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IN THE PERMANENT COURT OF ARBITRATION CASE NO 99001
Peace Palace,
The Hague, The Netherlands
Friday, 8th December 2000
BEFORE:
PROFESSOR JAMES CRAWFORD (PRESIDENT)
GAVAN GRIFFITH, QC
and
PROFESSOR CHRISTOPHER J GREENWOOD
LANCE PAUL LARSEN Claimant
vs
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
DAY TWO
(AS AMENDED)
THE PRESIDENT: Good morning. Unless there are any questions of administration, we can start. Mr Sai.
MR SAI: Professor Crawford, Professor Greenwood and Mr Griffith, Madam Secretary Hamilton and the members of the International Bureau of the Permanent Court of Arbitration, greetings and aloha. On behalf of the agents and advocates constituting the Hawaiian Council, may I state that we are greatly honoured to have the opportunity to address this esteemed Tribunal as representatives of our Kingdom. It has been over a century since my nation's voice has had the opportunity to speak and I pray that we, who have been cast with carrying her message, will at every instance preserve honour and dignity to her name. Mr President, if I may be so bold, I am compelled to offer tribute to our late sovereign, Her Majesty Queen Lili'uokalani and to our countrymen who have come before us who have laid down the legal basis of Hawaiian statehood in so able and so complete a manner. However, why are we here? How is it that an obvious case of occupation by a belligerent state could have survived undetected for so long and by so many? However, we are not here to directly address that question, but rather we are here as a consequence. The deportation of Mr Larsen, which the Tribunal has been made aware of by counsel for the claimant, is most unfortunate, but it is a sign of the times for Hawaiian nationals who are taking affirmative steps to exercise their national rights. I daresay that Mr Larsen is but one of thousands of Hawaiian nationals who demand a better understanding, but these issues, as large and implicating as they may be, are not part of the arbitral proceedings. Mr President, if I may direct the attention of the Tribunal to Arbitration Agreement dated October 30th, 1999 and the Special Agreement dated January 25th, 2000. The Hawaiian Kingdom did enter into these agreements with the claimant's attorney, Ms Parks, as a consequence of Mr Larsen's incarceration for adhering to Hawaiian Kingdom law as it related to his right of liberty. Mr Larsen was incarcerated on October 4th, 1999 for 30 days, seven of which were in solitary confinement, so great were the violations of his Hawaiian civil rights that the situation demanded the involvement of a higher authority that could provide clarity into the relationship between a national and its government within the framework of occupation. It was decided that international arbitration would provide that higher authority. I should like to comment and quote Mr Michel Gaudet, Honourary President of the ICC Court of International Arbitration, who stated that the dominant feature of arbitration is mutual understanding so as to be able to solve the conflict that has occurred. The aim of arbitration is not to draw from the applicable law a decision against the parties involved, but to clarify together with the parties what should be done in a given situation to achieve justice and co-operation. Mr President, we submit that the present issue before the Tribunal is not a contentious case between the parties. We are not in the International Court of Justice to draw from the applicable law a decision against the parties, but rather we are here in arbitration to understand the relationship between the parties within the framework of applicable law. It was upon this understanding of arbitration that the Hawaiian Kingdom drafted its pleadings and has travelled all this way to address the preliminary concerns of the Tribunal as to jurisdiction and admissibility. What we did not expect yesterday was the claimant's introduction of matters not made a part of the dispute as agreed upon in the agreements. On this note, the Hawaiian Kingdom admits that it, too, has mistakenly done the same in its pleadings before this Tribunal, by referring to the United States as if they were a party to these proceedings. I will state that in defence of our zeal to tell a complete story of our nation's history, I am compelled to remind the Tribunal that the parties come from a country that has been subjected to prolonged occupation and, as such, I offer that at times it does make us a bit over zealous. Mr President, I shall be assisted in making Hawaii's presentation in these preliminary hearings by my colleagues, Mr Peter Umialiloa Sai, first deputy, Mr Gary Dubin, second deputy, Miss Kaui Goodhue, third deputy, and also by Mr Alvin Ka'ohu Nishimura, advocate, as well as Mr Bissen. I will start with a brief summarisation as to the reasons why we have gathered here today, in particular the concerns raised by the Tribunal in its Procedural Order No. 3 dated July 17th of this year. The present case involves the relationship between a Hawaiian national and his government within the framework of prolonged occupation. The merits of the dispute, though, are not at present the issue, but rather the Tribunal has raised preliminary concerns as to the applicability of the UNCITRAL rules of arbitration regarding the dispute between the parties and the possibility of affecting the rights of a third party not a member to the arbitral proceedings. Our presentation today is intended to remedy these concerns and to provide an opportunity to address any other concerns that the Tribunal may have which they feel is appropriate. First, the Tribunal's concerns. The Tribunal has raised a number of issues in Procedural Order No. 3 dated July 17th, 2000. Paramount are the issues regarding the rules agreed upon by the parties to govern the present dispute, in particular the UNCITRAL rules of arbitration and, second, the concern of jurisdiction as it regards the possibility of affecting a third party not a party to the arbitration. On that note, the Hawaiian Kingdom finds that in order adequately to address the two paramount concerns of the Tribunal it must first distinguish the United States' involvement in our country as that of an occupation and not de facto status. It is only against the background of the continued existence of Hawaiian statehood that the true nature of occupation can be understood and, consequently, the dispute before the Tribunal. What these proceedings cannot do is mistake illegal occupation with a de facto status which would mean treating the Hawaiian state as annexed, its continuity as interrupted, its identity as lost and its personality as merged with that of the occupant. We will first address the paramount concerns expressed by the Tribunal in Procedural Order No. 3, that being jurisdiction and the UNCITRAL rules. We will then provide a historic evaluation of our nation from its recognition as an independent state in 1843 and the maintenance of that independence to the present while under prolonged occupation by a foreign state. We will do this by a Powerpoint presentation that will first summarise the international recognition of Hawaiian independence and Hawaiian neutrality. We will then address the issue of the illegal occupation which includes sections on the fake revolution, the self-proclaimed Republic of Hawai'i and, finally, the US occupation of the Hawaiian Kingdom. In order to address the preliminary issues concerned and the concerns raised by the Tribunal, I would like to now turn it over to my colleague, Mr Gary Victor Dubin, second deputy agent.
MR DUBIN: Good morning, Professor Crawford, Mr Griffith and Professor Greenwood. It is truly an honour to be here today representing the Hawaiian Kingdom and, particularly, to be here representing the Hawaiian nationals who have come here half way around the world to be with us, because truly this is, as Mr Sai said, the first opportunity to present any of these issues that the Hawaiian people have to an international body. I could not help feeling yesterday, sitting here listening to what was going on, to remember exactly 40 years ago when I was a law student and we had a moot court competition, which I guess they still do today, we had the upper classmen sit as judges and I had prepared my first case. I had the books piled up and I was ready on all of the substantive issues and the judge said, "Do we have jurisdiction?" My mind went completely blank.
MR GRIFFITH: It is a bit like policemen. There is only one of the judges here who is the same age as you!
MR DUBIN: Well, let me tell you my mind went blank for fifteen seconds - it seemed like five years - and I remember from my Latin studies and I said, "The right to hear". After that we got into it. Since then, as a teacher of law and as a practitioner, I have probably been involved in thousands of cases involving jurisdiction in many different arenas - and now in this international stage. Yet, as I will suggest to you, I think that the issues are basically the same. As towards the end of yesterday Professor Crawford said, "It is a question of due process". It is nice to hear an Englishman talk about due process, but ...
THE PRESIDENT: Australian, Mr Dubin!
