PERMANENT COURT OF ARBITRAION

 

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LANCE PAUL LARSEN, CLAIMANT

VS.

THE HAWAIIAN KINGDOM, RESPONDENT

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REPLY OF LANCE PAUL LARSEN

30 SEPTEMBER 2000

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REPLY OF LANCE PAUL LARSEN

TABLE OF CONTENTS

INTRODUCTION

1. PROCEDURAL SUMMARY
2. SUMMARY OF ISSUES RAISED IN PROCEDURAL ORDER NO. 3

 

PART ONE

CLAIMANT'S RESPONSE TO PROCEDURAL ORDER NO. 3

CHAPTER I		CLAIMANT'S RESPONSE TO PROCEDURAL ORDER NO. 3
CHAPTER II		JURISDICTION OF THE TRIBUNAL
CHAPTER III		SCOPE OF THE LEGAL DISPUTE SUBMITTED TO THE TRIBUNAL

 

PART TWO

SUBMISSIONS AND TASK OF THE COURT

 

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REPLY OF LANCE PAUL LARSEN

INTRODUCTION

A. PROCEDURAL SUMMARY

1. By an agreement of 30 October 1999, Claimant, Mr. Lance Paul Larsen entered into an Arbitration Agreement with the Respondent, the Government of the Hawaiian Kingdom, to submit the following issues for adjudication to the Permanent Court of Arbitration in the Hague, the Netherlands:

1. Lance Paul Larsen, a Hawaiian subject, alleges that the Government of the Hawaiian Kingdom is in continual violation of its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America, and in violation of the principles of international law laid in the Vienna Convention on the Law of Treaties, 1969, by allowing the unlawful imposition of American municipal laws over claimant's person within the territorial jurisdiction of the Hawaiian Kingdom.

2. Lance Paul Larsen, a Hawaiian subject, alleges that the Government of the Hawaiian Kingdom is also in continual violation of the principles of international comity by allowing the unlawful imposition of American municipal laws over the Claimant's person within the territorial jurisdiction of the Hawaiian Kingdom. (Annex 1, Claimant's Memorial).

2. The Arbitration Agreement further sets forth that Arbitration is to proceed under the Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between the Two Parties of which Only One Is a State.

3. On 8 November 1999, Mr. Larsen initiated formal arbitration by serving upon Respondent a Notice of Arbitration To Initiate Recourse To Arbitral Proceedings In Compliance With The Permanent Court Of Arbitration Optional Rules For Arbitrating Disputes Between Two Parties Of Which Only One Is A State. (Annex 7, Claimant's Memorial)

4. On 3 December 1999, Keoni K. Agard, Appointing Authority, informed the parties that according to Phyllis Hamilton, Deputy Secretary General of the Permanent Court of Arbitration, they "must amend by agreement the Notice of Arbitration to cite the proper authority before we can officially proceed in this matter. . . Apparently, the optional rules for arbitrating disputes between two parties [of] which only one is a state is inappropriate." (Annex 1).

5. Pursuant to this communication, the parties on 3 December 1999, did enter into a First Amendment to the Notice of Arbitration to initiate recourse to arbitral proceedings in compliance with the UNCITRAL Arbitration Rules as at Present in Force. (Annex 8, Claimant's Memorial).

6. On 25 January 2000, the parties did submit to the International Bureau of the Permanent Court of Arbitration a Special Agreement, which superceded the Arbitration Agreement of 30 December 1999. This Special Agreement further clarified the issue before the Tribunal:

The Arbitral Tribunal is asked to determine, on the basis of the Hague Conventions IV and V of 18 October 1907, and the rules and principles of international law, whether the rights of the Claimant under international law as a Hawaiian subject are being violated, and if so, does he have any redress against the Respondent Government of the Hawaiian Kingdom? (Annex 9, Claimant's Memorial).

7. On 22 May 2000 the parties did submit to the International Bureau of the Permanent Court of Arbitration their Memorials.

8. On 22-23 of June 2000, the parties did submit to the International Bureau of the Permanent Court of Arbitration their Counter-Memorials.

9. After consideration of the pleadings submitted by the parties, the Arbitrators did issue Procedural Order No. 3, which requests the parties to address several "preliminary issues."

