknowledge that the people of Hawai'i have never relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through plebiscite or referendum. I am reading this off 107, statute 1512. It is the fourth page.
THE PRESIDENT: What is the section you are reading?
MS PARKS: It is one of the "whereas's". About two thirds down the page and it has a star by it, "Whereas the indigenous people never directly relinquished their claims to the inherent sovereignty as a people or over their national lands to the United States either through their monarchy or through a plebiscite or referendum." Above that it says "Whereas the Newlands resolution affected the transaction between the Republic of Hawai'i and the United States Government". They are acknowledging that the United States signed some type of treaty with the Republic of Hawai'i, because, in fact, the joint resolution did talk about annexing the Republic of Hawai'i, but we have never found any lawful status under the Republic of Hawai'i. The Republic of Hawai'i had no lawful status to begin with. In this Bill it is acknowledged that there was never a transfer from the Hawaiian Kingdom to the United States. President Clinton is citing a transfer from the Republic of Hawai'i to the United States.
THE PRESIDENT: The preamble that you read refers to the indigenous Hawaiian people.
MS PARKS: Which is actually a misrepresentation, because "indigenous" would refer to groups of people that have not formed constitutional governments. There is some confusion in this Bill. Because the Hawaiians established a constitutional form of government, it is my understanding under international law that they would not currently be classified as indigenous and I would defer to the Hawaiian Kingdom's pleadings on that matter. They did address that quite specifically, I think, in their counter-memorial the distinction between "indigenous people" and "people who have established a constitutional form of government".
THE PRESIDENT: The law that you have cited, 107 Statutes 1512, goes on to say in the recital second following the one that you have read, "Whereas on August 21, 1959 Hawai'i became the Fiftieth State of the United States". So, clearly, it was the view of Congress enacting this law that, notwithstanding the deficiencies of the 1890s, Hawai'i had, in fact, been incorporated within and subsequently became a state of the United States.
MS PARKS: I have two comments. First, I would refer to Merrick Treatise on the laws of occupation which I did cite in my reply in which she says that it is common for occupying forces to refuse to outright acknowledge that they are, in fact, occupying, that they would prefer to put it out to the public that they have properly annexed the country that they are occupying. I can pull out that citation if that is beneficial, but it is the claimant's position that the United States has legally acknowledged that it has not properly acquired the sovereignty of the Hawaiian Kingdom but for political reasons has not acted upon that. To try to bring us back to what we are addressing, which is the jurisdictional issue, I think that both parties agree on this point that there has never been a lawful acquisition of the Hawaiian Islands by the United States of America and, since that is not a dispute between the two parties, in our opinion it is unnecessary for the judges to make a ruling as to whether that is, in fact, true or not. We are simply trying to understand the relationship between a national and a government during occupation and we take it for granted the occupation as a matter of fact and law.
THE PRESIDENT: That really gets to the nub of the point, does it not?
MS PARKS: Yes.
THE PRESIDENT: This is a tribunal sitting under the auspices of the Permanent Court of Arbitration, though exercising jurisdiction pursuant to the UNCITRAL Rules and to the agreement between the parties. Nonetheless, the law that we are directed to apply is international law.
MS PARKS: The laws of occupation.
THE PRESIDENT: Well, the laws of occupation are part of international law.
MS PARKS: Right.
THE PRESIDENT: The problem, as put in the procedural orders, is that there is or appears to be a rule of international law that the Tribunal cannot exercise jurisdiction even on the basis of an agreement between the two parties, if that agreement affects the rights of a third party and a decision on the rights of a third party is a necessary preliminary to what the Tribunal is asked to decide. That is the difficulty we face. Obviously, we have not made up our mind about this, I want to stress that, but the point of the hearing is to address that point.
MS PARKS: My response to that would be that the United States has no rights in this situation because of the fact that they are an occupying force. Both of the parties have the position that as a matter of fact and law America is illegally occupying the Hawaiian Kingdom. As an illegal occupier, it has no rights other than those treaty rights with the Hawaiian Kingdom. The sovereignty of the Hawaiian Kingdom remains intact and the two legal orders co-exist. The United States does have obligations towards the Hawaiian Kingdom as administering an occupied territory, but we would not agree that the United States has any rights to be affected at all because we are taking it as a matter of fact and law that they are an occupying force.
THE PRESIDENT: The problem is that an arbitral Tribunal is not simply a delegate of the parties. Obviously, the parties can reach whatever agreement between them they may wish to reach. That would have whatever effect it has in a court under the applicable law. The arbitral tribunal is in a sense a third party, which is called upon to act under a particular system of law and which agrees to act, as the Permanent Court agreed to act, on that footing. If that system of law contains a stipulation that whatever the parties say, certain decisions cannot be made if they affect the rights of third parties, the problem is how are we to avoid that? There might be various ways in which we could do that. One is to say that there is no such rule except, for example, in the context of the International Court. That there is such a rule in the context of the International Court the court has three times decided, most recently in the East Timor case. You might say that that rule only applies to International Court proceedings and does not apply to proceedings which are in some sense mixed proceedings or which involve private parties or at least one private party. If, however, the rule does apply to international arbitration more generally - that is to say it is not just limited to International Court proceedings - then you would have to try to say that this case is different from the East Timor case in some respect.
MS PARKS: I would argue that it is different. Specifically, if you look at the two parties in the East Timor case, they disagreed as to the territorial, who had proper territorial dominion over East Timor. Australia recognised the de facto government of Indonesia, whereas Portugal did not. That is substantially different from the case here where both parties agree that the Hawaiian Kingdom maintains sovereignty as that the United States does not have sovereignty of the Hawaiian Islands and does, in fact, occupy. In the East Timor case there was a dispute as to who had the proper jurisdiction over the territory in question, whereas in this case there is no dispute over who has the proper jurisdiction over the territory in question. I think that a distinction can be made because of the fact that Lance Larsen and the Hawaiian Kingdom agree upon the legal status of the Hawaiian Kingdom.
THE PRESIDENT: There have been cases in which the International Court has taken jurisdictional objections or considered jurisdictional objections even though they were not raised by the parties. There are also, of course, a number of cases in international arbitration where that has happened. Let us assume that the position under international law is that the International Court and any other international arbitral tribunal has no jurisdiction over a dispute which affects the rights of a third party in the East Timor sense, if I can use shorthand. If that is right, it would follow that the original parties could not remedy that defect because it is not their consent which is lacking. Obviously, if the parties here had not consented, then the Tribunal would not even have initial jurisdiction. But the East Timor case says that even though there is jurisdiction between the parties, whether by special agreement or by reason of their acceptance of some treaty, such as the Optional Clause arrangements in the International Court, notwithstanding that agreement, nonetheless, if the rights of a third party are involved in the relevant sense and that third party does not consent and is not present, the Tribunal lacks jurisdiction. If that is right, then it is the consent of the third party that is missing, not the consent of the parties before the Tribunal. I am simply trying to explain the problem that we have. It is not the position of the tribunal at this stage. It is simply that we cannot in conscience proceed as an international tribunal without raising this issue and without resolving it.
MS PARKS: Absolutely. I would reiterate that we are not asking the Tribunal to rule on the lawfulness of the United States conduct. We are not asking the Tribunal to set forth whether or not the Hawaiian Kingdom is occupied. We have never asked those questions of the Tribunal. What we are trying to clarify is the relationship between a national and his government. If it is possible for the Tribunal to rule on the relationship between a national and his government without acknowledging or disacknowledging the occupation, then we can move forward. That is what we would prefer to do, to have the Tribunal explain to the claimant, Mr Larsen, what are the parameters of his relationship with his government and what the responsibilities of his government with respect to the claimant are. Again, we are not expecting the arbitral tribunal to make any ruling which would affect the United States because we know that you do not have the power to do that. Again, we are taking it as a legal fact that the sovereignty of the Hawaiian Kingdom remains intact. If it is impossible for the Tribunal to take that as a legal fact, then perhaps fact finding or some other proceeding would be more appropriate.