MR DUBIN: We lump them altogether. Basically, the issues are very similar, where you are confronted with a situation where there appears to be a question as to whether or not anything that the Tribunal is going to do is going to affect a party who is not present. Actually, in the United States we have a lot of experience with this. We do not call it international law, but, if for the moment I can assume that without being held to it that the state of Hawai'i is a sovereign state, we have 51 sovereign states in the United States and all the time the same issues arise, because the sovereigns are very jealous of their status, as we all know. WE have a quarter of a billion people in the United States and they are doing many, many things and the issues always arise in relationship to the sovereign states. I want to apply some of my knowledge from my own practice and teaching to the issue here today, but basically I want to address three points. First, I want to convince the panel that it is not a question of whether the panel has jurisdiction over the claims here, but it really is an issue which claims does the panel have jurisdiction over. The second thing that I want to do is that I want to convince the panel that this arbitration can proceed without the United States as a party and, obviously, how you separate the claims has some impact on that issue as well. Thirdly, I want to suggest that this arbitration can proceed under the Optional Rules. My conclusion will be that the jurisdictional issues about which we are going to talk are so intertwined with the merits that they should be considered along with the merits, since in part they will shape the decision as to which claims can be rightly addressed. Let me first briefly look at the claims. I am more interested at getting at these three famous cases that you mentioned yesterday, but first I want to look at the claims. One can look at this arbitration as a request for a declaratory judgment rather than as an attempt to get reparations or damages or things of that nature. I think that the minimum here is a desire to clarify the rights and responsibilities of nationals who find themselves in this kind of a situations. This is far from hypothetical, because it has taken a long time. The Hawaiian people - I would think that we would all acknowledge - have been extremely peaceful people in terms of what has gone on, as you will see in the Hawaiian territory, but Mr Larsen and others are having a better appreciation today of their heritage and what they feel is a denial of their rights. Of course, this led, in fact, to the United States Government, as you will see, as you probably know, frankly acknowledging various wrongdoings in the past. This is a real live issue in the United States and in Hawai'i and among probably over 100,000 nationals who are represented here by the people who had the ability to come and be with us this week. On the other end of the spectrum one could ask this Tribunal to make certain judgments about the legality even of the present status of the Hawaiian nation, the legitimacy of the United States presence. On, let us say, a ladder of more definitive conclusions, there are a variety of issues to which this Tribunal may decide it has jurisdiction and it does not have jurisdiction. I am going to argue, I believe on a reasoned basis, that even as to the issues of the legality of the present situation in Hawai'i, this Tribunal does have jurisdiction, and I am going to do that in a few moments by suggesting to you that the cases that you suggested we look at, although we can presume were decided correctly, the reasoning in those cases may not be the best. The more I looked at those cases the more I thought that this situation that we are presenting to you would give you an ability to make a contribution to that area of international law, because I am going to suggest to you where I think that the biggest problem in those cases is the reasoning and there would be other ways in which to rationalise those cases and those decisions and not have the same kind of problems that we are having today, because I frankly believe that the concern here about jurisdiction is an artificial one. There is nothing here which is going to affect the United States of America. There is nothing here that is going to affect the Presidential election. By the way, Hawai'i only has four electoral votes! There is nothing here that by any stretch of the imagination is going to have anything to do with the Dutch Government. Finally, I am going to disagree with the conclusion you reached in your Fourth Order, where you said that you could not get to the issues of the statehood until you worked out the jurisdictional question. I am going to suggest to you that there is precedent for coming to a different conclusion. Let me begin first of all by pointing out that in the International Court of Justice, Article 59 it states the obvious - "no decision can have a binding effect except upon the parties and their relationship to a particular case". Even without Article 59, we could presume that that would be the case. The issue as to whether or not there is any difference in arbitration here than with the International Court of Justice, although I tended to think there might be a distinction, because arbitration in the United States is something quite different to what we have here in the Permanent Court of Arbitration, I think essentially there probably is no difference; that no tribunal, whether it is the International Court of Justice or whether it is an ad hoc arbitration panel can affect a party which is not present. I think that the roots of that go back to Anglo-Saxon jurisprudence and before that. It is obvious why it is unfair to make a decision that affects another party if that party is not present. First of all, it is fundamentally unfair not to give them an opportunity to be heard. Also you cannot be sure of the information that you are acting on if you do not give someone an opportunity to present you with their evidence. That is why I find professionally these three cases Monetary Gold, Nauru and East Timor peculiar. It is almost as if in the least proud tradition of the common law that the exceptional cases in a sense came up first before the general rule came up, because who would have thought before 1954, for example, like the Monetary Gold case, that Italy could move in and try to get gold from the French Republic, Great Britain and Northern Ireland, which otherwise would be a share going to Albania on the assumption that they were damaged by Albania without giving Albania an opportunity to participate in that. It is not surprising in the Monetary Gold case that the court decided that it would be, in effect, prejudicial to proceed and there was a lack of jurisdiction. But I find the reasoning disquietening to say the least. With the understanding that no decision can bind a state which has not consented and is not participating, the reasoning in Monetary Gold said that the decision is based upon the fact that Albania is affected and the very subject matter of the decision pertains to their legal rights. I would suggest that without that reasoning it simply could have been determined, certainly as a violation of a corollary of Article 59, that you could not affect Albania in that manner without Albania being present. Therefore, I did not find the Monetary Gold case really to provide me with much teachings on the issue of jurisdiction. That was 1954. In 1992 with Professor Crawford on one side and Mr Griffith on the other, there was a challenge to jurisdiction.
MR GRIFFITH: At least it meant that one side would be a winner!
MR DUBIN: There were three states involved there and the issue was only one state was being sued and there was a claim of challenge to jurisdiction in the absence of New Zealand and the United Kingdom. I think that that was made by Mr Griffith. Anyway, the court went on to hold, "No, this is not a problem. WE are going to accept jurisdiction". Then they said, "Although there are implications for the legal situation of the other two states, there is no finding in respect of that other legal situation will be needed as a basis for the court's decision in Nauru's claims against Australia". I find this decision rather peculiar also in the reasoning. It just so happens that last year I argued a case in the Hawai'i Supreme Court which was virtually identical to this, in the sense that after the trial I came into the case for the appellate portion, and there was a promissory note and there were three borrowers. I convinced the lower court that it did not have proper personal jurisdiction over the one borrower. I tried to get in the lower court the whole thing set aside. The lower court decided that they could proceed against the two borrowers that they had. I did not know the reasoning of the Nauru case at the time, but I made the same argument. I said to the court, "Look, it is the same subject matter. You have got to make a decision that the promissory note is in default. That is a decision that looks like something that is making a legal conclusion against the borrower who the court did not have jurisdiction over." That was the Carbonel case. The long and short of it was that the Hawai'i Supreme Court affirmed, told me I was wrong and they said, "Because of joint and several liability, you can go after one". I am not still convinced that the Hawai'i Supreme Court was correct, but ...
THE PRESIDENT: I take it that you are not asking us to exercise appellate jurisdiction, Mr Dubin.
MR DUBIN: I am taking it under consideration. I think that the key here is once again that this Nauru case did not really present this extraordinary issue of jurisdiction in my mind and the reasoning is not very satisfying to me. Simply put, if I follow the reasoning of the Hawai'i Supreme Court, the other obligors, if they are sued, they can raise anything that they want because they were not a party. Once again, I did not find anything particularly of interest in the Nauru case except that in paragraphs 46 to 48 the court did go ahead to interpret agreements that involved all those states, which suggests to me that if in this arbitration we are asking you to look at various agreements, for example, we have a series of agreements between the Kingdom of Hawai'i and the United States, that just as the court did not see anything wrong with looking at those agreements in the Nauru situation, there would not be anything improper here. East Timor ...
PROF GREENWOOD: Before we come to East Timor, I wonder if you would allow me a question about Nauru. If you recall the administration of Nauru was a tripartite one of Australia, New Zealand and the United Kingdom, but it was Australia which actually ran Nauru as agent for the other three. Are you suggesting that the reasoning in the case would have been different if the proceedings had been brought, say, against New Zealand?
MR DUBIN: Not necessarily, to the extent that there was still joint and several liability, despite the different responsibilities.
PROF GREENWOOD: Is there not this difference, that with the proceedings being brought against Australia every act of which Nauru was complaining had been carried out by the Australian Government or under the authority of the Australian Government? New Zealand and Britain did not actually do anything other than being partners in the tripartite administration. They were not active in their involvement. Whereas if the proceedings had been brought against New Zealand you would have had the international court having to determine in proceedings between Nauru and New Zealand the legality of what was being done by Australia. That, I think, is the heart of the problem that you have to address.
MR DUBIN: But, perhaps, only to the extent that by doing that somehow Australia would be in a prejudicial situation, such as like in East Timor where perhaps money that would otherwise go to Indonesia might be going to Portugal. The conclusion to which I have come is that the language the very subject matter of the decision is misleading and, frankly, mischievous. But that is not really the decision point or in the old days what we called the ratio decidendi of a case. In American law, I want to suggest to you that there are some good things, perhaps, in American law and we have 200 years experience with this very issue, because we have 51 sovereigns. We do not use this phrase "not the very subject matter of the decision". Frankly, I find it extremely unsatisfying. We look for prejudice. We have actually four tests. One of them is whether - in this case whether the arbitration proceedings - there is any prejudice to the parties here or to the parties who are not part of the arbitration. You start with the fundamental principle that you cannot affect a party that is not here. That is axiomatic. If, however, what you do does affect a party, then you would lack the jurisdiction or you should not exercise that jurisdiction. Just the fact that New Zealand and the United Kingdom in the Nauru situation had not taken an active role, if you are looking at the issue of prejudice as the decision trigger, that might not concern you, but, if you are thinking in terms of this language "the very subject matter of the decision", which I suggest to you is a vessel with many holes, then you are going to get into the very question that you asked me. You are going to say, "If you are going to make this decision against New Zealand, then you are going to have to make some decisions regarding the Australia relationship contractually". I really do not think that that is a wise rationale for these cases. I do not think that it makes a great deal of sense. I think that it hides from view what really is the telling factor - that is the issue of prejudice - because you start out with a tortology. You cannot affect somebody who is not here.
THE PRESIDENT: In Monetary Gold you could. If I take you back to the Monetary Gold decision of 1954, certainly it was a case where on one side of the table there were three governments holding the gold.
MR DUBIN: Absolutely.
THE PRESIDENT: On the other side of the table there was a government wanting it and the gold belonged to a third state. If the court had said, "You are free to give that gold to the other side", that was clearly going to affect the third party.
