Larsen v. Hawaiian Kingdom Transcript
IN THE PERMANENT COURT OF ARBITRATION CASE NO 99001
Peace Palace, The Hague, The Netherlands Thursday, 7th December 2000
PROFESSOR JAMES CRAWFORD (PRESIDENT) GAVAN GRIFFITH, QC and PROFESSOR CHRISTOPHER J GREENWOOD
LANCE PAUL LARSEN Claimant
THE HAWAIIAN KINGDOM Respondent
MS NINIA PARKS, ESQ appeared on behalf of LANCE PAUL LARSEN
MR DAVID KEANU SAI appeared on behalf of the HAWAIIAN KINGDOM
Transcribed by Harry Counsell & Co (Incorporating Cliffords Inn Conference Centre) Telephone: 00 44 20 7242 9346 Facsimile: 00 44 20 7831 2526
DAY ONE (AS AMENDED)
THE PRESIDENT: Welcome. My name is James Crawford. I am sitting as a member of this Tribunal together with my colleagues, Mr Gavan Griffith and Professor Christopher Greenwood. The Tribunal is exercising jurisdiction pursuant to an agreement between the parties, Lance Paul Larsen, and the respondent, the Hawaiian Kingdom, an agreement which was amended on 25th January 2000. By a Procedural Order No. 3, dated 17th July 2000 the Tribunal indicated to the parties some preliminary issues which it wished to have dealt with before it could proceed to consider the merits of the dispute. In a further Procedural Order No. 4 of 5th September, the Tribunal reaffirmed and further specified the content of Procedural Order No. 3. Thus, the primary purpose of this hearing is to enable the parties to address those questions, though it is understood that in the course of doing so the parties may wish to provide general background in relation to the dispute between them and to the underlying factual questions as dealt with in the pleadings so far. By agreement between the parties, the Tribunal today will hear submissions on behalf of the claimant by Ms Parks and tomorrow will then hear the response of the respondent. On that basis, I will call on Ms Parks.
MS PARKS: Aloha, distinguished members of the Arbitral Tribunal. My name is Ninia Parks and it is my honour to stand here today representing Lance Paul Larsen. Unfortunately, he is not here with us in the court room today. He attempted to attend the hearings by travelling from the Hawaiian Kingdom to Amsterdam. We did arrive together on 5th December, a couple of days ago. Unfortunately, because he is travelling under an Hawaiian Kingdom passport and the Netherlands customs agents did not recognise his passport, he was turned around and sent back towards the Hawaiian Kingdom. He is currently in an hotel in San Francisco and it is my understanding that we will be able to communicate with him over the phone here today. I think that now would be a good time to let him introduce himself over the phone if that connection would be possible.
(Mr Larsen was telephoned on US 650 583 9600 in Room 672)
MS PARKS: Aloha Lance, I am here in the court Room with the Arbitral Tribunal. I would like to introduce you formally to them. Lance Larsen, we have the three distinguished members of the Arbitral Tribunal in front of us. I have explained your situation in terms of being denied access because you are upholding your nationality as a Hawaiian subject.
MR LARSEN: That is correct.
MS PARKS: If there is anything that you would like to say to the Tribunal at this time, I encourage you to make a statement, otherwise I can proceed with the merits of your argument.
MR LARSEN: Excuse me, could you repeat the last portion of what you just said, please?
MS PARKS: I am encouraging you at this point to make a brief statement about your case, your relationship with the Hawaiian Kingdom and your attempts to assert your nationality and you are seeking protection from your Government. If there is anything else that you would like to add at this point before I run through the legal jurisdictional arguments that we have discussed already, now would be the time to make any statements.
MR LARSEN: I would put on record that basically I could reiterate the fact that I did petition the Council of Regency. I have filed three grievances for the Council of Regency to step in and defend my rights which are being violated. I know that it is inconvenient to work like this, but I guess that this is the current situation and I am very exhausted. Could you just ask me what you would like me to say so that I could get to the point rather than just going on?