THE PRESIDENT: We will come back to the question of fact finding, perhaps, later on, but let us look for the moment at the jurisdictional question. The problem is that not only is there the difficulty represented by the position of the third party, but there is also the difficulty represented by the idea that, if the Tribunal were to proceed on a certain assumption, its decision would be hypothetical. If I can give you an example, in the Northern Cameroons case in the International Court in 1963 the International Court was asked to rule on the legality of the administration by Britain of the Northern Cameroons Trust territory before its decolonisation. What happened was that there was a plebiscite in the Northern Cameroons and it opted to join Nigeria. Cameroon argued that, because of the way in which it had been administered, that plebiscite had been affected and the administration of the Northern Cameroons having been unlawful was a matter in dispute between it and the United Kingdom. The court said that there may be such a dispute, but after decolonisation, after Northern Cameroons has become part of Nigeria, the question of the legality of what went before no longer arises as an actual legal question, because nothing turns on it. It is not that it was not a legal question at the time. It is not that it was not a question on which you could have different views, as clearly there were serious legal questions about what happened in the 1890s in relation to Hawai'i. What the court said in Northern Cameroons was that, if there is no connection between those legal disputes and an actual question that arises now between two parties, then the court cannot decide, because it is not the function of an international tribunal to make abstract rulings. Its function is to make decisions on issues which affect the legal rights of the parties at the time the decision is made. On the one hand, you have the problem of the rights of the third party. If you try to avoid that problem by stipulating that the third party has no right or that the underlying situation is unlawful and is such to be incapable of giving rights to the third party, then you have an abstract decision. The question is whether there is any room between those two propositions which are propositions of international law by which this Tribunal can act.
MS PARKS: I can respect all of the concerns that the arbitral Tribunal is raising and would restate that Mr Larsen decided to proceed with this case because in his pleadings and in his mind there is no dispute as to the legal status of his nationality. He did not ask the Tribunal to validate his nationality because he takes it as a matter of fact and law (and lives it) that his nationality remains. We can respect the fact that the arbitral Tribunal may feel, if it on any level acknowledges the nationality of the claimant, that somehow it may be acknowledging that the United States is occupying the Hawaiian Kingdom. That is a very real concern on a political and a legal level, but the claimant has had such confidence in his nationality that he did not let the possibility of an occupation ... Let me rephrase that. The occupation is such a matter of fact in his mind that it is unnecessary in his opinion for the Tribunal to validate the occupation or not, because it stands as a matter of fact and law and has been acknowledged by the United States in these different documents. For political reasons the United States has not done anything about it. Merrick speaks about that in her treatise as to why occupying nations do not usually acknowledge their status as an occupant. Again, Lance does not expect the Tribunal to make any ruling that it does not have jurisdiction to make, but he simply has every confidence in his position and I think the fact that the Hawaiian Kingdom also has every confidence in their position has allowed us to move forward, because the occupation is a matter of fact and law in both of the pleadings of both of the parties. I can respect the points that you are raising in terms of, if you address the relationship between Lance as a Hawaiian national and the Council of Regency as the acting government of the Hawaiian Kingdom, that somehow you have inherently acknowledged the occupation of the Hawaiian Kingdom by the United States and that is a very real concern that you have. Perhaps, if that is insurmountable, we should switch the discussion to fact finding rather than arbitration, because that is the context under which Lance filed this case, not expecting the Tribunal to say, "Yes, the Hawaiian Kingdom is occupied" or "No, it is not". In his opinion it is a matter of fact and law that stands on its own and needs no validation from an international tribunal because the facts speak for themselves. But, because of the political reality that the United States has avoided acknowledging this publicly and has only published this in legal counsel opinions and is kind of putting pieces of the puzzle together in their different documents acknowledging the occupation, they have never come out and said, "Yes, we are an occupying force", we can respect that the Tribunal has concerns that acknowledging the nationality of my client and the status of the Council of Regency may appear to be making a ruling on that decision. Again, Lance filed this knowing in his mind that that is a matter of fact and not an issue of dispute between the parties.
PROF GREENWOOD: Ms Parks, I can see all that and, in particular, I can see the point about the nationality of your client, but, in effect, you are asking us to proceed on the basis of an assumption that the United States presence in Hawai'i is illegal and that your complaint against the Kingdom stems from that fact. If the United States presence in Hawai'i is not illegal, if Hawai'i is part of the United States, then, surely, your claim falls away, does it not?
MS PARKS: Again, the claimant filed this case under the conviction that it is an established legal fact that the occupation does exist. Again, we can respect your concerns not wanting to acknowledge that fact on the side or in consequence of your acknowledging the nationality of my client, but, again, his conviction in who he is is strong enough that he was willing to proceed with this case and deal with these issues here and possibly consider what other avenues may be possible for this to proceed.
THE PRESIDENT: One of the functions of international tribunals - in fact, the function of international tribunals - is to decide disputes on the basis of law. There are two aspects to that. There has to be a dispute between the parties. That means in the light of the Northern Cameroons case not a disagreement in some abstract sense, such as about the decline and fall of the Roman Empire. We could have a disagreement about it, but it could not be as such a legal disagreement because it could not affect the way in which we are to behave. The only question that an international tribunal can decide is a question which goes to how the parties are to behave, otherwise there is no dispute. In the Northern Cameroons case, because there could not be any link between the question of the legality of the administration of the territory and the parties as they were before the court, there was no dispute. Let us analyse a bit what the dispute is between the parties to this case. How would you describe that dispute?
MS PARKS: I would describe the dispute as differences in opinion as to the extent of the responsibility of the Council of Regency in protecting my client, Lance Larsen. The Council of Regency is of the view that the steps that it has taken to preserve the status of Hawaiian nationals are sufficient and exhaustive of its responsibility to my client. My client, on the other hand, would argue that as long as his rights continue to be violated, the Council of Regency with all due respect has not fulfilled its job. As a neutral nation, the Government of the Hawaiian Kingdom has a responsibility to protect the nationality of its subjects. As long as the nationality of my client is being denied, the Council of Regency has not fulfilled its job. He is not disagreeing that they have taken extensive measures and perhaps done their best, but the price of international responsibility is liability. The fact that they have taken on the responsibility of resurrecting a sovereign nation means that they have assumed the responsibility of protecting the nationals of that nation. The question would be more the extent of liability and whether the different actions that they have taken constitute effective steps in terms of their responsibility towards Hawaiian nationals.
THE PRESIDENT: In that remark you used the phrase "as long as his rights continue to be violated" - I think a literal quotation. You are not saying that his rights are in the first instance violated by the respondent?
MS PARKS: They are violating his rights by not protecting his nationality.
THE PRESIDENT: Well, there were two different formulations. You said, "as long as his rights continue to be violated" and "as long as his nationality is being denied". Let us proceed on the basis of the first and we will come to the second to see if it is any different. In effect, the complaint about the respondent, that they are not preventing his rights being violated, is parasitic - I am sorry, I do not want to use the word "parasitic" in a pejorative sense. What I mean is dependent - is contingent upon the prior proposition that his rights are being denied by a third party. In other words, it is the failure of the respondent to protect him against the third party which is the problem.
MS PARKS: Yes.
THE PRESIDENT: But, in order for the Tribunal to make a non-hypothetical decision on that question, we would have to decide that his rights were being violated by a third party. You could, perhaps, stipulate that, but the problem that you face in the context of East Timor is that a stipulation cannot give an international tribunal jurisdiction if its decision would implicate the rights of a third party. It may be that an international tribunal could have jurisdiction as between the parties in respect of their own rights exclusively on the basis of the stipulation. That is a question. But, if the decision necessarily affects a third party, no stipulation can give it jurisdiction because it is not within the party's competence in the first place. I am trying to articulate the argument. I am not expressing a point of view.
MS PARKS: Of course.