MR DUBIN: That is why that decision was correct.
THE PRESIDENT: So what you are saying is that it is fine to apply that rationale to cases where, in effect, you are dealing with property or rights in rem - I do not want to interrupt the line of argument, you may go on to show this -but can you show us that this case is purely in personam; the present dispute is not in rem as well?
MR DUBIN: The Hawaiian Kingdom is absolutely in personam. Let us say, for example, that this Tribunal decides to look at the relationship between Hawaiian nationals and the Hawaiian government as re-established. From a very limited point of view, we are interested in understanding the roles and responsibilities of a government and its nationals who are in this kind of a situation. You do not have to say that the United States is illegally occupying Hawaiian. You can say that there is some argument that can be made that the United States is illegally occupying Hawai'i. Under that condition what is the responsibility of the Hawaiian Government and the Hawaiian Kingdom to its nationals who are claiming that they have a right to be ruled by their Government's laws? On the other hand, you could go further and you could say, "Well, as an arbitration panel, we are going to look at the legalities of the United States presence in the Hawaiian Islands". You could look at that issue and decide that without the United States' participation, we really do not have enough evidence and information to make that decision or you could look at that issue and decide that all the information that one would need is right in front of us. We have an allegiance to principles of international law. It is our job in an arbitration panel to apply those principles. In reaching the conclusion as to the relationship between the rights of the Hawaiian nationals and the responsibilities of its Government, we are going to find that the presence is an unlawful occupation.
THE PRESIDENT: To come back to the point, that would be a decision in rem.
MR DUBIN: Why would it be a decision in rem?
THE PRESIDENT: It cannot just be illegal as between two states - the two parties - it is either illegal or it is not.
MR DUBIN: You cannot affect the United States if the United States is not here. We certainly are not asking for any relief against the United States. That is something that is not a part of this arbitration, anything from exuberance that might have been present notwithstanding. but, in deciding this particular arbitration, an arbitration panel could well decide that, based upon the information that we have, which we feel is satisfactory, we believe as a matter of international law that it appears to us that this occupation is illegal. This is not a situation where you grab the gold out of the hands of the Albanians. This is not a situation where in East Timor we grab the money that is going to go to Indonesia and give it to Portugal. If in the course of the reasoning which is required to reach the issues that are being arbitrated between the parties I know of no reason why any arbitration panel could not make that decision if in good conscience it felt that it had the information before it and it made sense. If it did not, the arbitration panel would say that it is supposition and it might depend upon this or depend upon that. But, if it was a clear case, what I am saying is that this is a hobgoblin - what in Hawai'i we would call a shibai - to say that we cannot do this even if we believed it was true and our education and our professional teachings led us to this conclusion, because it would be affecting the state. IF you take the language of the cases that we are talking about, you would look and say, "Is it the very subject matter of the decision?" and, of course, you decide, "Well, it is not the very subject matter of the decision in the Nauru case, but it is the very subject matter of the decision in the Monetary Gold case". Those of us from common law countries know that we are dealing with the conclusions of thought not the triggers of thought. When we say that something is the very subject matter of the decision, we do not have something in our hand that says that this is a rule that says whether this is the subject matter of the decision, we apply the underlying policy to that fact pattern from which we then decide we are going to do one thing or the other and then we might call it "the very subject matter of the decision". What I contend to you in reading these three cases that you brought to our attention is that the reasoning could only be the same reasoning we use in American law - and that is prejudice.
PROF GREENWOOD: Mr Dubin, I am not sure that that is necessarily the whole story, is it? The problem that an arbitral tribunal sitting in international law has is that we do not have jurisdiction over the absent party. It is not simply that the absent party is not here, which is an issue which frequently arises in domestic courts, it is that we do not have jurisdiction over the United States in any event. Now, the reason why the court in East Timor went into this in such detail is that, of course, for an international tribunal to give a ruling which determines that a particular state has acted in a manner which is unlawful, when it does not have jurisdiction over that state, and that state is not present in front of it, would be in excess of jurisdiction. It is not simply the question of whether there is prejudicial effect on the state that is not there. It is rather a case of an excess of jurisdiction in ruling upon the legality of that state's acts when you do not have jurisdiction over that state.
THE PRESIDENT: If you take the Nauru case, there clearly was prejudice so far as New Zealand and the United Kingdom were concerned, because in the situation where Australia was held to be responsible there was no argument left to them. They had already, in effect, lost and, indeed, when the case was settled, I am pleased to say for the full amount of my client's claim, New Zealand and the United Kingdom were asked to pay a proportion of the settlement - and did - so there was prejudice but there was still jurisdiction because all the court had to do, as Professor Greenwood has pointed out, was to decide on what Australia had done. It did not have to decide on the legality of anything anyone else had done. Again, I do not want to interrupt your line of argument, but you may be able to formulate the issues between the parties in such a way that we do not have to decide on the legality of what non-parties have done or it may be that there are exceptions to the principle which we were talking about yesterday. It seems to me that those are the things that you need to address.
MR DUBIN: I think that that can be done. I think that the issue is not whether you have jurisdiction, but over what claims. My other argument is that you really need to look at the merits, because we have arguments that, because of the United States' conduct, they have, in effect, under international law waived certain claims or they would be estopped to argue others, but the point is that the issue is what claims would you have jurisdiction over, not whether you have jurisdiction. I think that the only way in which to decide that is really to go on to the merits.
THE PRESIDENT: One can conceive of cases - and indeed in another case in which I am involved that actually happened, the Nigeria/Cameroon dispute about the maritime boundary - the court said, "Well, we might have to apply the third party rule, but we will wait until the merits until we decide whether we have to apply it, because the third state, Equatorial Guinea, might intervene and we do not know exactly how much it would be affected". But the point was that in that case it was clear what the issues were. I think that, if you want us, as it were, to join the Monetary Gold issue to the merits, we do have to have a clearer idea of what the precise issues are between the parties that would enable us to do that.
MR GRIFFITH: If I could add to that, Mr Sai said in his opening remarks that this is not a contentious case, so that it may be that we would be assisted in having one counsel or other identify what is contentious and what is not contentious.
MR DUBIN: I noticed with interest in the East Timor case in paragraph 22 that they found that there was a real dispute even though the parties were somewhat agreeable on the basic issues. Let me go back to this question that Professor Greenwood raised. I recognise that there is a difference when the party that is absent is a state. We have that in the United States also. Let me give you this hypothetical. Let us say that someone in Europe sues Ford Motor Company claiming that they are responsible for an accident because of a crash that resulted from stress on a tyre. Let us say that that consumer cannot get jurisdiction over Firestone. So they go to trial in a municipality and Ford wants to present a defence that it is Firestone's fault. The issue is raised whether the Tribunal has jurisdiction because it may well find that Firestone is liable and, therefore, not allow a judgment against Ford. Someone interposes that this is going to be injurious to Firestone because they are not in the jurisdiction and they do not have an opportunity to defend. As we know, that case would go ahead even if the court found based upon information that they had that Firestone was at fault, it would not mean anything to Firestone. You could not take it to a jurisdiction where you could get a hold of Firestone. You would have to go through the process again. Professor Greenwood, are you saying that a decision by this body in the process of its reasoning to what the rights and responsibilities of the Hawaiian Kingdom's Government are to the nationals, if it came out with that conclusion, somehow that would be something that would be put up on the banner of international law and then have some binding effect upon the United States or would it just be restricted within the context of this particular arbitration?
PROF GREENWOOD: I am not suggesting that it would have any binding effect on the United States, plainly it would not, but, equally, a decision in the East Timor case that Australia had violated Portugal's rights would not have been binding on Indonesia. Nevertheless, the International Court by an enormous majority considered that it did not have jurisdiction to give such a ruling, because the very subject matter would have been the legality or illegality of Indonesia's presence in East Timor. I think that one of the reasons why one has to be a little cautious about the analogy you have just drawn with the Ford Motor Company and Firestone hypothetical proceedings is that in domestic law proceedings you start from the assumption that all individuals and companies are essentially subject to the jurisdiction of the court unless there is a reason for holding otherwise, whereas, of course, in public international law, states are not subject to the jurisdiction of tribunals unless they have expressly given their consent to be so subject. We operate in a rather different environment, for better or for worse, than the environment in which, say, the Hawai'i Supreme Court or the Supreme Court of the United States functions.
MR DUBIN: I think that it is even more complex than that, because in our federal system the federal government is a government of limited jurisdiction, not general jurisdiction. Many times the issue of adding a party would break the jurisdiction of the federal court because it would destroy diversity of jurisdiction.
PROF GREENWOOD: Yes, I can see that.
THE PRESIDENT: Of course, that is a problem that occurs a lot in Australia, with which my colleague, the former Solicitor-General of Australia, has spent many years of his professional life struggling. The point is that it is even worse in the international arena because there is no inherent subject matter - jurisdiction of an international tribunal - none whatever.