10. In response to the Procedural Order No. 3, the parties submitted Special Agreement No. 2, dated 2 August 2000, in which the parties requested an Interlocutory Award verifying the continued existence of Hawaiian Statehood with the Hawaiian Kingdom as its government.

11. After consideration of the parties Special Agreement No. 2, the Arbitrators did issue Procedural Order No. 4, which essentially reiterates the concerns listed in Procedural Order No. 3, denies the parties request for an Interlocutory Award, and requests a second time that the parties address the jurisdictional concerns Raised in Procedural Order No. 3.

12. The Claimant now submits this Reply in accordance with the time schedule laid out by the Arbitrators in Procedural Orders Nos. 3 and 4, setting the date for submission of the Claimant's Reply on September 30, 2000.

B. SUMMARY OF ISSUES RAISED IN PROCEDURAL ORDER NO. 3

13. In their Procedural Order No. 3, the Tribunal for this case identified two distinct issues to be addressed by the parties. First, the Tribunal raised concerns about proceeding with arbitration under the UNCITRAL rules:

In short, there are questions whether the "dispute" identified in Article 1 of the Arbitration Agreement is one which is capable of reference to arbitration under the UNCITRAL Rules, or which the Tribunal has jurisdiction to decide in accordance with international law. . . . .

Under the UNCITRAL Rules, legal disputes between the parties to a contract are submitted to arbitration as between those parties, leading to an award which should be enforceable under relevant national laws in accordance with the general system for recognition and enforcement of international arbitral awards. . . .

Article 1 of the [UNCITRAL] Rules provides that they shall apply "[w]here the parties to a contract have agreed in writing that disputes in relation to that contract shall be referred to arbitration under the UNCITRAL Arbitration Rules." On the face of the pleadings, however, it appears that the dispute referred to arbitration is not a dispute "in relation to a contract" between the parties, or a dispute that relates to any other contractual or quasi-contractual relationship between them, or that it falls within the field of "international commercial relations" referred to in the preamble to the United Nations General Assembly resolution which adopted the Rules." . . .

There is therefore a preliminary question whether the dispute identified in Article 1 of the Agreement is an arbitrable dispute under the Rules.

14. Second, the Tribunal raised concerns about proceeding with the course of action set forth in Article 3 of the Arbitration Agreement, and again in the Counter-Memorials:

As further defined in the pleadings of the parties . . . the plaintiff has requested the Tribunal to adjudge and declare (1) that his rights as a Hawaiian subject are being violated under international law as a result of the prolonged occupation of the Hawaiian Islands by the United States of America, and (2) that the plaintiff ‘does have redress against the Respondent Government' in relation to these violations (Plaintiff's Counter-Memorial, para. 3). The Defendant agrees that it was the actions of the United States that violated Claimant's rights, however denies that it failed to intervene' (Defendant's Counter-Memorial, para. 2). Accordingly the parties agree on the first of the two issues identified by the Claimant as in dispute, but disagree on the second. The second only arises once it is established, or validly agreed, that the first issue is to be decided in the affirmative.

On this basis the Tribunal is concerned whether the first issue does in fact raise a dispute between the parties, or, rather, a dispute between each of the parties and the United States over the treatment of the Plaintiff by the United States. If it is the latter, that would appear to be a dispute which the Tribunal cannot determine, inter alia because the United States is not a party to the agreement to arbitrate.

There is thus a further preliminary question whether the Tribunal has jurisdiction over the first question submitted to it.

While the second question is one between the parties to the arbitration, that second question arises only if the Tribunal answers the first question in the affirmative. The Tribunal cannot proceed on the basis of an assumption or hypothesis regarding the first question. If the parties are inviting the Tribunal to do so, then it will be necessary to consider whether the Tribunal is, in fact, faced with a legal dispute within the meaning of the UNCITRAL Rules. . . .

Moreover under international law, there is a general principle that a non-national tribunal cannot deal with a dispute if its very subject matter will be the rights or duties of an entity not a party to the proceedings, or if as a necessary preliminary to dealing with a dispute it has to decide on the responsibility of a third party over which it has no jurisdiction.