MR GRIFFITH: When you say that Mr Larsen's rights are being violated, are you in substance saying that they will be violated until the respondent expels the occupying power?
MS PARKS: Absolutely.
MR GRIFFITH: In essence, you want a declaration that their obligation goes that far?
MS PARKS: Yes, that would be the claimant's position, that until his nationality is preserved completely, his government is not fulfilling its duty. In the Hawaiian Kingdom constitution and in the treaties that the Hawaiian Kingdom signed with the United States, it acknowledges its responsibility to protect the nationality of its subjects distinct from the nationality of other nations.
MR GRIFFITH: Do you also say that a declaration by us that that was the extent of the respondent's obligation in no way affects the United States as the occupying power.
MS PARKS: I would not say "in no way affects", but, again, I would refer to the fact that the claimant has filed this case assuming that the occupation is a matter of fact. He understands if the Tribunal has a problem acknowledging that that is a matter of fact, but it was his position, and has been from the beginning, that the existence and the lawfulness of his nationality is not a question, it is a fact of international law.
THE PRESIDENT: There is a problem with that. I can understand entirely how someone's allegiance, affection and sense of connection to a place or to a historical or cultural tradition is a fact. Other people simply have to accept that - it is there. You are who you are.
MS PARKS: Exactly.
THE PRESIDENT: But you are talking now about a proposition of international law. You are asking the Tribunal to decide under international law about concepts such as nationality, occupation and so on and they are not just subjective questions, they are not just questions of an individual person's attitude. It is accepted that the attitude is perfectly genuine and serious and valid from that point of view, but the problem is that the Tribunal cannot make decisions, as it were, inside a person's mind. The Tribunal makes decisions in relation to the legal system of which the Tribunal is part. The difficulty that we have is that these propositions are not just from the perspective of that legal system, these propositions are not just propositions of fact, they are propositions of mixed fact and law. They depend upon certain historical events and then on the application of the rules in force at the time - another concern of course - to those events. That is a legal process and you ask the Tribunal to perform it. The Tribunal can only perform it in accordance with the rules that that legal system lays down for the performing of those functions, which is why we are having this hearing.
MS PARKS: Of course. Again, I would refer to the fact that it was the claimant's position that the legal status of the Hawaiian Kingdom is such a blatant matter of fact and law, given the United States documents acknowledging the illegality of the method of annexation and given all of the historic documents that were submitted to the Tribunal, that it was his position that it was not an issue in dispute and - I may be taking some liberties when I say this - but given the Tribunal's expertise on occupations that, perhaps, it would be obvious on the face of the documents what the situation is. We can respect that there may be legal or political hurdles to this Tribunal being able to acknowledge the status of the Hawaiian Kingdom, but again it was the claimant's position and has been that that is a matter of international fact and international law, so, if there is some disagreement between the claimant and the arbitral Tribunal as to whether that can be taken as a matter of fact without affecting the rights of the third party, then I think that it would be appropriate to consider fact finding instead, because in no way will the claimant compromise his belief that those facts and laws are self-evident and, unquestionably, given the different United States documents acknowledging the history and given the blatant facts as submitted between 1893 and 1898, it has been our position that there is no possible way to see where a lawful annexation ever occurred and the United States has never been able to offer proof up to that. To many people the occupation is simply a matter of fact and law and is not a dispute and is not something that needs to be validated or decided by a tribunal. Of course, we can respect the fact that the arbitral tribunal may disagree with that view point, but, again, that is the view point under which this case was filed.
MR GRIFFITH: Ms Parks, you are not contending that the United States now accepts that it is an occupying power and that Hawai'i is not a state of the United States?
MS PARKS: It is our position that, given the four different documents that came out of the United States Department of Justice and from the Congress, that those documents taken together do acknowledge the occupation and, for political reasons that Merrick explains in her treatise, they have not acted to acknowledge on a real level the occupation, but that those documents taken together do validate the occupation as a matter of fact and international law. We have the United States acknowledging that only a treaty can annex another country, acknowledging that the joint resolution was signed with the Republic of Hawai'i, not the Hawaiian Kingdom, acknowledging that the native Hawaiians never acknowledged to any annexation, that those documents alone as domestic documents looked at in an international perspective provide a solid foundation under which he is putting forth that the occupation is a matter of fact and law. Without those United States documents, I think his argument would be much more strenuous and much harder for him to make in terms of America acknowledging on some level that it is an occupying force, but I think that those four documents taken together as a whole and viewed in conjunction with the two proposed treaties of annexation that are in the Hawaiian Kingdom exhibits and the joint resolution which is in the Hawaiian Kingdom exhibits. I would also call attention to the Congressional record which accompanied the joint resolution which is included in the Hawaiian Kingdom's reply - we may want to refer to this document because it does validate these other four documents to which I am referring - in which the Senators are saying, "Well, we are not going to get title. We have got to set up title companies", making offhanded remarks during the debate that led to the joint resolution acknowledging that this Act would not have the power to do what they were saying they were trying to do. You have the Senators who actually passed the joint resolution in 1898 acknowledging in debate before the Bill was passed that this would not be proper to annex the Hawaiian Kingdom.
MR GRIFFITH: Can we just test that? Were it the case that Hawai'i was not a state of the United States and were that authoritatively to be determined one way or another, could that fact of authority determination, for example, possibly affect even the election of the President of the United States?
MS PARKS: Absolutely. Many of us think that these different factual happenings are not unrelated.
MR GRIFFITH: But, when you say "yes" to that question, does that mean that our consideration of this issue does involve considerations that do concern the United States?
MS PARKS: Of course it does. We were, quite frankly, very pleased that we have even gotten this far, given the reception that we have had to these arguments back in Hawai'i when speaking with American judges sitting in both state and federal court. They are usually laughing in our faces. The respect that we have already received from this arbitral Tribunal and from the Permanent Court of Arbitration has been wonderful for us and we believe that we are arguing for a truth that no fact can cast any doubt on. Lance has been operating under the conviction since he realised who he was ten years ago and it is that conviction and that confidence that brings us here today, even though most people around us do not wish to recognise that fact.
THE PRESIDENT: The problem is that you cannot have it both ways, with respect. It is an observation, but you cannot say, on the one hand, that you hold certain things to be completely unchallengeable and, on the other hand, submit them to the jurisdiction of a tribunal which can only decide one way. It has to be open to an international tribunal to decide the case either way as between the parties on any available legal ground so far as that system is concerned. The decision might be one which actually subverted that belief. This is why these rules exist. It is not open to the parties, as it were, to stipulate a proposition affecting the rights of a third party on the basis of which an international tribunal will act. A tribunal has to have jurisdiction to go to the root of the matter - the underlying legal proposition - because otherwise its decision could have no authority. And jurisdiction is about authority. It is not just a purely technical question. It is about the authority to speak with the force of res judicata.
PROF GREENWOOD: You are being fired at from all sides, Ms Parks. Let me try to move things along a little bit by inviting you to explore the comparison with the East Timor case in more detail. As I understand it, in East Timor part of the argument advanced by Portugal was strikingly similar to what you have just said to the Tribunal. Portugal was saying, in effect, that you do not have to rule on whether Indonesia acted illegally in entering East Timor in 1975. You can take that for granted, because there are various documents - in this case emanating from the Security Council of the United Nations and the United Nations General Assembly - which make that matter self-evident. You can treat it as a given. Yet the court said "We simply cannot do that. We cannot proceed to determine whether Australia is acting legally in its dealings with Indonesia by taking for granted the illegality of the Indonesian annexation of East Timor". If we cannot take that for granted, then we cannot decide the case. I think that that is the problem that you have to get around. We would be very willing to receive submissions from you on any way in which you see East Timor as distinguishable, but it is not a problem which can simply be brushed aside. It is there, I am afraid, for the Tribunal, because it is a central part of the system of law that governs our operation.