MR DUBIN: Is it not the case that what really underlines these decisions would be an intelligent reluctance of an arbitration panel, although it could exercise jurisdiction - we may not be talking about jurisdiction, we may be talking about the exercise of the jurisdiction - it would not normally be thought prudent to get into issues of that nature without having the other side present in the belief that otherwise you would not have the evidence that you would need before you to make a reasoned decision or, logically, that you might be so criticised by that that you might be injuring the institution in which you operate. Once again, because of the common law experience that we all share, I try to look to the policy behind the rules and every once in a while a unique case comes up. You might find this to be a rather unique case. In your exercise of jurisdiction you may go further to some extent that you would have otherwise thought, but, once again, I am sure that that depends upon your looking at the merits of the issue. This is truly a dark corner of international law. No one has really looked at the Hawaiian Kingdom situation.
THE PRESIDENT: Mr Dubin, you said "look at the merits of the issue". Can I ask you to define precisely what in your view is the issue or the issues?
MR DUBIN: Let me call your attention for the purposes of this proceeding to Lance Larsen's reply paper, paragraph 30. It says "The primary issue in contention is the liability of the respondent government of the Hawaiian Kingdom towards the claimant". I think that that is the first basic issue. I look at that as some kind of a declaratory judgment. Where does the Hawaiian Kingdom proceed in this complex environment to seek to protect the rights of its nationals assuming that it believes that the presence of the United States is an illegal occupation under international law and that that argument should be made without concluding that that is the case?
THE PRESIDENT: Let us take a hypothetical case? Let us take the case of the Dutch Government under German occupation in the Second World War. Let us assume that a question arose between a Dutch citizen and the Dutch Government as to what the Dutch Government should have done, for example, to protect that person being deported or to protect him being subjected to slave labour or so on? What difference would it make in international law to say that the occupation was legal or illegal? Would the obligations of the Dutch Government in that case be any different if the occupation was legal or illegal?
MR DUBIN: In your hypothetical the occupiers are Nazi Germany. In this situation the occupiers are the United States.
THE PRESIDENT: Yes, that is right, but I am asking the question ...
MR DUBIN: It makes all the difference in the world because the United States has signed international treaties which are impacted by this.
THE PRESIDENT: The question was intended to help you. It may be when I try and help people it is not obvious! You could argue that the Monetary Gold principle only applies when it is necessary to determine the legality of the conduct of a third state and not the fact of its conduct. In other words if you could say that the obligations of the occupied government in the hypothetical case I have given are not affected by the question whether the occupation is lawful or not, it is enough to know that in fact it is an occupation.
MR DUBIN: That was the point I was trying to make before.
THE PRESIDENT: On that basis there would be quite a good argument for saying that Monetary Gold did not apply, because all you are determining is a pure question of fact, and it is not a difficult question of fact; and therefore you go ahead and answer the question. It almost occurred to me, if I may say so, that it was a mistake for Portugal to argue that Australia's conduct was predicated upon the illegality of Indonesia's conduct. It would have been better for them to say Indonesia used force in fact to occupy East Timor. You do not need to say whether that force was lawful or unlawful, it is simply a fact that force was used that makes any recognition by Australia unlawful predicated upon the fact. You could have argued that Monetary Gold did not apply in a situation where the only thing you have to decide about the third party is the fact of its conduct and not the legality of its conduct.
MR DUBIN: I think you have said it well. That is what I was trying to say.
THE PRESIDENT: In that case I will stop trying to help you!
MR DUBIN: I am only an advocate, you have to make the decision. I wanted to briefly comment that this is a situation where it is certainly not an hypothetical case. As you will see with even the preview we are going to provide you of the merits, this is a real dispute bothering real people, some of whom have spent time in prison because of this, and we do not feel that the remedy that we are asking for at this stage has anything to do with changing the world as far as the United States sees it. We feel that there certainly should be in the international community the ability, and especially in this kind of situation, to secure intelligent decisions that can then not only operate as an educational vehicle, as an instructive vehicle for people, especially for Hawaiian nationals, but like any other decision its strength is its persuasive force, and we think when you see the merits of this and the uniqueness of this case, we think it will bring into clear focus probably other issues you have looked at in international law in your own professional life, because of that uniqueness.
PROF GREENWOOD: You refer to the remedy that you seek, but your clients are the respondents in this arbitration. What remedy are you referring to?
MR DUBIN: First I was referring to paragraph 30 of the Reply where the claimant stated what he saw the issue to be. From the point of view of the government of the Hawaiian Kingdom ...
THE PRESIDENT: I am sorry, but could you take us to that. This is the respondent's reply?
PROF GREENWOOD: The short reply in response.
MR DUBIN: Paragraph 30. The respondent government is seeking to be responsible and is looking for guidance as to where it goes from here in attempting to protect the rights of its nationals. It needs an intelligent analysis of its current situation in order to proceed intelligently,
PROF GREENWOOD: I can see the point of that but clearly the advice that you would be given by anyone, be it this Tribunal or anybody else, about where to go from here and what to do, will be very different if it is predicated on the assumption that the US presence in Hawai'i is illegal occupation from the advice that would be given on the assumption that the US was in fact the sovereign power in Hawai'i. So it still comes back to that central question about the legality or illegality of the Unites States presence in Hawai'i.
MR DUBIN: It does not have to if you step back slightly from that and view this as where that is in question without making that determination.
PROF GREENWOOD: If you can show us how that can be done we would find that very helpful.
MR DUBIN: I think you will find it obvious that there is a legitimate concern about the legality. In fact the United States has itself through its constitutional officers expressed that concern. There is an attempt being made now, as you may be aware, to establish some unique relationship with the Hawaiian people in the territory of Hawai'i. So it is not hypothetical. I think that is where we are.
PROF GREENWOOD: Mr Dubin, I think I have interrupted you quite enough. Let me leave you now to complete your submissions. I know how difficult it is when the bench keeps interrupting counsel.
MR DUBIN: Usually I am always interrupted. The only time I find I am not interrupted is when I lose! I have to comment on East Timor. International law certainly must be different because in municipal law we might look upon this as somebody who bought stolen property. But it is possible I think that this case could have gone one way or another depending on how it was analysed. Once again I am troubled by this. Despite Professor Greenwood's questions I am still troubled by this standard of decision making as to whether in the process of reasoning if you have to make a decision that talks about the legals of a non-party, even though a state; and yet I think the issue could more properly be addressed as prejudice. In the best tradition of the common law and international law if we have 55 more cases after East Timor and the Hawaiian Kingdom I would submit to you that I do not think that this reasoning would survive and that there are other factors behind this that would be much more satisfying and will eventually I think probably come out in the cases. Since you asked let me just say we have not given much thought to the fact finding aspects of this. We do not know whether that really would achieve the objective that we have in mind. My last point was, as I promised you, that I would argue that the arbitration can proceed under the optional rules.
MR GRIFFITH: Could I just ask you about this fact finding. One problem is that I have not yet seen identified facts that are in dispute between the parties that you would wish us to find. Are there facts in dispute?
MR DUBIN: I think we would be right back to the same issues. I think we would just go round in circles.
MR GRIFFITH: Can we say then that in effect your submission is that there does not seem to be any particular advantage to take up the possibility that there is flagged to go to a fact finding role?
MR DUBIN: Most likely, except that we have so much faith in you we wanted to leave that door ajar, because we do not know exactly what you may come up with.
MR GRIFFITH: You put it no higher than as a last possibility you could refer to fact finding, but when you go to that for the moment the parties do not refer to particular facts in dispute that they want found.
MR DUBIN: That is correct, we are not really pushing that, but we suggested because it was suggested to us -- I will not say by who -- that maybe that was a door that may be you would want to open up. We do not find that very satisfying to be honest.
MR GRIFFITH: You are pushing at an open door and see an empty room.
MR DUBIN: I am not as candid as Ms Parks! In that case I would have to concede that. Regarding the Optional Rules from my professional background I would say that, if the issue was whether or not we are qualified under the Optional Rules to be here in this proceeding, but, first, you would have to decide whether the Hawaiian Kingdom was a state, because the rules say that you can have this kind of arbitration under the Optional Rules if one of the parties is a state.
MR GRIFFITH: And that means a state for the purposes of the Convention.
MR DUBIN: Correct, but you have still got that issue, despite that addition. I would suggest to you respectfully that you might wish to re-think your Order No. 4, because it seems to me - and I certainly know that we have what we feel is a very informative presentation on the Hawaiian Kingdom as a state and the reasons why under international law has continued to be a state, not necessarily related to any judgment of illegality on the part of the United States. My experience has been with what I might call "subject matter jurisdiction". Where there is an issue of fact, although it is obviously a mixed issue of law and fact, where there is that kind of an issue that has a factual underpinning, the tribunals where I have been before have been under an obligation to hold an evidentiary inquiry into that issue to decide whether or not they have jurisdiction. This case would be under the Optional Rules.
MR GRIFFITH: When you say "re-think", Mr Dubin, you mean possibly the Tribunal should, as part of consideration of whether or not the Optional Rules apply, consider on the merits this issue of whether or not the respondent is a state.
MR DUBIN: Yes, either by combining that with the merits or looking at that issue separately. We have actually a limited presentation today on that very issue.