MS PARKS: We will be focusing on the jurisdictional issues today rather than the merits of the dispute, so it is unnecessary for you to say anything specifically, but I feel that it is important that you at least have a voice here since this is your case and have an opportunity to say "oloha" to the judges that are going to help us understand your situation and what your rights are. Otherwise we can proceed.
MR LARSEN: I am having a hard time hearing you. I am sorry, but the connection is bad. I would like to thank the Arbitral Tribunal for hearing this case about my civil rights being violated under Hawaiian Kingdom law and the Treaties of Friendship, Commerce and Navigation between our country, the Hawaiian Kingdom, and the United States. If you could clarify.
MS PARKS: Lance, would you like to listen in to the hearings as we proceed? Shall I just leave the phone here at the desk and allow you to listen to the proceedings.
MR LARSEN: Right now I can hear what you say. I will listen in and if you need me, shout.
MS PARKS: During the meeting that the Council had with the judges this morning, they were able to clarify for both of the parties that we will be focusing upon the jurisdictional issues raised by the judges in Procedural Orders Nos 3 and 4, specifically two jurisdictional issues were raised by the arbitrators. The first one was regarding the UNCITRAL Rules versus the Optional Rules as administering this case. The parties have very clearly set forth their views on those rules. Both of the parties agree that the Optional Rules are the applicable rules and we did amend those rules to the UNCITRAL Rules at the request of the Permanent Court of Arbitration International Bureau. Both parties have agreed that we are willing to reamend our pleadings to go back to the Optional Rules if the arbitrators think that that is more appropriate. Whatever decision the arbitrators feel is most appropriate in terms of the rules, I think that both of the parties - and here I am speaking for the claimant - are willing to go along with that decision.
MR LARSEN: That is correct.
MS PARKS: I will not spend any more time discussing the rules issue at this point since it seems to be very clear.
MR LARSEN: OK. I will be here listening in. I wish I could have been there, but I am over here in San Francisco and we will try to do our best to resolve this issue.
MS PARKS: Moving on to the second jurisdictional issue ...
THE PRESIDENT: Perhaps you could say to Mr Larsen that we have now moved to the stage where you are making the submissions on your behalf, so he is welcome to listen, but I think that the comments should be confined to you.
MS PARKS: Professor Crawford has just informed me that from here on I will be speaking as to the jurisdictional issues and, unless you have a point that you need clarified (and feel free to interrupt me) we will leave most of the verbal speaking to myself at this point.
MR LARSEN: That is fine. I agree with that.
MS PARKS: If you have any clarification that you would like to make, please feel free to interrupt me.
MR LARSEN: I will try not to interrupt you.
MS PARKS: I am going to spend the majority of today's hearings discussing the second jurisdictional issue that the judges have raised in their procedural orders. Primarily, there is a concern that the case cannot proceed without the United States present. They have provided myself with a copy of a relevant case, the case concerning East Timor and after providing a small amount of background information on the situation I will be distinguishing this case from that case and explaining why the Arbitral Tribunal does have the power to proceed in this case without the United States as a party. Before I provide the brief historical background information, I will give a cursory summary of what the real dispute is between the parties and how the United States is not required for this case to proceed. Lance Larsen filed this case as a subject of the Hawaiian Kingdom taking it for granted that his rights as a Hawaiian national are intact and that his country, while occupied, the sovereignty remains intact. At all times during the pleadings he has been operating assuming that as a matter of fact and law he is a Hawaiian national. The respondent in this case, the acting government of the Hawaiian Kingdom, has also at all times maintained as a matter of fact that the Hawaiian Kingdom is a sovereign nation, albeit an occupied sovereign nation. The status of the Hawaiian Kingdom as a sovereign nation has never been a dispute between the parties. It has been presented as historical fact to provide the Arbitral Tribunal and other interested people reading the case with the reasoning behind their assumptions and their factual assertions that they are operating in the context of the sovereign Hawaiian Kingdom. The United States has also agreed and in several legal documents acknowledged that it is an occupying force. While for political reasons it has not acted upon this fact of occupation, legally it has acknowledged this occupation. To restate the status of the Hawaiian Kingdom as a sovereign nation and the fact of the occupation of the Hawaiian Kingdom has never been in dispute between the parties. That is not an issue that the parties disagree upon.