MS PARKS: Again, I would distinguish the East Timor case from this case in that Portugal and Australia, which are the two parties to the East Timor case, had differing opinions as to the status of the Government of Indonesia. Australia recognised it as a de facto government, whereas Portugal was challenging that.
THE PRESIDENT: It recognised it as a de jure government, that was the problem and not just a de facto government. One of the grounds of distinction that you have already raised, and we have discussed this at some length, is the point about what I call stipulation; that is where the parties stipulate the proposition - agree upon it and stipulate it for the Tribunal - that avoids the Monetary Gold proposition, as we call it, because Monetary Gold was the first of this line of decisions about the rights of third parties. We have already examined that and the difficulty with it is that, if the objection goes to the jurisdiction of the Tribunal and affects the rights of the third party, then a stipulation cannot make a difference. The second ground that you gave, which was just being discussed with Professor Greenwood, is what Portugal in that case called "the given ground"; that is, you look at the legal instruments. You can take it as given that the proposition in question is true and Portugal referred to the Security Council and General Assembly resolutions and said that you can act on these. The court said, "No, we cannot, because we cannot draw conclusions from those resolutions in the absence of Indonesia, because to do so now would involve making legal determinations based upon them". That is the problem. You are really still asking us to draw legal conclusions from the documents that you have cited including the Act of Congress, as it were, the Apologetic Act. You are asking us to draw legal conclusions from them which are not accepted by the state concerned or at least which may not be accepted by the third state concerned and that still creates a problem. We will come back to that point in a moment. Just to complete the catalogue, a third basis for distinguishing Monetary Gold might be that the proposition in question had been authoritatively decided by someone. That is different, because Portugal did not really say that it had been authoritatively decided, because it could not. The General Assembly did not have the power to authoritatively decide. But let us assume that there had been a Security Council resolution under Chapter 7 of the United Nations Charter involving the status of East Timor, calling on states not to recognise and obliging them not to do so. It is very probable that the decision of the court would have been different in that case. In other words, the court would not refuse to apply an authoritative Security Council decision binding on the parties not to recognise, because that would have, as it were, disposed of the rights of the third party. You might be able to argue that there is present somewhere an authoritative decision to that effect, not just a document from which you can draw a conclusion, but a document that contains the conclusion. I suppose that the fourth ground on which you might distinguish the Monetary Gold line and the East Timor case - and you have also referred to that - is that, although it has not been authoritatively decided, it is so obvious that it is the case. It is blindingly obvious. You have used the word "blatant". I suppose that you might say, "Well, this only applies where there is some controversy and not where it is blatant". We have on that basis four different arguments and for the purposes of discussion it may be useful to distinguish. There is the stipulation argument. That is where the parties agree. There is the given argument. That is where you have documents from which it is safe to draw a particular conclusion. Portugal made that argument and it failed. There is the authoritative argument where a body with authority has decided the point and there is the blatancy argument. That is where the point is so clear, it is so obvious that it is safe even in the absence of a third party to draw the conclusion. Just for the purposes of our discussion of the point, I think that it would be useful to draw those distinctions, because we do not want to confuse one and the other. I think that it may be that some are valid and some are not.
MS PARKS: They are very valuable distinctions.
PROF GREENWOOD: Can I add a fifth point, which is in a rather different category from those four upon which we have also touched? We would, of course, be very willing to hear your submissions, if you wish to make any, to the effect that the East Timor principle is peculiar to the International Court of Justice and would not be applicable to another international tribunal. I am not suggesting that the answer to that question is either yes or no. I merely put it down as something, if you like, on the agenda which you may wish to address us on.
MS PARKS: I guess that I will begin by addressing the four distinctions that Professor Crawford has set forth. Under the stipulation argument, I think that it is clear that both parties would stipulate as to the nationality of my client, but I think that the problem of a hypothetical ruling makes the stipulation argument a weak one on which to rely in this case. As Professor Crawford has already mentioned, even if the stipulation is agreed upon, to make a hypothetical ruling on an agreed-upon stipulation does not really make any new grounds for anyone involved, so, while I think that both parties would agree that this stipulation exists, I would not base my case solely on that, because of the problem of the hypothetical ruling. The second ground, the "given ground", that, because there are documents that are so straightforward that it is safe to make a conclusion about the nationality of my client, I think is definitely applicable. Why we have included these American documents in our pleadings is so the Tribunal can see why my client is so confident of his nationality. To clarify, my client has received most of this information from the Council of Regency so that his education as to who he is is a part of the relationship that is the subject of this controversy, that these documents have been uncovered primarily by the Council of Regency and have been of great use to all Hawaiian nationals trying to understand who they are, given 100 years of confusion on the issue. We would argue that the documents that we have set forth, because they come twice from United States President, from the United States Congress and from the Department of Justice, that, taken as a whole, make it given that the occupation continues to exist, even if for political reasons the United States has refused to operate on that acknowledgement. On the third argument, authoritative, we have not yet had an international tribunal issue an authoritative ruling on this issue. Of course that is what we are here gaining your opinion to perhaps guide us in the right direction to find that type of ruling. If arbitration does not proceed on the merits perhaps that would be a more appropriate step for the parties to take, to approach either the ICJ or the Security Council and try to receive a ruling from them as an authoritative international body validating what it is that we are saying. So already we have gained a lot from your knowledge, the three of you, in that that is now an option that maybe we had not considered before that we now know is available to us. So thank you already for pointing that out to us. But unfortunately we do not have that yet to rely upon in this case.
THE PRESIDENT: That is very candid, Ms Parks. I did not want you to think that we were suggesting that you should approach either of those two bodies. I was talking in general terms about what the exceptions to the Monetary Gold principle might be.
MS PARKS: Unfortunately we do not qualify under that exception since we have not yet received that. No. 4, the blatant argument that it is so clear that it is safe to draw conclusions, is perhaps our strongest ground, and the grounds under which Lance has been operating for the last ten or so years that he has been attempting to assert his nationality. That is why he has been willing to go to prison and to be detained for his beliefs; it is so clear to him after learning the facts who he is; it is so blatant given the American documents that he has been able to read that he has no other conclusion to draw other than he is an Hawaiian national. He is not an American citizen and he must understand what that means specifically within the context of his relationship with his government, but more generally just for his own knowledge. So to summarise under 4, exceptions, we would not be relying on the first and the third grounds but instead would be relying on the second and the fourth grounds, specifically that because the documents are so straightforward it is a given and safe conclusion to make, and the blatant argument, which really seem to be two ways of saying the same thing, but if it gives us two grounds then we will take both of them.
THE PRESIDENT: It is an interesting question as to whether they are the same thing. In the East Timor case it was really pretty obvious that Indonesia's control over the territory resulted from the use of force, was it not?
MS PARKS: Yes.
THE PRESIDENT: So if there had been a blatancy exception you would have thought that this was a case in which it should have been applied, and yet it was not really applied.
MS PARKS: I think a distinction to be made though is that although I have not read through all the pleadings I do not think that documents coming from Indonesia itself acknowledging its status as an occupant were presented as evidence. I think that absent the documents we have presented from the United States Congress and the President acknowledging the illegality of the annexation that we would be in the same situation as the parties in the Indonesia case. Please correct me if I am wrong, but I did not see any evidence of any documents coming from the Indonesian Government itself acknowledging the questionability of its own status. I think those documents may perhaps help us to distinguish this case from that case.
THE PRESIDENT: That is correct, certainly at the time of the decision in East Timor there was no statement from Indonesia which bore any resemblance for example to the legislation of 1998, however that may be construed.
MS PARKS: Professor Griffith also mentioned a fifth exception in which the principles set forth in the East Timor case might apply only to the International Court of Justice and perhaps not to other international tribunals, and of course we would like to agree with that argument. It would probably be wise for me to take the lunch break to do a little bit more reading of these cases and follow up with a more substantial rebuttal, but just to give you an indication of our direction we will be agreeing with that exception and formulating an argument to back that up.