MR GRIFFITH: Of course, that is a matter dealt with in the memorials already, is it not?
MR DUBIN: To a large extent. I think that what we are faced with is that not every decision-making context fits nicely into the rubrics that we have. What is nice about these kind of unique situations is that they help us to clarify what we are doing in the other context. I think that this is an extremely challenging set of facts, not one that probably will be easily duplicated in international law in the future and I think it may well help an understanding of other areas of the law. I certainly think that it is going to help clarify these jurisdictional issues which appear to just be still relatively starting in terms of these cases at which you have been asked to look. That was the extent of the presentation that I had planned. Thank you.
MR SAI: Sir, could we possibly break for lunch?
THE PRESIDENT: Yes, we will adjourn until two o'clock.
(Adjourned for 2.5 hours)
THE PRESIDENT: I hope that with the leave of the parties it would be thought in order that the Tribunal invited Mr Hans Jonkman to sit with us at the end of the table. He was the former Secretary-General of the Permanent Court of Arbitration for many years and had a great deal to do with the revival of the Permanent Court as an institution and it is a great pleasure to see him. You will be able to ask directly for opinions if you want to know what the rules mean, because he either wrote them or re-wrote them in every case. Mr Sai, before we start, the Tribunal has a question for the parties which I will hand out now. It is not intended that this be responded to immediately or, indeed, this afternoon, but it is in order to obtain clarity on the possible question of any inquiry into matters of fact which the parties may want the Tribunal to investigate in the alternative to arbitration in the event that the Tribunal were to hold that it was prevented from arbitrating the issue for one reason or another. In that event, we would need to know the attitude of the parties towards the question of an inquiry and also the precise identification of the facts that would be the subject of the inquiry under the Optional Rules. That is the point of the question. It would be appropriate that I simply read the question into the record. "Having regard to the request made by the respondent in paragraph 128 of its reply, if the Tribunal were to consider that it can and should exercise power under the Permanent Court of Arbitration's Optional Rules for a Fact Finding Commission of Inquiry in relation to any matter of fact with respect to which there is a difference of opinion between the parties, the parties are asked to specify, either by agreement or independently, what are the facts which may be submitted to a Commission of Inquiry under these rules". It would be entirely appropriate for the parties in responding to that question to say that in their view it would not be appropriate to proceed with a purely factual inquiry. On that basis, I will call on Mr Sai for the next of his presentations.
MR SAI: At this time I would like to yield for a minute or so to our second deputy to answer some of these issues that were brought up this morning and then I will be following him.
THE PRESIDENT: Thank you very much.
MR DUBIN: Gentlemen and distinguished guest, I have been asked the question as to what issues or questions we wanted to have decided, so I thought that I would just mention at this time prior to Mr Sai's presentation of the history, because I think that the history will, one, provide some of the answers to these questions and, two, the history will also suggest the extent to which the panel feels that it can exercise jurisdiction. There are five questions. The first question is, does the Hawaiian Kingdom continue to exist as a nation state? The second question is, has the Hawaiian Kingdom Government been re-established pursuant to its laws? Question three, does the Hawaiian Kingdom Government have a duty to act to protect its nationals in the same manner as any nation state and, if so, by what means? Question four, does the Hawaiian Kingdom have a duty to seek a determination of the lawfulness of the US occupation by the international community and, if so, by what means? Question five, is the Hawaiian Kingdom responsible for any redress to the claimant, Lance Larsen? Thank you.
MR SAI: The presentation I am about to give merely attempts to illustrate some of the facts that the Tribunal will be reviewing in relation to the questions posed by Mr Gary Dubin and also to the jurisdiction that the Tribunal will have to determine in order to look at those issues. The dominion of the Hawaiian Kingdom. In 1810 the Islands were united by King Kamehameha. For the first time ever eight Islands were actually under one rule. He was an absolute sovereign and, as such, the government and the man were one and the same. In 1819 upon the death of King Kamehameha I, his son Liholiho ascended to that throne, again still in an absolute form. In 1824 Liholiho after travelling to England had passed away by contracting measles. He was on his way to visit King George. His younger brother, Kauikeaouli, as we call King Kamehameha III, ascended to the throne. He was only nine years old and until he reached the age of majority the country was governed by a regent. On June 7th, 1839 King Kamehameha III began the process of establishing a corporate body separate from the person or the King in relation to establishing a government. On June 7th he established the first Declaration of Rights which could be compared to the Magna Carta, you might say, of England. In this Declaration of Rights, it was declared by King Kamehameha III that all the nationals had the right to life, liberty, freedom from oppression, their earnings of his hands and the productions of his mind. On October 8th 1840 King Kamehameha III established the first Constitution. For the first time ever the man and the government was distinguished. Henceforth, he was determined to be the chief executive rather than the absolute monarch. What also came out of this Constitution was the legislative and judicial branches of government. Within the legislative branch there was the House of Nobles and the House of Representatives. The House of Nobles could be compared to the House of Lords. The House of Representatives could be compared to the House of Commons. On June 24th 1985 the Legislature signed into law a resolution establishing or directing the Attorney-General to draft organic laws of the country. This brought forth the first Act of Kamehameha III establishing the executive ministries, the second Act of Kamehameha III establishing the executive departments and the third Act of Kamehameha III establishing the judiciary. On September 27th 1847 the Chief Justice of the Hawaiian Kingdom was requested to draft a penal code and this penal code adopted the principles of common law. In 1851 the Legislature passed a resolution establishing a commission to revise the Constitution of 1840. As a result, in 1852 a new Constitution was passed and signed by the King and made the organic law of the country. On April 6th, 1853 Alexander Liholiho, which was the son or the adopted son of King Kamehameha III, was named as the successor. According to Hawai'i's Constitutional law it needed to be confirmed by the House of Nobles in order to be valid. On December 15th, 1854 upon the death of King Kamehameha III, his adopted son, King Kamehameha IV, Alexander Liholiho, ascended to the office of monarch. In 1856 the Legislature passed the resolution to establish a commission to propose a civil code. In 1859 the laws were now codified in a Civil Code which was formerly under the organic Acts of 1845. In the Hawaiian Kingdom there is Hawaiian nationality, but there are two types, a Hawaiian subject and a Hawaiian denizen. I believe that England in the past had the issue of denization. The Hawaiian Kingdom had that and it referred to dual citizens. It was not required that a person who became a denizen would relinquish their former nationality. Hawaiian subjects, though, would be in the sense of the natives, the natives became Hawaiian subjects as a result of the unification of the Hawaiian Islands by King Kamehameha I. Foreigners to the Hawaiian Kingdom could become Hawaiian subjects by naturalisation. On November 30th, 1863 King Kamehameha IV passed away without naming a successor and Victoria Kamamalu, she was the premiere, assumed the role by constitutional provision. On that very same day she nominated Lot Kapuuaiwa to be King Kamehameha V and he was constitutionally confirmed by the House of Nobles. On July 7th, 1864 King Kamehameha V convened the Legislature for the purpose of drafting a new Constitution by a convention. For the first time ever the Hawaiian Kingdom was now going to be entering into a constitutional convention looking to the 1852 Constitution. On August 20th, 1864 King Kamehameha V proclaims a new Constitution because this convention was deadlocked on an issue of voting rights. In establishing this new Constitution King Kamehameha V had exercised what was called an executive authority as provided in the Constitution. This new Constitution did not possess that same authority to promulgate a Constitution on its own. This Constitution mandated that any change to the Constitution needed to be approved by the Legislative Assembly, two thirds of the members. The 1864 Constitution removed the office of the premiere. It mandated the monarch to take the oath of office. It removed that sovereign prerogative that was utilised by King Kamehameha V in promulgating that Constitution and established a unicameral house in the legislature whereas before it was a bicameral house, two separate houses. On December 11th, 1872 King Kamehameha passed away without naming a successor and as a result the Constitution provided that an election would take place in the Legislative Assembly and William Charles Lunalilo was that successor in office. William Charles Lunalilo died in 1874 which now provided for another means for the Legislature to reconvene and then elect King David Kalakaua, who was successor to King Lunalilo. On April 10th 1877 King Kalakaua proclaimed Lydia Kamaha'eha Dominis to be his successor. This woman is who we know today as Queen Lili'uokalani. In 1880 the Legislature passed an Act to provide for the codification and revision of the laws of the Kingdom which basically provided a compiled laws. We call it today the Compiled Laws of 1884. On October 16th, 1886 the Legislature was adjourned by King Kalakaua. The Legislature was capable of reconvening in special session until April 1888. The Legislature was out of session but remained in term. This becomes very important