THE PRESIDENT: Ms Parks, you say that the United States has acknowledged this. Can you take us to the documents where it has done so?
MS PARKS: Yes, I can. In the memorial that was filed by the claimant, Lance Paul Larsen, on 22nd May 2000 we have three specific documents issued by the United States Government that in sum acknowledge the occupation of the Hawaiian Islands. The first document is referred to in paragraph 34 of the memorial which I will briefly read. I am reading paragraph 34, which refers to annex 24. "This document in 1893 was written by President Grover Cleveland in which he recognises the illegality of the occupation of the Republic of Hawai'i and the United States of America coming into Hawai'i in 1893." If you look at page 452, I will begin reading what he has written. This is a message that the President of the United States did read to Congress, so this was being read by President Grover Cleveland to the United States Congress. President Cleveland is referring to the first attempt of the United States to annex the Hawaiian Islands and in this brief passage that I will read, as the Acting Commander in Chief of the United States military and the President of that nation, he acknowledges on the record that the first attempt to annex the Hawaiian Islands was unsuccessful. "Thus it appears that Hawai'i was taken possession of by the United States forces without the consent or wish of the Government of the Islands or of anybody else so far as shown except the United States Minister. "Therefore, the military occupation of Honolulu by the United States on the day mentioned was wholly without justification either as an occupation by consent or as an occupation necessitated by dangers threatening American life and property. It must be accounted for in some other way and on some other grounds and its real motive and purpose are neither obscure nor far to seek." Continuing on page 455, "The lawful government of Hawai'i was overthrown without the drawing of a sword or the firing of a shot by a process every step of which, it may safely be asserted, is directly traceable to and dependent for its success upon the agency of the United States acting for its diplomatic and naval representatives. "But for the landing of the United States forces upon false pretexts respecting the danger to life and property, the Committee would never have exposed themselves to the pains and penalties of treason by undertaking the subversion of the Queen's Government. "But for the presence of the United States forces in the immediate vicinity and in position to afford all needed protection and support, the Committee would not have proclaimed the provisional government from the steps of the government building. And finally, but for the lawless occupation of Honolulu under false pretexts by the United States forces, and but for Minister Stevens' recognition of the provisional government when the United States forces were its sole support and constituted its only military strength the Queen and her Government would never have yielded to the provisional government, even for a time and for the sole purpose of submitting the case to the enlightened justice of the United States." Halfway down the page, President Cleveland continues, "By an act of war committed with the participation of diplomatic representatives of the United States and without authority of Congress, the Government of a feeble but friendly and confiding people has been overthrown. A substantial wrong has thus been done which a due regard for a national character as well as the rights of the injured people requires we should endeavour to repair. The provisional government has not assumed a republican or other constitutional form but has remained a near executive council or oligarchy set up without the assent of the people. It has not sought to find a permanent basis of popular support and has given no evidence of an intention to do so. Indeed, the representatives of that Government assert that the people of Hawai'i are unfit for popular government and frankly avow that they can best be ruled by arbitrary or despotic power." In sum, if you have a chance to read the entire document that was submitted by President Grover Cleveland, he acknowledges as the President of the United States to the Congress of the United States, that the attempted annexation of Hawai'i in 1893 was invalid and illegal. As I quoted, he called it "an occupation under a lawless occupation under false pretences".
MR GRIFFITH: This document is taken from where? Is it from the US Senate record?
MS PARKS: Yes, it is.
MR GRIFFITH: At some stage, if it is not already in the documentation, perhaps you would be kind enough to give us the citation?