THE PRESIDENT: Thank you very much both for the candour and clarity of your arguments, we appreciate that. Can I suggest that we now adjourn until 3 o'clock to give you the opportunity to think about some of the questions we have been discussing and of course we appreciate entirely that we are discussing them with counsel for the claimant and it will be a matter for the respondent tomorrow to take its own position on these questions and these are adversarial proceedings by definition and you are not bound to take any position that the claimant make take on them. This afternoon in addition just to give you, Ms Parks, some idea of the concerns we have, there is a significant question for the tribunal as to whether it is empowered to accept the request which I understand both parties make, which is contained in paragraph 128 of the Respondent's Reply, which says that if the arbitral tribunal was to come to the conclusion that it had no jurisdiction or that the dispute was inadmissible on Monetary Gold grounds, on the grounds that it involves the rights of a third party, that alternatively the tribunal should reconstitute itself as a fact finding commission pursuant to the optional rules for fact finding. There are a number of questions associated with that and we would like you to address them this afternoon, and that will enable the respondent to address them tomorrow. One question is whether there is any implied limitation to the application of the Permanent Court of Arbitration optional rules for fact finding relating to the question whether the dispute has to be of an international character, or whether the parties to the dispute or at least one of them has to be a State and/or a state party to one or other of the Hague Conventions of 1899 or 1997. In other words is there a comparable jurisdictional problem unfortunately even for fact finding? It is an entirely open question what the position is. The second question is on the assumption that the limitations which apply to international arbitral tribunals which we have been discussing do not apply to fact finding commissions, what precisely in your view are the facts which it would be necessary to find? Clearly there is a distinction for the purposes of these rules between facts and law. Arbitral tribunals decide questions of law, commissions decide questions of fact - for example whether there was a Japanese submarine in the North Sea when the Russian fleet fired at the fishing trawlers in the Dogger Bank incident. That is a question of fact. What are the questions of fact in this case that are in dispute between the parties that you would want a commission of inquiry to decide, because they have to be disputed questions of fact. What are the disputed questions of fact that this commission would decide if it has jurisdiction. So there are two questions. One is are there any jurisdiction limitations to the application of the PCA optional rules for fact finding, and (2) if the answer is "no", or alternatively that they do not apply in this case, what are the facts in dispute between the parties which, as distinct from propositions of law, what are the propositions of fact which the Tribunal would decide. I ask exactly the same question to the respondent to address tomorrow. It may well be that at the end of the proceedings tomorrow the Tribunal will still have questions of this character; at which point we would propose to write them down so that you have them in exact language for consideration in the reply for us next week. On that basis we will adjourn till 3.
(Adjourned for two hours)
MS PARKS: First I would like to thank you for the discussion this morning. I found it very valuable and quite a challenging exercise for myself, so thank you. At the conclusion of this morning's session, the arbitral Tribunal clarified that they would like to hear more about the point that Professor Greenwood raised about the possibility of the Permanent Court of Arbitrating having an exception to the concerns that were raised in the context of the International Court of Justice in the case of East Timor. In addition, I was asked to discuss the question of fact finding, what are the questions to be found in terms of fact finding. I apologise that my prepared response is not going to follow that line of questioning exactly, but I will reach both of those questions in the duration of my response. I have prepared my response in five separate sections. I will give you a brief overview and then I will go through each. I want to go back and review the four exceptions that were laid out by Professor Crawford, the given exception, the blatant exception, the authoritative body and the stipulation exception and clarify myself on what I had said earlier about that.
THE PRESIDENT: Can I just intervene to make a point? First of all, because we are developing argument, you are not bound by any apparent concessions that you might have made in earlier discussions. We understand that you may need to take instructions and you may need to think more. You have been very open with us and the quid pro quo is that, if you develop your ideas further, that is fine. We will at the end of the proceeding give you the opportunity to put down in writing precisely what your submissions are and that will be the final word, as it were. The second point that I wanted to make was that I did not suggest that all of those four or, indeed, any of them were actual exceptions. I simply said that they were candidates.
MS PARKS: Of course.
THE PRESIDENT: The Tribunal will look at them in due course and consider whether in its opinion any or all of them are exceptions and whether any or all of them may apply here, but those are opening questions.
MS PARKS: I appreciate that. I am then going to address specifically the concerns about the United States as a third party again. The third point that I will raise has to do with Mr Larsen's attempts to exhaust all of his remedies to get to this point. I will then move on to clarify the difference between the ICJ and the PCA as Professor Greenwood asked me to do. Then I will finish with fact finding as Professor Crawford asked me to do. Going back to the four possible exceptions to the rules set forth in the case concerning East Timor, I had said earlier that the claimant's position was that this Tribunal should take the fact of the occupancy of the Hawaiian Kingdom as a matter of fact, because it is safe to conclude it from the documents that we have presented and because it is so clear, so blatant, that they have no option than to draw that conclusion. I had said earlier that there was no authoritative body of law that had ruled on the sovereignty of the Hawaiian Kingdom and now I would like to correct that statement. I would first refer to the Declaration of Great Britain and France relative to the independence of the Sandwich Islands, London, November 28th, 1843. Here we have Her Majesty the Queen of the United Kingdom of Great Britain and Ireland and the French Government taking into consideration the existence in the Sandwich Islands of a government capable of providing for the regularity of its relations with foreign nations. This document is annex 12 in the claimant's memorial and in our view this is the first authoritative body acknowledging the sovereignty of the Hawaiian Kingdom. Moving on from there, annexes 13, 14, 15, 16 and 17 would be the next authoritative body acknowledging the sovereignty of the Hawaiian Kingdom, all five of these being treaties that the United States did sign with the Hawaiian Kingdom. In addition, I would cite the treaties that were contained in the class action law suit which Lance filed back in 1999 and the complete content of that law suit is part of the Hawaiian Kingdom exhibits. In that law suit, Lance did name all of the nations with which the Hawaiian Kingdom has treaties: United Nations, France, Denmark, Sweden, Norway, United Kingdom, Belgium, Netherlands, Italy, Spain, Switzerland, Russia, Japan, Germany, Portugal and Samoa. Here we have a collective body of nations acknowledging the sovereignty of the Hawaiian Kingdom. I would re-clarify that there have been many authoritative bodies, perhaps not the United Nations or some more modern international body, but all of these different nations, including Great Britain and France, have acknowledged that the Hawaiian Kingdom is a member of the family of nations and went so far as to sign treaties with the Hawaiian Kingdom validating this fact. This is not merely an assumption that the claimant is making. This is historic fact as validated by these historic documents. These treaties establish the jurisdiction of the Hawaiian Kingdom and the sovereignty of the Hawaiian Kingdom. Under the international laws that regulate international relations, these are binding international laws that in the claimant's position bind the Permanent Court of Arbitration as well as all of the nations that have signed these treaties. Unless the United States of America can go to an authoritative body and win an award validating that it somehow acquired jurisdiction over the Hawaiian Kingdom, then all of these treaties would supersede a joint resolution which is a municipal law of the United States of America.
MR GRIFFITH: Are any of these treaties after 1898?
MS PARKS: No, they are not. They are all prior to 1893. When President Cleveland in 1893 acknowledged that an occupation had commenced by the United States troops landing in Hawai'i - and I read you that excerpt earlier - he formally initiated the laws of occupation or he formally invoked those as applying to the situation at hand. It is the claimant's position that unless the United States of America has somehow validated its acquisition of Hawaiian Islands with an international body that it merely has a fraudulent claim looming and that, because the Hague regulations were invoked in 1893 not only by President Cleveland, they would have been invoked by the facts alone, that ...
PROF GREENWOOD: I am sorry, Ms Parks, which Hague regulations are you referring to?