PART ONE

CHAPTER I

CLAIMANT'S RESPONSE TO PROCEDURAL ORDER NO. 3

15. In response to the first preliminary issue raised by the Tribunal, the Claimant's position is that Arbitration in this case should be proceeding under the Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between Two Parties of Which Only One is a State. Both parties agreed to proceed under these rules in the Arbitration Agreement of 30 October 1999, and Claimant initiated Arbitration under these rules when he served the Respondent with the8 November 1999 Notice of Arbitration To Initiate Recourse To Arbitral Proceedings In Compliance With The Permanent Court Of Arbitration Optional Rules For Arbitrating Disputes Between Two Parties Of Which Only One Is A State.

16. Article 1 of the Optional Rules reads as follows:

Where the parties to a contract have agreed in writing that disputes in relation to that contract shall be referred to arbitration under the Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State, then such disputes shall be referred to arbitration in accordance with these Rules subject to such modification as the parties may agree in writing.

17. Article 16 of Convention for the Pacific Settlement of International Disputes, of 29 July 1899, reads as follows:

In questions of a legal nature, and especially in the interpretation or application of International Conventions, arbitration is recognized by the Signatory Powers as the most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle.

18. As explained in paragraphs 4-5 of the Introduction to this Reply, supra, the parties amended from the Optional Rules to the UNCITRAL Rules in response to the direction of the International Bureau of the Permanent Court of Arbitration. Without the request from the International Bureau, the parties would not have amended from the Optional Rules to the UNCITRAL Rules.

19. Despite this direction from the International Bureau, and the subsequent amendment by the parties, it is Claimant's position that the Optional Rules are more applicable than the UNCITRAL Rules because only one of the parties is a nation-state, and because the parties are not commercial or trading entities.

20. While there is no actual written contract, there is an implied constructive contract that exists between the two parties because of the relationship that exists between the Government of the Hawaiian Kingdom and the Claimant. (See Respondent's Counter-Memorial, p.5, para. 21).

21. In Procedural Order No. 3, the Tribunal expressed a second preliminary concern, namely that the task submitted to the Tribunal may in some way hinge on a declaration as to whether the United States has violated Mr. Larsen's rights. In response to this concern, Claimant assures the Tribunal that he is not interested in any ruling that would effect or involve the rights of the United States. The United States is not a party to this action, and cannot be brought into this action in any capacity. Mr. Larsen is interested in understanding the responsibilities and obligations of his own government, the government of the Hawaiian Kingdom, with respect to himself, a Hawaiian subject asserting his nationality and living in conformity with Hawaiian Kingdom law. Claimant is interested in the rights and duties of the occupied government of the Hawaiian Islands, not the occupying government.

22. In paragraph 4 of Procedural Order No. 3 the Tribunal expressed concern with the language contained in Article 3 of the Arbitration Agreement of 30 October 1999. As of 25 January 2000 though, the language in Article 3 of the 30 October 1999 Arbitration Agreement had already been superceded by the language in the parties subsequent Special Agreement (para. 6 supra). The language was amended because the parties acknowledged that the continued existence of the Hawaiian Kingdom was not an issue in actual dispute between the parties.

23. In Procedural Order No. 3 the Tribunal also raised concerns with some of the language in the Claimant's Counter-Memorial. Specifically paragraph 9 of Procedural Order No. 3 quotes the Claimant's Counter-Memorial which requests the Arbitral Tribunal to adjudge and declare that "Mr. Larsen's rights as a Hawaiian subject are being violated under international law as a result of the prolonged occupation of the Hawaiian Islands by the United States of America."

24. Claimant assures the Tribunal that this language is not meant to implicate the United States in these Arbitral proceedings. Claimant simply wants to know if he can hold his own government liable for not protecting his nationality. Claimant engaged in these proceedings in order to better understand the relationship between himself, a Hawaiian national, and his government, the Acting Council of Regency. Claimant would like to better understand whether his own government is violating his rights because it has been unable to adequately protect Claimant's nationality?

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CHAPTER II

JURISDICTION OF THE TRIBUNAL

25. The Permanent Court of Arbitration has valid jurisdiction over this legal claim as a direct result of the co-existence of two legal orders during the current occupation of the Hawaiian Islands. In her treatise, Identity and Continuity of States in Public International Law (1968), Krystyna Marek validates that under occupation,

the competence of the occupied State continues to exist . . . [and that] . . . [t]he legal order of the occupant does not operate freely in the occupied territory, but finds its limits in the surviving legal order of the occupied State, as well as in international law. (pp. 80-81).