MS PARKS: Of course. The next document in which the United States acknowledges that it does not have sovereignty of the Hawaiian Islands is Annex No. 29. We are jumping a whole century ahead. This is 1988 and in the interim the United States has attempted on a second occasion to annex the Hawaiian Islands. Namely, in 1898 the United States Congress passed a joint resolution to acquire the Hawaiian Islands. The joint resolution is included in the Notice of Arbitration. It is common knowledge in American law that a joint resolution requires 50 per cent of Congress and is not sufficient to substitute for a treaty which requires two thirds vote of American Congress. This document acknowledges that fact. On page 321, the first indented paragraph reads, "The constitutionality of the annexation of Hawai'i by a simple legislative act was strenuously contested at the time both in Congress and by the press. The right to annex by treaty was not denied but it was denied that this might be done by a simple legislative act. Only by means of treaties, it was asserted, can the relations between states be governed, for a legislative act is necessarily without extra territorial force, confined in its operation to the territory of the state by whose legislator it is enacted. In this document the United States Department of Justice" - which on the first page acknowledges that this comes from the United States Department of Justice - "acknowledges that a joint resolution alone is insufficient to acquire another nation."
THE PRESIDENT: That is not quite right. The passage that you read was actually a quotation from Willoughby's Constitutional Law of the United States.
MS PARKS: That is right.
THE PRESIDENT: Which is quoted in the opinion which is at this annex.
MS PARKS: If we move to page 322, the Department of Justice is commenting on this. It says in the first paragraph: "We believe that the only clear Congressional power to acquire territory derives from the constitutional power of Congress to admit new states into the union. The admissibility of Texas is an example of the exercise of this power." If you read further, it shows that the Texan people were given a right to vote as to whether they wanted to become a part of the union. Other exhibits in the memorial show that both the sovereign of the Hawaiian Kingdom, Queen Lili'uokalani, and many of her subjects through the petition against annexation were not only deprived of a right to vote and acquiesce into becoming a part of the United States, in fact, they adamantly protested on the record and sent those protests to the United States State Department saying that they did not want to become part of the United States. If you refer to annex 21, this is the first of two protest letters that Queen Lili'uokalani filed with the United States State Department on behalf of her Government, the Hawaiian Kingdom, the People's Government. I will briefly quote: "I, Lili'uokalani, by the grace of God and under the constitution of the Hawaiian Kingdom Queen, do hereby solemnly protest against any and all acts done against myself and the constitutional government of the Hawaiian Kingdom by certain persons claiming to have established a provisional government of and for this Kingdom."
THE PRESIDENT: That was in 1893?
MS PARKS: It was before Cleveland's message to the Congress and, in fact, prompted his message to Congress.
THE PRESIDENT: But at the time of the joint resolution in 1898, what was the position?
MS PARKS: If we move on to annex 26, Queen Lili'uokalani again submits a protest to the United States States Department protesting against the second proposed Treaty of Annexation. As a result of her second protest, the second Treaty of Annexation was defeated in the Senate. That is what prompted the Congress to slip the joint resolution into another bill as a rider, because they were unable to gather the two thirds vote necessary to pass a Treaty. On two occasions it came before the United States Congress, in 1893 and in 1897, and on two occasions protests from the Queen were filed and the two thirds vote was unable to be procured. In addition, annex 27 is just a few pages of the petition against annexation. The Hawaiian Kingdom did submit the entire petition against annexation in their documents. If you read in the second column in English, it says: "We, the undersigned native Hawaiians, women, citizens and residents, who are members of the Women's Hawaiian Patriotic League of the Hawaiian Islands and other women who are in sympathy with the said League, earnestly protest against the annexation of the said Hawaiian Islands to the said United States of America in any form or shape." This document was signed by - it has been estimated - 90 per cent of the Hawaiian population at that time and was delivered to the State Department of the United States. I will defer to the Hawaiian Kingdom's submissions for further explanation of this document as they have the complete protests and also additional protest letters which were sent specifically from the different patriotic league that existed at that time in the Hawaiian Kingdom protesting against the annexation. The next document, annex 28, is a memorial that was submitted accompanying the signature petition that explains in fine detail that the memorialists are residents of the Hawaiian Islands, most of which are Aboriginal. They are possessing the qualifications to be voters under the constitution of the Hawaiian Kingdom and that they do not recognise the Republic of Hawai'i, that they do not recognise the United States of America and that they maintain fervently their protest against the consummation of this invasion of their political rights and earnestly appeal to the President, the Congress and the people to refrain from further participating in this wrong. That document, along with Queen Lili'uokalani's second protest letter, made it impossible for the United States Senates to get two thirds vote in order to pass a treaty. In 1898 they did pass a joint resolution which is 50 per cent of Congress. It is the claimant's position that this first document of 1988 coming out of the Office of Legal Counsel in its entirety validates that the Department of Justice acknowledges that you can only annex another nation by treaty, which is two thirds, or by having a vote as happened with Texas of the people. There is one more document to which I will refer you, which is the next exhibit, annex 30. This is another opinion coming out of the Department of Justice in 1996. In this opinion it states that it is unclear which constitutional power Congress exercised when it acquired Hawai'i by joint resolution. Again, we have the Department of Justice acknowledging that they cannot cite any constitutional authority for the annexation of the Hawaiian Islands. They go on to quote another constitutional scholar, as was similarly quoted in the first article, "The constitutionality of the annexation of Hawai'i by simple legislative act was strenuously contested at the time". In fact, they are making the same citation that was made in the first document.