MS PARKS: They were passed in 1907, but they were the codification of international customary law regarding occupation, so as of 1893 we are still dealing with the customary laws of occupation. I think that in the 1907 Hague Conventions it does say that they are simply codifying what is already considered to be the laws of occupation. I think that Cleveland's invocation of the term "occupation" would clearly bring those international laws, even if they had not yet been formally codified until 1907, into play in this situation. It is the claimant's position that the Hawaiian Kingdom's sovereignty has been validated by all of these nations and that the United States has made its own claim to infringe on that sovereignty, but, unless they go and perfect their title before an international tribunal, those who deal in international law are bound to observe the treaties and bound to observe the recognition of the sovereignty of the Hawaiian Kingdom. That is, in fact, why we came to the Permanent Court of Arbitration and sought experts in occupation, because we feel that the facts of occupation are so clear that experts looking at the situation would have no choice other than to acknowledge all of these treaties and this recognition of independence and that, unless the United States of America goes to some international tribunal to perfect its claim, it is really a fraudulent and illegal claim without any merit whatsoever. They are violating their treaties, the Vienna Convention, the Hague regulations and they have never taken any step or put forth any document that would call into question the validity of the Hawaiian Kingdom. They have never had any other nation or any international body validate any of the actions that they took.
PROF GREENWOOD: I have to say that I am still a little uneasy about what you say for this reason. What you have just put to us is very important about the recognition of the Hawaiian Kingdom in the 19th century, but I think that, when Professor Crawford put to you the point about something being authoritatively determined, he was referring to the question that was actually central to the proceedings being the subject of an authoritative ruling today. The fact that in the 1840s the major powers treated Hawai'i as a kingdom is quite different from the question whether Hawaii's status as an independent country or a part of the USA has been authoritatively determined as of the year 2000.
MS PARKS: Of course. My response to that would be that with all due respect the confusion and the failure to see how blatant the sovereignty of the Hawaiian Kingdom is and remains is the perfect example of how history has been manipulated and there has been mass confusion over the last 100 years. Lance trying to enter the Netherlands is the perfect example of the fact that all of these other nations have bought into what the United States has claimed. Even without any international validation of American claims, these other nations have followed suit into what America has claimed, but yet it remains that unless America can prove it somehow infringed or somehow acquired any territorial rights that these treaties are still binding. A simple legislative act cannot affect these treaties.
THE PRESIDENT: Of course, as a matter of international law, the question of the existence of a state is prior to the question of the existence of its treaties. If a state ceases to exist, then its treaties lapse. There then could arise questions of succession with respect to any replacement state. When Czechoslovakia ceased to exist at the end of 1992, by definition there was no Czechoslovakia left and the fact that treaties had been entered into did not somehow continue it. There was then a question of succession with respect to the treaties of Czechoslovakia so far as the Czech Republic and Slovakia was concerned. It is not enough to go back and say that, because we have a treaty with Czechoslovakia, therefore Czechoslovakia exists, unfortunately international law looks at the question the other way around. The other point is that you talk about international validation and then you say that nations have, in effect, implicitly or just through their conduct recognised a particular situation. Again, in international law it is possible for recognition to occur on a decentralised basis provided that it happens over a period of time and with general consent. If I could take you, for example, to the Timor judgment, page 104 of the report in paragraph 32, this reflects the point that Professor Greenwood has just mentioned as well. "The question for the court was not what was the attitude of the United Nations in 1976, the year after the Indonesian invasion of East Timor." It is clear what the attitude of the United Nations was in 1976. The Security Council and the General Assembly both passed resolutions in that year. The problem was what was the situation in 1995 when there was a big gap between the last United Nations resolution of 1982 and the time when the court was sitting. We have the same gap here except that it is a longer gap. The court in paragraph 32 said, "We cannot simply infer. Whatever the position may have been in 1976, We cannot infer that it is the same now. We have to actually make a judgment". They thought that it was relevant that the treaty with which Portugal complained had been circulated to the United Nations. Portugal sent it to the members of the United Nations and said, "Look, this is offensive" and no one did anything. It was a case of implicit inactivity and the court thought that was significant. At the end of paragraph 32 they said, "No responsive action was taken either by the General Assembly or the Security Council", that is to say by the members of the United Nations. The problem we have in applying the authoritative exception (let us not get them confused and assuming for the sake of argument that there is such an exception) is that, while you have authority in the 19th century as to the existence of the Hawaiian Kingdom, and there is no difficulty in accepting that there was a Hawaiian Kingdom which was a legal person in international law, the problem is that we have to assume that that is still the case and that requires a legal judgment. That has not been decided authoritatively.
MS PARKS: I am sorry, can you repeat that last part?
THE PRESIDENT: In the same way that it had not been decided authoritatively that Indonesian did not have sovereignty over East Timor in 1995, even though it may have been decided in 1976, and it was not decided in 1995 and the court, therefore, said, "Well, we cannot decide it because of the absence of the state affected". If the Security Council in 1995 had authoritatively said "Indonesia does not have sovereignty", the position might have been different - but they have not. We have a situation here which looks, as it were, rather similar and we are trying to look to see if there is any way of doing it. The problem with your authorities is that they all go back to before a certain period.
MS PARKS: My understanding of the laws of occupation, which is very preliminary, and you guys are the experts which is why we are all here together, is that time alone is not sufficient to extinguish sovereignty. Absence of proper transfer of sovereignty and giving consideration to the protests lodged both by the sovereign of the Hawaiian Kingdom, Queen Lili'uokalani, and all of the nationals that signed the petition against annexation, that those protests lodged were enough to validate and preserve the Hawaiians' right to self-governance. I will defer to the Council of Regency to explain how the Hawaiian Kingdom has been re-established and continues to exist today. But it is my understanding that time alone is not sufficient and in Merrick's treatise on occupation she discusses that fact, that a prolonged occupation does not make a legal occupation and that protests that were lodged do preserve our rights to our nation at this time. I wanted to move on quickly to the concerns that the Tribunal continues to raise about the rights of the United States or of a third party. It was brought to my attention over the break that to isolate the United States as being affected in this case is not really seeing the whole picture. The Netherlands will also be affected. France will be affected. Denmark will be affected. All of the nations that continue to refuse to abide by their treaties with the Hawaiian Kingdom will be affected. That is why we initially named all of these nations in our class action. It is not just America. If the rights of America will be affected, so will the rights of the Netherlands and so will the rights of Denmark. This is an international issue at this point. Lance is unable to leave the Hawaiian Kingdom because no nation will recognise his passport. That is the result of 100 years of misinformation that has been put out by the United States of America. They have never had a ruling validating that they have any sovereignty. To isolate the United States as a party that will be affected, I think is misleading. If we are concerned about the rights of non-parties, then we are also concerned about the rights of Denmark, the Netherlands, England, France, Samoa and all of the nations that the Hawaiian Kingdom and the Hawaiian nationals have a relationship with. On a similar line, I feel that this is more of an international case than a case between two parties, because of the fact that Lance is trying to assert his nationality, which is protected under international laws, the Declaration of Human Rights, it is protected in times of occupation. The lawfulness of the US conduct must be analysed under international law but, without any ruling giving them any valid authority or lawful recognition of their sovereignty, it seems to me that the treaties and the international recognition of the Hawaiian Kingdom would have heavier weight under international law and the Vienna and Hague Conventions than a mere claim by the United States to have authority based on a domestic law. I felt this morning that by the Tribunal continually coming back to whether or not the United States has rights, with all due respect, is exemplary of the confusion with which we have been dealing in 100 years, that they do not have any rights. Even though they have been occupying for 100 years and trying to perpetuate this picture without any international validation of their rights, I do not see how this Tribunal can even be concerned with their rights. I do not know where their rights are coming from. I see that they have responsibilities as an occupying power. They may have rights under the treaties with the Hawaiian Kingdom, but to effect any other rights my question is where are those rights coming from in the first place?
THE PRESIDENT: One of the points that might be made there is that the "Monetary Gold" principle applies equally to obligations. It is certainly not a case of the Tribunal presuming that a third party has rights. It is the case of the Tribunal lacking jurisdiction to determine even the obligations of the third state.
MS PARKS: That makes sense.