26. The Tribunal also has valid jurisdiction over the parties because the surviving legal order of the government of the Hawaiian Kingdom continues not only to be valid, but also to be enforced outside the Hawaiian Islands (Marek at 84, citing Lorentzen v. Lydden, A.D., 1941/42, case no. 34.)

27. Although the Acting Council of Regency is not a government "in exile" because of the fact that it was re-enacted on domestic soil, the principles that apply with regard to the continued statehood of the occupied sovereign despite occupation still apply and vest this Tribunal with jurisdiction over the parties.

28. In addition, the Arbitration Agreement and subsequent agreements made between the parties vests this non-national Tribunal with the powers to specifically adjudicate the issues that were first raised between the parties in a lower national court.

CHAPTER III

SCOPE OF THE LEGAL DISPUTE SUBMITTED TO THE TRIBUNAL

29. The parties have convened this Tribunal to address whether the Government of the Hawaiian Kingdom is violating the rights of the Claimant, a Hawaiian national, by allowing the unlawful imposition of American municipal laws over Claimant's person within the territorial jurisdiction of the Hawaiian Kingdom.

30. As paraphrased in Claimant's Counter-Memorial,

The primary issue in contention between the parties is that of the liability of the Respondent Government of the Hawaiian Kingdom towards the Claimant with respect to his injuries (para. 13).

31. As the constitutionally re-established government of the Hawaiian Kingdom, the Acting Council of Regency is an organ of the independent and sovereign state of the Hawaiian Islands.

32. One result of re-establishing the government of the Hawaiian Kingdom is that the Acting Council of Regency has assumed international responsibility for its acts as the government of the Hawaiian Kingdom. (See Marek at 189, "the necessary and unavoidable limitation, the price of independence, is international responsibility.")

33. The Acting Council of Regency has acknowledged this responsibility itself in its submissions during these proceedings:

The Hawaiian Kingdom Government was established by its sovereign to acknowledge and protect the rights of its citizenry (Memorial, p.104, para. 335).

[T]he Acting Council of Regency has the responsibility of ensuring the enforcement of the laws of the Hawaiian Kingdom, even under an illegal occupation (Counter-Memorial, p.5, para.17).

34. It is Claimant's position that part of the international responsibilities acquired by the Acting Council of Regency when it re-established the Hawaiian Kingdom Government includes protecting the nationality of its subjects.

35. Claimant did provide the Acting Council of Regency with adequate notice of the continual denial of his nationality, and expected effective assistance from his government with respect to his efforts to assert his nationality.

36. Claimant seeks from this Tribunal clarification of the rights and duties of an occupied nation, which happens to be his own government, the Acting Council of Regency. Does this government have a duty to protect the nationality of the Claimant, or to prevent the unlawful imposition of foreign laws over him? Does the Claimant have redress of any type against this government for its failure to adequately protect his rights as a Hawaiian subject,

37. In sum, the questions submitted to the Tribunal by the parties in this case are centered around the relationship between the Hawaiian Kingdom and one of its nationals, Mr. Larsen.

38. It is the Claimant's position that until the Acting Council of Regency can fulfill this obligation by adequately protecting Mr. Larsen's nationality, he has a claim against the Acting Council of Regency for redress of grievances.

PART TWO

SUBMISSIONS AND TASK OF THE COURT

39. Having regard to the considerations set forth in the Memorial, Counter-Memorial, and Reply, the Claimant, Mr. Lance Paul Larsen, requests the Arbitral Tribunal to adjudge and declare that

1. The Acting Council of Regency of the Hawaiian Kingdom has an obligation and a responsibility, under international law, to take steps to protect Claimant's nationality as a Hawaiian subject, and that

2. Because the Acting Council of Regency of the Hawaiian Kingdom has failed to adequately protect Claimant's nationality as a Hawaiian subject, it is liable to the Claimant for redress of grievances.

As was requested in Claimant's Memorial, should the Tribunal affirm these submissions, Mr. Larsen further requests from the Tribunal any clarification on what types of redress are available to him.

Respectfully submitted, this 30 day of September, 2000,

 

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Ninia Stacia Parks
Attorney for Claimant Lance Paul Larsen