because what we are about to get into is the precursor of 1893. On July 1st 1887, while the Legislature was still in term but out of session, treasonous individuals forced King David Kalakaua to accept a new Cabinet Council. Under the constitution the Cabinet Council is defined as the Minister of Foreign Affairs, the Minister of the Interior, the Minister of Finance and the Attorney-General. Now, this new Cabinet Council which was forced upon Kalakaua then pushed a new constitution that basically allowed resident aliens to vote in the Kingdom, where once-Hawaiian subjects who were native by stock were now a minority in the country in the voting block. On January 20th 1891 King Kalakaua passes away and Lydia Kamaka'eha Dominis ascends to the office of monarch. That is Queen Lili'uokalani. In summary, from 1840 the Hawaiian Kingdom possessed a constitutional government with elected and appointed officials and a complete system of civil and criminal laws to govern Hawaiian territory. The Hawaiian domain - what constitutes its territory? On March 16th, 1854 Robert Wyllie, who by the way is a Scotsman from Great Britain, a Hawaiian denizen, had informed the resident commissioners of England, France and the United States of the 12 Islands constituting the Hawaiian domain and they were Hawai'i, Maui, O'aha, as provided. Newly-annexed Islands under the Doctrine of Discovery. In the Hawaiian Kingdom four Island groups were actually annexed by discovery and made a part of the Hawaiian territory. In summary, the Islands comprising the domain of the Hawaiian Kingdom, together with its three-mile territorial sea surrounding each of the 16 Islands, are located in the North Pacific between five degrees and 23 degrees north latitude and 150 degrees and 178 degrees west longitude. International recognition. This goes to statehood. On April 8th, 1842 King Kamehameha III in Privy Council commissions three envoys to secure international recognition of Hawaiian independence. These individuals are Timoteo Ha'alilio, William Richards and Sir George Simpson. This is Timoteo Ha'alilio, secretary to King Kamehameha III. This is William Richards, also a Hawaiian denizen, who served as adviser to the Hawaiian Kingdom Government. What I think that the Tribunal might find interesting is the third individual who helped assist in receiving or acquiring recognition of independence and that is Sir George Simpson, the British Governor in Chief of the Hudson's Bay Company's territories in the Pacific Northwest. On December 19th, 1842 Hawaiian envoys secured United States President Tyler's recognition of Hawaiian independence. On November 28th 1843 the British Government and the French Government formally enter into a declaration recognising Hawaiian independence. In our pleadings we refer to that as the 1843 Anglo-Franco Proclamation. From that point Hawai'i has had its statehood recognised as being independent. It possessed that independent personality. As such, it began to enter into these treaties. Austria, Hungary, Belgium, Bremen, Denmark, France, Germany, Great Britain, Hamburg, Italy, Japan, the Netherlands, Portugal, Russia, Samoa, Spain, Switzerland, Sweden and Norway and the United States of America. The Hawaiian Kingdom also was a signatory to the universal Postal Union Convention that was signed in Lisbon, Portugal. International recognition is evidence that the Hawaiian Kingdom had diplomatic representatives in the Hawaiian Kingdom as of 1893 from those countries as far as consulates and embassies. Hawaiian diplomatic agents abroad in 1893 were also in these countries. They numbered over 90 embassies and consulates as of 1893. In the pleadings it goes into detail as to who are manning those offices. In summary, from 1843 the Hawaiian Kingdom possessed the personality of an independent state and the Hawaiian Kingdom has a distinct government, a national population, a fixed territory and the ability to enter into international relations. The Hawaiian Kingdom was also proclaimed as a neutral state. On May 16th, 1854, as a result of the Crimean War that was about to break out in Europe, King Kamehameha III proclaimed Hawai'i as a neutral country leaving its harbours open for asylum to all foreign vessels and war ships. To suffice, let us get to the main points. The issue of Hawaiian neutrality was acknowledged by the other countries. In 1854 a treaty was signed between the United States and Russia establishing the principles of neutrality during war and the President of the United States subsequent to the signing of that treaty urged the King of the Hawaiian Islands to accede to those principles of neutrality, which was done on March 26th, 1855 by a resolution in the Privy Council. On April 5th, 1855 the Hawaiian Kingdom Government ratified its treaty with Sweden and Norway which included the rights of neutrality - "and His Majesty the King of Sweden and Norway engages to respect in time of war the neutral rights of the Hawaiian Kingdom and to use his good offices with all other powers to induce them to adopt the same policy towards the Hawaiian Kingdom". Those articles identifying neutrality were also in Article 26 of the Spanish Treaty, Article 8 of the German Treaty and in the additional article to the Italian Treaty. The Hawaiian Kingdom's adoption of the principles of neutrality led to the 1856 Declaration of Paris. On May 8th, 1871 the United States and Great Britain entered into a treaty further establishing the international rules of neutrality. At this time the Hawaiian Kingdom was fully recognised as a neutral state and was also bound by this principle of international law. New and stricter rules for the conduct of neutral states were expounded in the 1874 Brussels Conference and later codified in the 1907 Hague Convention No. 5. In summary, the Hawaiian Kingdom helped establish the international principles of neutrality during war. The Hawaiian Kingdom entered into treaties involving international principles of neutrality. The Hawaiian Kingdom adhered to the international principles of neutrality and in light of the above the Hawaiian Kingdom was internationally recognised as a neutral state at this time. The criteria for statehood as stated in the Montevideo Convention goes to a permanent population, a defined territory, a government and the capacity to enter into relations with other states. At this time it was clear that the Hawaiian Kingdom had fulfilled those four criteria. We are now about to enter into the occupation of the Hawaiian Kingdom. The illegal occupation of the Hawaiian Kingdom. The illegal occupation of the Hawaiian Kingdom is from our perspective. It is not a definitive perspective in relation to the questions posed to the Tribunal by the second deputy. We are now getting into the issue of was the Hawaiian statehood affected? On January 14th, 1893 Queen Lili'uokalani drafts a constitution to counter that "Bayonet Constitution". If the Tribunal can remember, I referred to the 1887 Constitution as the precursor. What happened here was this draft constitution was an attempt to reinstate the 1864 Constitution. That did not sit well with certain individuals who were part of the conspiracy in 1887. The Queen's actions generated fear amongst the co-conspirators of the 1887 Bayonet Constitution which basically allowed aliens to vote in our country's elections.
THE PRESIDENT: What was the proportion of aliens and Hawaiians in 1893?
MR SAI: According to the census of 1890, which is what we have from the Kingdom, we have to assume that there is still a margin of error for three years. 50.1 per cent were Hawaiian nationals, 49.9 per cent were resident aliens. Of the Hawaiian nationals, 85 per cent were aboriginal Hawaiians, 15 per cent were non-aboriginal. In order to further their conspiracy and formulate a counter plan by those individuals who were co-conspirators of the 1887 Constitution, this faction convinced the Queen's Cabinet Council in 1893 to delay her reinstatement of the lawful Constitution. In response to the Queen's delay, the conspirators met at a private office in Honolulu and selected a "Committee of Safety", which comprised of 13 individuals. These 13 individuals were comprised of five Americans out of the 13 members. These members sent a note to John L Stevens, the American Minister assigned to the Hawaiian Kingdom, and purported to say "We are unable to protect ourselves without the aide, and therefore pray for the protection of the United States forces". What we are not venturing into is the area of intervention. After delivery of that note, the so-called Committee of Safety (numbering 13) re-evaluated their treasonous actions and sent a small contingent to persuade the American Minister not to land the troops. The American Minister refused the so-called Committee of Safety's request and said the orders to land the troops have been issued off the USS BOSTON. Captain Wiltse, who was the US Naval Commander of the USS BOSTON, was ordered to land the force and the order stated "... for the protection of the United States legation and to secure the safety of American life and property". Between the hours of four and five pm on January 16th, 1893 a detachment of over 160 American troops were landed. Following the unprovoked landing of the American troops on January 16th, the Hawaiian Kingdom Government sent a protest to the American Minister and called it an unwarranted invasion of Hawaiian soil. The US Minister was evading the communications. The American troops who were landed to protect American lives in the American legation did not set up in a position to do that, but rather set up in this place, in defilé right here, which is off what we call Mililani Street today. Back here is the palace and to the right is the Government building. They were set in defilé to protect the Committee of Safety when they are about to announce themselves as the provisional government on the following day. At this time, though, on January 16th, we have to consider this an occupation by military force. On January 17th, the following day, at about 2.30 pm members of the so-called Committee of Safety proceeded to the Government building to proclaim the establishment of a provisional government while the American troops provided for their protection. In response to the United States' involvement and also under the dictates of being a neutral state, Queen Lili'uokalani submitted the following protest: "I yield to the superior force of the United States of America whose Minister Plenipotentiary, His Excellency John L Stevens, has caused United States troops to be landed at Honolulu and declared that he would support the provisional government. Now to avoid any collision of armed forces and perhaps the loss of life, I do this under protest and