THE PRESIDENT: For example, in the East Timor case, although that was put in part in terms of the rights of Indonesia, it could equally have been put in terms of the obligations of Indonesia; for example, their obligation to leave East Timor to allow the people of East Timor the right to self-determination which, as we all know now, is what happened, although no one in 1995 expected it. Within five years Indonesia had changed its mind. There had been an act of self-determination and the people of East Timor will become independent in the next year or so, so things can change. The point is not a case of this Tribunal trying to assert what the rights of the United States are. This is concerned with its jurisdiction in respect of the legal position of a third state and it does not matter that that legal position involves rights or obligations.
MS PARKS: I appreciate that clarification.
PROF GREENWOOD: Could I perhaps clarify something else in that case? You mention the possible effect of judgment on the Netherlands, France, the United Kingdom and other states, but the reason why the Tribunal asked you about the US position is quite important, because, if I have understood the nature of your client's claim correctly, your claim is that the Kingdom of Hawai'i failed to protect your client against what the United States was doing. It is not a suggestion that the Hawaiian Kingdom failed to protect him against something that Britain, France or Japan was doing.
MS PARKS: Actually, as of two days ago, I think our claim has enlarged. I do have an exhibit that I would like to offer. I have copies for the arbitral Tribunal as well as the Hawaiian Kingdom. (Handed) Now the Netherlands has got involved in this case as a potential third party. If you see on the first document, "Customs of the Netherlands did officially refuse Lance Larsen entry into the Netherlands". You will see on the top of the page it has his name, date of birth, nationality, American. I was with Lance. He was showing treaties, he was citing his rights, expressing that he was not an American, that he was a Hawaiian national. Now we have the Netherlands violating his rights. Of course, he would like to make formal pleadings to enlarge his claim against the Hawaiian Kingdom. They did try to intervene after Lance was detained. I know that they were making phone calls to different diplomatic offices here in the Netherlands trying to felicitate his access, but here once again the Council of Regency has failed to protect him, this time with respect to the Netherlands. Theoretically, Lance could try to travel to all of the different nations and every time that he is refused he has enlarged his claim again. Hence the point that I made earlier that this has become an international issue, more than just an issue between the Hawaiian Kingdom and the United States or Lance and the United States. His nationality is going to be denied everywhere on this planet until the Council of Regency can rectify the situation.
THE PRESIDENT: It may exemplify the situation of Mr Larsen. Does it make things better from a jurisdictional point of view? Let us assume for the sake of argument that you had commenced proceedings between these parties under the Permanent Court of Arbitration alleging a failure to ensure Mr Larsen's entry to the Netherlands. Surely the position would have been that in substance there was the prior question of the rightfulness or wrongfulness of the act of the Netherlands in refusing permission. It would simply be another example of the same underlying problem, that the substance of your complaint or at least the substance of the complaint upon which your complaint against the defendant is dependent is a complaint against a third party.
MR GRIFFITH: Can I ask you another related question, counsel? Do you see the declaration that you request from this Tribunal as enabling Mr Larsen to settle his difference with the Netherlands Government?
MS PARKS: Can you ask that again, please?
MR GRIFFITH: You have handed us this exhibit to show that the Netherlands Government regarded Mr Larsen as an American citizen of the United States.
MS PARKS: Right, refused to acknowledge his nationality.
MR GRIFFITH: Do you see that our decision would be relevant to resolving that dispute which your client has with the Netherlands Government?
MS PARKS: I think inevitably it would be relevant. I think that you would not be affecting the rights of the Netherlands, because their rights are already set out in the international laws of occupation and with their treaties with the Hawaiian Kingdom, but you would be validating that those rights continue to exist. They are still confused because of what America has perpetuated, that they do not acknowledge the nationality of Lance as an Hawaiian national. I hear the point that the Tribunal is making about the fact that your ruling might now affect the Netherlands, which just enlarges the problem of the third party, but I do want to state that my main intention for bringing this clarification in terms of Lance's relationship with the Netherlands is to show that we are trying to take the focus off America, that we are not here specifically to go after America or to have any ruling that might affect them. Really, we are trying to validate Lance's rights to travel internationally, his rights to his nationality under the universal Declaration of Human Rights and the laws of occupation. It is understandable that the focus of the third party has been the United States of America, given their role, but my intention at this point is to show that it is truly an international issue and that it is not just America that will be affected. Of course, that does not alleviate the concern about affecting third parties at all. Now we have a fourth, fifth and sixth party. But I felt it valuable to try to shift the attention away from the United States of America in order to clarify that we are not here to affect their rights. We are here to validate Lance's rights. That brings me into the next point that I wanted to make, which is that Lance has come to this arbitral Tribunal after exhausting all remedies that he has found available to himself in courts of the state of Hawai'i and the federal courts of the United States located in the Hawaiian Kingdom. The Hawaiian Kingdom has tried to go to the Supreme Court of the United States. We have got nothing but shut doors. To clarify that, he has tried to exhaust every legal remedy that he feels that he has before coming here, because he knows that America is on some tangential level involved here. I think that the suggestion earlier about trying to seek a Security Council or some type of United Nations resolution was very helpful, but I did want to make sure that you understood that we have tried to exhaust our remedies before coming here and convening this Tribunal. I am now moving on to the issue of the International Court of Justice versus the Permanent Court of Arbitration and whether arbitration is more lenient. I would argue that the jurisdictional issue is going to apply in both cases and that the main difference that we saw and why we came to the Permanent Court of Arbitration is that we could choose judges that specialise in the laws with which we are dealing. Also we wanted a more co-operative atmosphere, I have a feeling that the jurisdictional issues are going to be the same threshold in both court rooms. Professor Greenwood, you had mentioned that, perhaps, it was more lenient in the Permanent Court of Arbitration on the jurisdictional issue. My hunch is that it is not. If there is a third party that needs to be involved, it does not matter what court room you are in, that is still going to be a threshold issue. Of course, if you, guys, have expert opinion that helps my case more than that, we would love to hear it, but it is my guess that that jurisdictional issue is not going to be any different here than it would be in the ICJ.
PROF GREENWOOD: Let me make it quite clear. I was not suggesting that there was necessarily a difference or that there was not. I was merely suggesting that this was an issue on which you might like to make submissions to us. We appreciate the candour with which you have accepted that the East Timor principle would apply in this court room just as much as it would in the one the other side of the building.
MS PARKS: Yes. Finally, I was asked to discuss fact finding as to whether there are limitations in the rules and, if the limitations apply to fact finding, which facts will be found. I can make a brief comment as to the claimant's position, but the fact finding was requested by the Hawaiian Kingdom. It was not requested by Lance Larsen. I would prefer to defer to their submissions as to why they want fact finding and what they think the facts are that should be found and then reserve comment for Monday. But my initial comment without hearing their submissions tomorrow would be that we are interested in finding the extent of the Hawaiian Kingdom's responsibility in relation to Lance. That is the fact that is in dispute. It is our position that until they somehow preserve Lance's nationality for him to be able to travel and to live as a Hawaiian subject, they remain liable. I am sure that they are going to differ on that fact, but I am interested to hear what exactly they would like to be found in fact finding tomorrow and then reserve rebuttal for that. But, since that did come from their side, I would like to let them take the lead on answering that question.
THE PRESIDENT: That is an entirely proper position to take. Of course, I quoted from their pleading and not from yours in that regard. We will wait with interest to hear what you say on that. Another point to make is that the question whether they are responsible for action or inaction is not a question of fact, it is a question of law. Of course, there may be a question of fact which underlies it, but it is as it stands a question of law.
MS PARKS: Given that, we would prefer to continue with arbitration, because that is really the question we are after, that question of law. I do not think that there is any factual dispute as to the many efforts that they have taken or the fact that they have not been able to protect my client. Given that comment, we would rather stay with arbitration because that is really why we are here.
