Preliminary Hearings Set in The Hague
for December 7, 8, 11 and 12th, 2000

The Polynesian
November 2000
(Download 572K PDF)

Beginning on December 7th, the World Court (Permanent Court of Arbitration) will hear preliminary presentations regarding the Arbitration case initiated by Lance Paul Larsen. The case, which was filed in The Netherlands in October of 1999, alleges a violation of Mr. Larsen's civil rights presented in two questions. The first question is whether or not Mr. Larsen's rights have been violated under the international laws of occupation, and if so, the second question asks the Court whether or not Mr. Larsen has redress against his government.

Larsen, who was incarcerated by the State of Hawai'i in October of 1999 for a traffic violation, has had expert witnesses testify on his behalf that the treaty of annexation in 1898 is, at best, a claim, and is not a treaty by any definition. In spite of the testimonies and the evidence which Larsen's attorney introduced as compelling and pivotal to the case, Kea'au District Court Judge Sandra Schutte ruled to ignore the claims of the defence, and sentenced Larsen to 30 days prison, seven of which were in solitary confinement. It is from these actions that the case in the World Court was born.

In the Procedural Order to the parties of July 17, 2000, the Tribunal requested the submission of further pleadings to be followed by a round of oral hearings to address the certain preliminary issues raised by the Tribunal. In December the parties will travel to The Hague and make presentations to the Tribunal on these issues. Paramount is the issue regarding the absence of the United States in the case. In the Procedural Order, the Tribunal indicated some apprehension regarding the non-participation of the United States to the arbitration. At the forefront of their concern, is the possibility of affecting a third party who is in the arbitration case.

In a statement to the Polynesian, Ninia Parks, lead counsel for Mr. Larsen stated "that the Tribunals cautious approach on the issue of the U.S. is justified, and that they are prepared to present arguments to relieve the Tribunal's concern about an award affecting a third party."

Legal counsel for the Hawaiian Kingdom are also prepared to present arguments to the Tribunal aimed to arrest their concern about affecting the rights of the United States. The Hawaiian Kingdom will submit oral testimony before the Tribunal reiterating that this case involves Lance Larsen and the Hawaiian Kingdom, and what the parties seek from the Tribunal is to provide a clear understanding of the legal relationship between a national and his/her government within the framework of occupation.

On March 3rd of this year, an invitation was delivered to the United States Department of State in Washington, D.C., to participate in whatever manner it believed appropriate. Thus far the United States has not shown any intentions of intervening in the case, and it would appear obvious as to the reasons. This is not a case about the occupation of Hawai'i, per se, but rather a case regarding the legal relationship between an individual and his government while under occupation by a foreign power.

There also arises the question as to why the United States has not made any effort to halt the proceedings in the World Court. After all, although Lance P. Larsen v. the Hawaiian Kingdom is not about the occupation of Hawai'i, the situation that led Mr. Larsen to file the case at the World Court in the first place, was a result of occupational influences.

Dr. Eyal Benvenisti, Professor of International law and author of several works on occupation stated "It would seem that measures taken by an annexationist state, or by any other regime that illegally attempts to alienate permanently an occupied territory from its lawful sovereign, do not mandate any deference under international law. The occupant who establishes such a regime does not seek international protection for its interests, and, indeed, is not entitled to it. There is no point in trying to encourage this occupant's observance of the law: this occupant is indifferent to the reaction of the ousted sovereign simply because it has no intention of relinquishing its hold. As it fails to share power with the lawful government under the auspices of international law, the latter is not precluded by the same law from taking whatever countermeasures it can in order to protect its interests during and after the occupation. Under such circumstances, the ousted government, from exile or upon its return, is under no obligation to respect those measures that would have been lawful had the occupant respected the basic norm of international occupational law. The message to the occupant, upon its assumption of power, is that there is but one way of receiving recognition of its measures, and that is by administering the territory in accordance with the framework of the law of occupation."

For those who have begun to analyze the legal history of Hawai'i's relations with the United States, this is a landmark case. The oral hearings which will ensue on Dec. 7, 8, 11, and 12th, if nothing else, will have effectively placed all of the empirical evidence on record at an international level.

There is also the question of affect. What affect would any of this have on Hawai'i? Although this case is simply asking the international tribunal to provide a better understanding as to the relationship between the claimant and the respondent under occupational law, there are collateral aspects to consider. On a broader level, this case can serve to clarify an understanding to assist in providing a great measure of harmony between nationals and their governments. Indeed, one might consider how a Bosnian or Kuwaiti national might view this case, given their recent history of war, strife and occupation. Pau.

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