impelled by said force yield my authority until such time as the Government of the United States shall, upon the facts being presented to it, undo the action of its representatives and reinstate me in the authority which I claim as the Constitutional Sovereign of the Hawaiian Islands". In violation of international law, the United States Minister Stevens extended de facto recognition to the self-proclaimed provisional government on that very same day. In accordance with the prearranged plan, the provisional government sent officers to the United States of America to hastily (well, immediately) sign a Treaty of Annexation transferring Hawaiian territory to the United States. On February 14th 1893 that treaty was signed and on the following day it was deposited with the United States Senate for approval. At this time there was a change in Presidency. During the uprising of 1893 President Harrison was in office, but he was replaced by President Grover Cleveland in March. President Harrison did not act upon the protests of Lili'uokalani to investigate the facts of what their diplomat had done, but President Cleveland did. On March 9th, 1893 newly-elected President Grover Cleveland withdrew the Treaty of Annexation from the United States Senate upon receipt of Lili'uokalani's protest and he despatched James Blount to do the investigation - basically what I would submit to the Tribunal was a fact-finding commission - and there was a dispute between the provisional government and Queen Lili'uokalani. While in the Hawaiian Kingdom, James Blount provided the following report to US Secretary of State Walter Gresham, as I quote, "A careful consideration of the facts will, I think, convince you that the treaty which was withdrawn from the Senate for further consideration should not be resubmitted for its action thereon. Should not the wrong done to a feeble [and I stress] but independent State by an abuse of the authority of the United States be undone by restoring the legitimate government? Anything short of that will not, I respectfully submit, satisfy the demands of justice." US President Grover Cleveland had concluded from the investigation 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 as far as shown except the United States Minister. Therefore, the military occupation of Honolulu by the United States was wholly without justification, either of an occupation by consent or as an occupation necessitated by dangers threatening American life and property". Intervention and not revolution. Intervention is an external phenomena. Revolution is an internal phenomena. The military occupation occurred one day before the so-called revolution was instigated. If the revolutionary movement in one State is instigated and supported by a foreign State, that constitutes intervention. If the alleged revolution is conducted by citizens or by organs of a foreign State, it is considered an intervention. If it takes place under foreign pressure, as for example military occupation, it could be considered an occupation. Again, I am not intending to bring any conclusions here for the Tribunal, but merely stating some facts. On December 18th, 1893 President Grover Cleveland addressed the United States Congress on the findings of the Special Investigator, James Blount. President Cleveland found that the provisional government was neither a government de facto nor de jure but self-proclaimed. He also said that he would aid in the restoration of the Hawaiian Kingdom Government if Queen Lili'uokalani would grant amnesty to the participants of [this, as I say] Fake Revolution". Unbeknownst to President Cleveland at the same time he was giving this address to the United States Congress, Lili'uokalani did notify the American Minister assigned to the Hawaiian Islands, Albert Willis, of her declaration to grant amnesty according to the conditions dictated by the President of the United States. I beg to submit at this stage that what we have here is a fact-finding commission at an international level between two sovereign states. I am submitting that possibly this could be an expression of customary international law between the United States and the Hawaiian Kingdom and that out of this fact-finding commission arose an agreement where President Cleveland stated that Lili'uokalani must provide a condition of amnesty before he has the duty to restore. Again, our assessment of the situation. Queen Lili'uokalani agreed to all of the conditions for restoration of the Hawaiian Government as on record. However, the United States Government failed to assist in the restoration of the lawful Government of the Hawaiian Islands. Here, I think, I would like to distinguish between the Hawaiian statehood or the Hawaiian State and the organ which is its Government. That the State is still in existence and that Agreement is basically an acknowledgement of the continued existence of Hawaiian statehood except the restoration of its organ, the Government, which was based on the condition entered between President Cleveland and Queen Lili'uokalani. I submit, again respectfully, that we believe that that Agreement meets certain criteria of estoppel, that there was a clear and unambiguous agreement between Lili'uokalani and the United States President. The Agreement was entered into voluntarily and there was detrimental reliance on the part of the Hawaiian Kingdom which created a duty and obligation on the part of the United States to restore. The Agreement of Restoration of the Hawaiian Kingdom Government made between Queen Lili'uokalani and President Cleveland, we submit, preserved undeniably the continuity of Hawaiian Statehood, but what was left in question was the re-establishment of its Government. Created as an American puppet by US intervention, the provisional government usurped the laws of the Hawaiian Kingdom by enacting pretended laws calling for a Constitutional Convention. These individuals did not take heed to the conclusion of facts of President Cleveland and continued on their merry way. On May 30th 1894 a so-called Convention was convened to rename the provisional government as the Republic of Hawai'i. These are the same individuals, they are just changing their name. Delegates to the Convention were primarily voted in by foreign nationals. As the Hawaiian nationals held absolute allegiance to their nation, they were not allowed to participate and, I guess, they determined not to participate. Under the so-called Act of the provisional government, calling for a Constitutional Convention, foreign nationals were encouraged to vote because those loyal to the Hawaiian Kingdom were barred from participating. Before individuals could participate in the so-called Conventions, they were required to take an oath. On January 3rd, 1894 Sanford Dole, President of the so-called provisional government, proclaimed the establishment of the Republic of Hawai'i by Constitutional Convention. The actual change from the so-called provisional government to the Republic of Hawai'i would take place on July 4th, 1894. The intent of the so-called Republic was never to be independent. It was intended to transfer themselves immediately when the opportunity arose to the United States. In their Constitution they state that they will continually seek a Treaty of Annexation with the United States of America. On January 7th, 1895 the so-called Republic of Hawai'i declared martial law. On January 16th, 1895 they arrested Queen Lili'uokalani for treason as an attempt to gain international recognition as the legitimate government of Hawai'i. On January 24th 1895, while in prison, Queen Lili'uokalani was forced to sign a document abdicating the Throne. Here we have the problem. If they had the authority to declare martial law, they would not ask for the abdication after they arrested her. Now, luckily, the Hawaiian Kingdom was a Constitutional Government and her office was limited by a Constitution and not by her personal will. According to the Hawaiian Constitution, anything done by the Head of State must be countersigned by one of its Ministers or it has no effect of law. On January 16th, a second attempt of a Treaty of Annexation was signed in Washington DC between representatives of the self-proclaimed Republic of Hawai'i and the newly-elected President of the United States, William McKinley. This so-called Treaty remained subject to ratification by two thirds of the Senate. On June 18th, 1897 in Washington the Honourable Joseph Heleluhe, for and on behalf of Queen Lili'uokalani, filed a protest to the so-called Treaty of Annexation in the US State Department. This is part of the record in the pleadings. These facts that we are presenting are actually part of the pleadings with the exhibits attached. In her protest, Queen Lili'uokalani referred to the attempt of annexation as a violation of international law and stated that "... by treating with the parties claiming at this time the right to cede the territory of Hawai'i, the government of the United States received such territory from the hands of those whom its own magistrates pronounced fraudulently in power and unconstitutionally ruling Hawai'i", referring back to the investigation, the fact finding. Queen Lili'uokalani, in her protest, then called upon the United States President "to withdraw said treaty from further consideration" or, in the alternative, asked the Senate to decline to ratify. In addition to Queen Lili'uokalani's protest, petitions from three Hawaiian political organisations were filed in the State Department. Basically, these petitions reiterated the agreement that was entered into between President Grover Cleveland and Lili'uokalani that the amnesty was agreed to, but where is the restoration. In spite of these protests, the McKinley Administration intended to submit the Treaty of Annexation and it put the Hawaiian nationals back home into another mode of operating and what came out as a result was that in September 1897 the Men and Women's Hawaiian Patriotic League initiated a signature petition of 17,000 signatures to be deposited in the US Senate. As a note here, people in Hawai'i as Hawaiian nationals did not know that this petition existed. It was actually just discovered about three years ago in the National Archives in Washington DC. This petition is now travelling throughout the Islands of Hawai'i as a result of the efforts of Bishop Museum and now people today are finding their grandparents and great grandparents on that petition, so it is generating a lot of national pride.
THE PRESIDENT: What was the population of the Hawaiian Islands at the time of the petition?
MR SAI: It was 48,000.
THE PRESIDENT: Men, women and children?
MR SAI: Yes.
THE PRESIDENT: That is a very significant proportion of the total population.