PROF GREENWOOD: Ms Parks - I will address these remarks to the representatives of the Kingdom as well - you might find it helpful to have a look at the five cases of fact finding that the PCA has already been engaged in. They are briefly reported in this centenary volume of which I think copies have been made available to you. Should you wish to do so, please feel free to address us on those tomorrow.
MS PARKS: To summarise our position before concluding here, Lance filed this case with the premise that the territorial jurisdiction of the Hawaiian Kingdom is well established under international law based on 1843 recognition and the treaties and that, despite the occupation, sovereignty remains intact even over 100 years, because of the protests lodged by both the nationals and the sovereign of the Hawaiian Kingdom also in the 1890s. While American has perpetuated an image that they have somehow acquired sovereignty over the Hawaiian Kingdom, without a ruling from an international tribunal acknowledging that as a fact, we are all bound to operate under the laws and the treaties that remain valid. For one nation to claim to acquire another I do not think absolves treaty responsibilities or international laws of occupation. As Merrick cites in her documents occupants do not usually like to admit that they are occupying. I think that that is the situation in which we are in. It is our position that the Tribunal has an obligation to acknowledge the sovereignty of the Hawaiian Kingdom and, absent some authoritative ruling that the United States has sovereignty, it does not even have the power to acknowledge that the United States has any rights in the Hawaiian Kingdom. I may be mistaken in that and that is our argumentative position, but without some perfection of title or international validation of the actions taken by the United States, they are not involved in this case because we are dealing with a national and a government during a time of occupation and there is a distinct relationship there that we would like to clarify. I think that the fact that there is so much concern over affecting the rights of the United States has been a little challenging and that is why I bring in the Netherlands and the other countries to show that really it is an international issue that we will be affecting the rights of many countries. Again, unless there is some international ruling or authority that validates any transfer of sovereignty, this Tribunal is bound to recognise the inherent sovereignty of the Hawaiian Kingdom.
MR GRIFFITH: Counsel, to some extent your submission would be a submission that you could make were the United States a party, to say, "The onus is on you, the United States, to establish your position". In effect, what you submit to us is to say that it is so clear - you call it the blatant exception - that you say that you can make that submission in the absence of the United States.
MS PARKS: Actually, I would clarify that. It is not a submission, it is a fact that we are taking for granted and relying on filing the case. The submission would be that the International Tribunal does have jurisdiction given the duality of legal orders during an occupation. The factual truth or non-truth of the Hawaiian Kingdom is taken as a historical fact by the claimant. It is not something that he is arguing with the Hawaiian Kingdom or feels that the Tribunal has any leeway in acknowledging given international law. It is not part of our submissions as much as it is part of the facts under which we are operating. It is our factual assumption that that is the truth under international law and, absent any other evidence, there is nothing that any of us can do to change that.
THE PRESIDENT: Ms Parks, the question of whether a state has sovereignty is never just a question of fact, surely? It is a question of mixed law and fact. It may be clear what the answer is. It is clear that there is a state called the Netherlands and at some level there is no point in denying it, it is there, but, nonetheless, from the perspective of international law in any situation in which there is a dispute the question of territorial sovereignty is a question of law. I spend quite a lot of my time arguing about which of two states has sovereignty over a particular bit of territory. Although facts are an important part of that inquiry, the facts do not dispose of the question. It becomes a question of judgment.
MS PARKS: It would be the claimant's position that the laws are the laws of occupation that govern. That is why we cited those laws in the documents. Taking the facts that have been presented, including the United States documents, in conjunction with the laws of occupation, that leaves the claimant with the basic premise that he is a Hawaiian national and that, absent any international law that would say otherwise, which we have not identified or any other international fact or findings of a tribunal to say otherwise, that that is a factual assumption under which he is operating and filing this case. It is not something on which he is requesting a ruling. He is requesting a ruling on his rights with respect to his government.
PROF GREENWOOD: I dare say that just as Australia had recognised Indonesian sovereignty over East Timor so had a number of other countries - let us say for the sake of discussion that the members of the Association of South East Asian Nations had done - so that Australia would have been able to say in the ICJ, "If you rule on this case, you are ruling on the legal position". Leave aside questions of rights for the moment. "You are going to be ruling on the legal position of Indonesia. You are also going to be ruling on the legal position of Singapore, Malaysia and Brunei". Do you think that that would have affected the outcome of the case bringing those extra states in?
MS PARKS: I think that the case dealt with the third party issue and that all of those other countries would just fall under that same category.
PROF GREENWOOD: So it would not, in fact, have made any difference?
MS PARKS: I think that I am going to have to think about that one a little bit more before I say anything.
PROF GREENWOOD: That is quite all right. We will allow you to do that. It is actually quite important, because it goes to the point with which you opened this afternoon, your point about the other states that are involved. I think that what you need to do is to look at East Timor and then to make some submissions to us about whether it would actually have made any difference to the outcome in that case if the legal position of other states had been involved as well. If the answer is "no", then, with respect, the point you made at the beginning of your submissions this afternoon does not actually take you anywhere.
THE PRESIDENT: It actually makes matters worse rather than better.
PROF GREENWOOD: Yes.
THE PRESIDENT: I do not want to talk at all about your situation, but talking about East Timor, let us assume that Indonesia had intervened in the proceedings between Portugal and Australia and that both of the parties had said, "We are perfectly happy with this, you have come in, you are a party".
MS PARKS: Wonderful.
THE PRESIDENT: "That is exactly what we want. Now we can consider the real issues" and precisely your argument would have been put to Indonesia, "Where do your deeds come from? Where is your title to East Timor? In the light of the Security Council resolutions and so on, where does your title come from?" That would have been quite a difficult question for Indonesia to answer. It is quite clear that, if that had happened, it would not have been enough for Australia to say, "Well, you still cannot decide the case because Indonesia is not here". There was really no disagreement between the parties and it was obviously the case that the position of Indonesia was the key position because it was Indonesia that was occupying the territory. The position of other third states, which may or may not have recognised that situation, was really secondary. What mattered was Indonesia's position. The court certainly did not assume that Indonesia had any substantive rights in East Timor. It was a question that, vis-a-vis a court of justice, Indonesia had the right not to be judged or not to have its legal position affected by proceedings to which it had not consented and to which it was not party. If we are talking about rights, we are really talking about due process rights or procedural rights. We are not talking about substantive rights. The court left completely open the position of the parties and, indeed, they went on to say in that case that the people of East Timor had the right to self-determination. The court's judgment - and this is in a sense the difficulty - in East Timor is consistent with the assertion of Portugal, that the people of East Timor have the right to self-determination. The court said, "Yes, but that still does not entitle us to decide the case". That is the problem that we see as a problem in this case, although we are still, obviously, discussing it.
MS PARKS: If the Tribunal does not have any more questions, I would like to spend some more time with the cases and reserve my comments for Monday.
THE PRESIDENT: Mr Sai, we envisage that the time table would be that you would speak tomorrow in response to what has been said this morning and this afternoon. We are happy to proceed on that basis and adjourn now.
MR SAI: Yes, we will be presenting tomorrow morning.
THE PRESIDENT: Since we have been talking about the court down the corridor, the International Court is actually giving judgment tomorrow morning in a provisional measures application involving a dispute between The Congo and Belgium. No doubt, these people are more formidable than we are and, of course, know quite a lot about many aspects of international law - and I will not tell them that it has been conceded in this case that there are others who know more.
MR GRIFFITH: And there are 17 of them!
THE PRESIDENT: But it may be interesting for people here to listen to that. It will not take very long, not more than 20 minutes. The case involves the question of whether a judge in Belgium is entitled to indict the person who was then the Minister of Foreign Affairs with The Congo for international crimes and whether under international law there is immunity against such an indictment. That is a provisional measures application. We will start tomorrow here at 10.30. Thank you very much.
(Adjourned tomorrow until 10.30 am)
DAY ONE DAY TWO DAY THREE
Home Synopsis "Lance Paul Larsen vs. the Hawaiian Kingdom"
Permanent Court of Arbitration, The Hague
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