THE PRESIDENT: The propositions that you have been talking about are essentially propositions of United States constitutional law - are they not?
MS PARKS: Yes.
THE PRESIDENT: What you are saying is that respected authorities doubt the constitutionality under the United States constitution of the acquisition of territory other than by treaty.
MS PARKS: Correct.
THE PRESIDENT: Is that the position under international law?
MS PARKS: Yes. Under the laws of occupation, it acknowledges that absent a valid transfer of sovereignty, which we are saying under constitutional law we can find no valid transfer of sovereignty, that the status of the United States is that of an occupying force and that the sovereignty of the Hawaiian Kingdom is not diminished by the occupation.
THE PRESIDENT: International law does not have the same rules of validity as constitutional law: for example, in the context of treaties. The relevant provision of the Vienna Convention on the Law of Treaties draws a distinction between the constitutionality of a treaty and its validity in international law.
MS PARKS: Absolutely. Under the Vienna Convention legislative, municipal and other internal actions taken by a government do not affect treaty obligations that that government holds.
THE PRESIDENT: The same thing might be true for annexation. It might be the case that under international law an annexation is valid even though there has been some constitutional defect.
MS PARKS: If we move further forward in the annexes, there are five treaties that the United States of America signed with the Hawaiian Kingdom through the various monarchs.
THE PRESIDENT: Yes, but that is not the point. Those treaties are pre-annexation. If the annexation was effective under international law, then those treaties would lapse because one of the parties would have disappeared.
MS PARKS: It is the claimant's position and has been from the beginning that there was no effective annexation, that because a joint resolution was passed and a treaty was not passed, the United States failed to make any proper annexation. It is neither a de facto government nor a de jure government. It continues to be in illegal occupation.
THE PRESIDENT: In any event, of course, we are starting to get into the merits. Although there is some licence for the purposes of these hearings to give us some of the background, I think that, perhaps, we should get back to the jurisdictional question.
PROF GREENWOOD: Might I ask a question that goes to jurisdiction, but is directly connected with what you are saying? Can you show us any document in the space of the last 20 or 30 years in which the United States cast doubt on whether Hawai'i is currently part of the United States as opposed to whether it was properly annexed in the 19th century?
MS PARKS: If we move to the Apology Bill, which was signed by President Clinton in 1993 (Annex 31), the President does acknowledge that the people of Hawai'i have never relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through plebiscite or referendum. I am reading this off 107, statute 1512. It is the fourth page.
THE PRESIDENT: What is the section you are reading?