MR SAI: The 21,000 signatures are actually the Hawaiian Patriotic League. There is one more signature petition that is outstanding but is on record in the newspapers as being 17,000. That is a great number of nationals who have signed that document. As a result of the vigorous protest by the Queen and Hawaiian nationals, the United States Senate failed to obtain the required two thirds vote and the Treaty was killed. After the so-called Treaty was killed, though, in the United States House of Representatives, Representative Newlands from the State of Nevada introduced a joint resolution providing for annexing the Hawaiian Islands by domestic statute. In summary, the Republic of Hawai'i lacked legal authority to govern Hawai'i. The Republic of Hawai'i lacked the popular support of Hawaiian nationals. The Republic of Hawai'i never intended to be an independent action under international law. Finally, the Republic of Hawai'i's sole purpose was to transfer itself immediately to the United States of America. On April 21st, 1898 the United States of America declares war against the Kingdom of Spain and fights the Spanish in both the Caribbean and the Pacific Oceans. Now they are going to be re-entertaining the idea of getting Hawai'i. The Spanish have colonies in Guam and the Philippines and the United States needs Hawai'i as a re-fuelling station and a training station or a staging point to fight the Spanish in Guam and the Philippines. After the breakout of the Spanish American War, Naval Captain Mahan and Army General Schofield gave testimony before the US House Committee on Foreign Affairs as to the military importance of the Hawaiian Islands. Captain Mahan stated to the US House Committee on Foreign Affairs - and please bear with me as I read this because I think that, in order to appreciate their statement in relation to what we are now claiming, I would have to read it. "It is obvious that if we do not hold the Islands ourselves we cannot expect the neutrals in the war to prevent the other belligerent from occupying them, nor can the inhabitants themselves prevent such occupation. The commercial value is not great enough to provoke neutral interposition. In short, in war we should need a larger Navy to defend the Pacific coast, because we should have not only to defend our coast but to prevent by naval force an enemy from occupying the Islands, whereas if we pre-occupied them, fortifications could preserve them to us. In my opinion, it is not practicable for any trans-Pacific country to invade our Pacific coast without occupying Hawai'i as a base." General Schofield stated before the US House Committee on Foreign Affairs, "We got a preemption title to those Islands through the volunteer action of our American missionaries who went there and civilized and Christianised those people and established a Government that has no parallel in the history of the world, considering its age." I would like to believe that that was on account of Hawaiians, with the assistance of others. "... and we made a preemption which nobody in the world thinks of disputing, provided we perfect our title. If we do not perfect it in due time, we have lost those Islands. Anybody else can come in and undertake to take them. So it seems to me the time is now ripe when this Government should do that which has been in contemplation from the beginning ..." The annexation resolution spurred heated debates in both the US House of Representatives and then later in the US Senate. The opponents of the resolution unsuccessfully argued the unconstitutionality of annexing a foreign territory by domestic law. On July 6th, 1898 during the height of the Spanish American War, the United States Congress passed a Joint Resolution purporting to annex our country. A Joint Resolution is a domestic law of the United States and it has no extraterritorial force. On August 13th 1898, in violation of the Neutral Rights of the Hawaiian Kingdom, American Troops illegally occupy Hawai'i in order to fight the Spanish in the Pacific Theatre. What we have here is a picture of what is called "Camp McKinley" just below Diamond Head in Wakiki. Under the International Laws of Occupation, the United States Government was mandated to establish a system of direct administration of Hawaiian Kingdom law or the law of the land (as we propose Hawaiian Kingdom law) until it withdraws, but it failed to do so. At the end of the Spanish-American War in 1898, the United States did not withdraw its Troops from the Kingdom, but rather maintained its illegal occupation in violation of the neutral rights of the Hawaiian Kingdom and international law, as we perceive. Instead of establishing a system to administer Hawaiian Kingdom law in accordance with the Law of Occupation, the United States in 1900 established a puppet government called the Territory of Hawai'i which would illegally impose American laws within the Hawaiian Kingdom, again from our perspective this fact. In 1900 the United States President, William McKinley, appointed Sanford Dole, traitor to the Kingdom, as the Governor of the Territory of Hawai'i. Those individuals that signed that signature petition to which I referred earlier, there are records that the Hawaiian nationals went underground, because now the most heinous criminal in our country was not given executive authority. In our history, which is more cultural now, everything went into hiding - and it was called survival. Only now are we realising what had occurred back them. Sanford Dole led the fake revolution in 1893 and served as the president of the unlawful provisional government and its successor the Republic of Hawai'i. Sanford Dole in Hawai'i is looked upon as a pillar of society. Given these facts that are now resurfacing, he is now looked upon as a criminal. Since the illegal occupation in 1898, American military installations were established throughout the Hawaiian Islands in violation of the Hawaiian Kingdom's neutral rights and the International Law of Occupation. There listed are all the different military installations. From 1900 to the present the United States Congress has continually applied American laws within the dominion of the Hawaiian Kingdom which is in continual violation of the International Laws of Occupation. Again, I have to state it is from our perspective. On December 14th, 1946 the United States erroneously reported to the Secretary-General of the United Nations that the Hawaiian Islands was an American colony in order to mask the American occupation of the Hawaiian Kingdom. This act fraudulently represented the United States status in the Hawaiian Islands and the relationship with other Nations. In 1959 the American Ambassador to the United Nations continued to mask the occupation of the Hawaiian Kingdom by reporting that: " ... since 1944 the United States has transmitted annually to the Secretary-General information on the Territory of Hawai'i pursuant to Article 73(e) of the Charter. However, on August 21st, 1959 Hawai'i became one of the United States under a new constitution taking effect on that date. In light of this change in the constitutional position and status of Hawai'i, the United States Government considers it no longer necessary or appropriate to continue to transmit information on Hawai'i under Article 73. I would like to submit that at this time they are representing Hawai'i as a non-self-governing territory.
MR GRIFFITH: Mr Sai, was there any sort of plebiscite or anything before statehood?
MR SAI: Yes, there actually was a Convention in 1950 which entertained the idea of statehood. In 1959 there was a plebiscite accepting what the United States had proposed to admit Hawai'i as a state. What we are submitting is that the ones who voted in that election or plebiscite were American citizens in a foreign territory called the Hawaiian Kingdom.
MR GRIFFITH: What was the proportion of the population at that date?
MR SAI: I do not readily have that information available, but I would be able to get it if the Tribunal needs to have it.
MR GRIFFITH: It is up to you.
THE PRESIDENT: Was there any resolution of the General Assembly at this time noting that Hawai'i was being taken off the list of Chapter 11 territories?
MR SAI: Yes, there actually was a resolution, which is actually in our pleadings.
THE PRESIDENT: I apologise.
MR SAI: All of these points are actually in our pleadings in much more detail. These are merely the high points. In 1890 the population of Hawaiian nationals, as I said earlier, Professor Crawford (and these are the specific numbers) was 51.1 per cent versus 49.9 per cent of foreign nationals. In 1990, 100 years later, under prolonged occupation by the United States, the foreign national population exploded to 944,000. They now numbered 85.2 per cent which isolated the Hawaiian nationals at 14.8 per cent, clearly, overwhelming the national population. In summary, since the Spanish-American War, American troops have occupied the Hawaiian Islands for military purposes. At the end of the Spanish-American War, the United States troops did not vacate the Hawaiian Islands. This is the way we perceive our nation, that throughout these points of fact our statehood was not diminished, but rather we are relying upon the agreement that was entered between President Grover Cleveland and Queen Lili'uokalani which certified statehood but did not go as far as to restore the Hawaiian Kingdom Government as its organ. Sir, if there are any questions.
PROF GREENWOOD: I would just like to ask a question briefly about the point that you just made. When you refer to "the agreement" between President Grover Cleveland and the Queen, what judical form did that agreement take?
MR SAI: Could you rephrase that please?
PROF GREENWOOD: I am trying to formulate the question without suggesting one particular answer to it. Perhaps it would be better if I were more blunt. Did it take the form of a treaty, of a contract or just an exchange of letters between the two?
MR SAI: If I may refer the Tribunal to paragraph 183 of the memorial of the respondent, it was in the form of a declaration by Her Majesty Queen Lili'uokalani to President Grover Cleveland via the American Ambassador assigned to the Hawaiian Islands, Albert Willis.
PROF GREENWOOD: Thank you, but it does not quite answer my question, unfortunately. I am very grateful to you for drawing my attention to that passage again, but what I am trying to establish is whether the legal form of these instruments was on the level of communication from one state to another or whether it was perceived in the United States as being communications within the USA.
MR SAI: It was established by communications made between two states.
PROF GREENWOOD: Will you just give us a moment while we just look at this again? It is quite important. (Pause) Thank you very much.
THE PRESIDENT: By the time these events happened Minister Stevens, who was obviously involved in the original arrangements, if I can put the term in a completely neutral way, had ceased to be the minister - had he?
MR SAI: Yes. His resignation was asked for by President Cleveland. In April he resigned. He was replaced by Albert Willis.
THE PRESIDENT: So Minister Willis was then the American Ambassador or the American Minister, but I suppose he was, in effect, an Ambassador. The earlier recognition given by Minister Stevens to the new "government", was that ever formally rescinded by the United States?
MR SAI: Yes, it was actually rescinded by President Grover Cleveland. It is actually in the December 18th, 1893 message to Congress, where President Grover Cleveland says that "when our Minister recognised the provisional government, it was neither a government de facto nor de jure".
THE PRESIDENT: He disavowed that act, so you say that that message to Congress was, effectively, a withdrawal of recognition - I have read the message to Congress in the papers - or was there any separate withdrawal apart from that?
MR SAI: The separate withdrawal would basically come from the communications between James Blount, the Secretary of State, notifying the President, but we, basically, on our part, look at Cleveland's message as the conclusion of the facts, therefore relying more on Cleveland's statement than Blount and Secretary of State Gresham. May I also point to the arbitrators paragraphs 195 and 196 of that same memorial. That shows that the Hawaiian nationals, as well as Lili'uokalani as Queen, were relying upon that agreement that was made to their detriment for the restoration of their government while that second treaty was being entertained in the United States Senate. Sir, if that is it, I thank you very much.
THE PRESIDENT: That concludes your first-round presentation?
MR SAI: Yes, sir.
THE PRESIDENT: Thank you very much. Ms Parks, I take it that there is nothing that you need to add today.
MS PARKS: No, thank you.
(Adjourned until Monday, 11th December 2000 at 10 am)
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