MS PARKS: It is one of the "whereas's". About two thirds down the page and it has a star by it, "Whereas the indigenous people never directly relinquished their claims to the inherent sovereignty as a people or over their national lands to the United States either through their monarchy or through a plebiscite or referendum." Above that it says "Whereas the Newlands resolution affected the transaction between the Republic of Hawai'i and the United States Government". They are acknowledging that the United States signed some type of treaty with the Republic of Hawai'i, because, in fact, the joint resolution did talk about annexing the Republic of Hawai'i, but we have never found any lawful status under the Republic of Hawai'i. The Republic of Hawai'i had no lawful status to begin with. In this Bill it is acknowledged that there was never a transfer from the Hawaiian Kingdom to the United States. President Clinton is citing a transfer from the Republic of Hawai'i to the United States.
THE PRESIDENT: The preamble that you read refers to the indigenous Hawaiian people.
MS PARKS: Which is actually a misrepresentation, because "indigenous" would refer to groups of people that have not formed constitutional governments. There is some confusion in this Bill. Because the Hawaiians established a constitutional form of government, it is my understanding under international law that they would not currently be classified as indigenous and I would defer to the Hawaiian Kingdom's pleadings on that matter. They did address that quite specifically, I think, in their counter-memorial the distinction between "indigenous people" and "people who have established a constitutional form of government".
THE PRESIDENT: The law that you have cited, 107 Statutes 1512, goes on to say in the recital second following the one that you have read, "Whereas on August 21, 1959 Hawai'i became the Fiftieth State of the United States". So, clearly, it was the view of Congress enacting this law that, notwithstanding the deficiencies of the 1890s, Hawai'i had, in fact, been incorporated within and subsequently became a state of the United States.
MS PARKS: I have two comments. First, I would refer to Merrick Treatise on the laws of occupation which I did cite in my reply in which she says that it is common for occupying forces to refuse to outright acknowledge that they are, in fact, occupying, that they would prefer to put it out to the public that they have properly annexed the country that they are occupying. I can pull out that citation if that is beneficial, but it is the claimant's position that the United States has legally acknowledged that it has not properly acquired the sovereignty of the Hawaiian Kingdom but for political reasons has not acted upon that. To try to bring us back to what we are addressing, which is the jurisdictional issue, I think that both parties agree on this point that there has never been a lawful acquisition of the Hawaiian Islands by the United States of America and, since that is not a dispute between the two parties, in our opinion it is unnecessary for the judges to make a ruling as to whether that is, in fact, true or not. We are simply trying to understand the relationship between a national and a government during occupation and we take it for granted the occupation as a matter of fact and law.
THE PRESIDENT: That really gets to the nub of the point, does it not?
MS PARKS: Yes.
THE PRESIDENT: This is a tribunal sitting under the auspices of the Permanent Court of Arbitration, though exercising jurisdiction pursuant to the UNCITRAL Rules and to the agreement between the parties. Nonetheless, the law that we are directed to apply is international law.
MS PARKS: The laws of occupation.
THE PRESIDENT: Well, the laws of occupation are part of international law.
MS PARKS: Right.
THE PRESIDENT: The problem, as put in the procedural orders, is that there is or appears to be a rule of international law that the Tribunal cannot exercise jurisdiction even on the basis of an agreement between the two parties, if that agreement affects the rights of a third party and a decision on the rights of a third party is a necessary preliminary to what the Tribunal is asked to decide. That is the difficulty we face. Obviously, we have not made up our mind about this, I want to stress that, but the point of the hearing is to address that point.
MS PARKS: My response to that would be that the United States has no rights in this situation because of the fact that they are an occupying force. Both of the parties have the position that as a matter of fact and law America is illegally occupying the Hawaiian Kingdom. As an illegal occupier, it has no rights other than those treaty rights with the Hawaiian Kingdom. The sovereignty of the Hawaiian Kingdom remains intact and the two legal orders co-exist. The United States does have obligations towards the Hawaiian Kingdom as administering an occupied territory, but we would not agree that the United States has any rights to be affected at all because we are taking it as a matter of fact and law that they are an occupying force.
THE PRESIDENT: The problem is that an arbitral Tribunal is not simply a delegate of the parties. Obviously, the parties can reach whatever agreement between them they may wish to reach. That would have whatever effect it has in a court under the applicable law. The arbitral tribunal is in a sense a third party, which is called upon to act under a particular system of law and which agrees to act, as the Permanent Court agreed to act, on that footing. If that system of law contains a stipulation that whatever the parties say, certain decisions cannot be made if they affect the rights of third parties, the problem is how are we to avoid that? There might be various ways in which we could do that. One is to say that there is no such rule except, for example, in the context of the International Court. That there is such a rule in the context of the International Court the court has three times decided, most recently in the East Timor case. You might say that that rule only applies to International Court proceedings and does not apply to proceedings which are in some sense mixed proceedings or which involve private parties or at least one private party. If, however, the rule does apply to international arbitration more generally - that is to say it is not just limited to International Court proceedings - then you would have to try to say that this case is different from the East Timor case in some respect.
MS PARKS: I would argue that it is different. Specifically, if you look at the two parties in the East Timor case, they disagreed as to the territorial, who had proper territorial dominion over East Timor. Australia recognised the de facto government of Indonesia, whereas Portugal did not. That is substantially different from the case here where both parties agree that the Hawaiian Kingdom maintains sovereignty as that the United States does not have sovereignty of the Hawaiian Islands and does, in fact, occupy. In the East Timor case there was a dispute as to who had the proper jurisdiction over the territory in question, whereas in this case there is no dispute over who has the proper jurisdiction over the territory in question. I think that a distinction can be made because of the fact that Lance Larsen and the Hawaiian Kingdom agree upon the legal status of the Hawaiian Kingdom.
THE PRESIDENT: There have been cases in which the International Court has taken jurisdictional objections or considered jurisdictional objections even though they were not raised by the parties. There are also, of course, a number of cases in international arbitration where that has happened. Let us assume that the position under international law is that the International Court and any other international arbitral tribunal has no jurisdiction over a dispute which affects the rights of a third party in the East Timor sense, if I can use shorthand. If that is right, it would follow that the original parties could not remedy that defect because it is not their consent which is lacking. Obviously, if the parties here had not consented, then the Tribunal would not even have initial jurisdiction. But the East Timor case says that even though there is jurisdiction between the parties, whether by special agreement or by reason of their acceptance of some treaty, such as the Optional Clause arrangements in the International Court, notwithstanding that agreement, nonetheless, if the rights of a third party are involved in the relevant sense and that third party does not consent and is not present, the Tribunal lacks jurisdiction. If that is right, then it is the consent of the third party that is missing, not the consent of the parties before the Tribunal. I am simply trying to explain the problem that we have. It is not the position of the tribunal at this stage. It is simply that we cannot in conscience proceed as an international tribunal without raising this issue and without resolving it.
MS PARKS: Absolutely. I would reiterate that we are not asking the Tribunal to rule on the lawfulness of the United States conduct. We are not asking the Tribunal to set forth whether or not the Hawaiian Kingdom is occupied. We have never asked those questions of the Tribunal. What we are trying to clarify is the relationship between a national and his government. If it is possible for the Tribunal to rule on the relationship between a national and his government without acknowledging or disacknowledging the occupation, then we can move forward. That is what we would prefer to do, to have the Tribunal explain to the claimant, Mr Larsen, what are the parameters of his relationship with his government and what the responsibilities of his government with respect to the claimant are. Again, we are not expecting the arbitral tribunal to make any ruling which would affect the United States because we know that you do not have the power to do that. Again, we are taking it as a legal fact that the sovereignty of the Hawaiian Kingdom remains intact. If it is impossible for the Tribunal to take that as a legal fact, then perhaps fact finding or some other proceeding would be more appropriate.
THE PRESIDENT: We will come back to the question of fact finding, perhaps, later on, but let us look for the moment at the jurisdictional question. The problem is that not only is there the difficulty represented by the position of the third party, but there is also the difficulty represented by the idea that, if the Tribunal were to proceed on a certain assumption, its decision would be hypothetical. If I can give you an example, in the Northern Cameroons case in the International Court in 1963 the International Court was asked to rule on the legality of the administration by Britain of the Northern Cameroons Trust territory before its decolonisation. What happened was that there was a plebiscite in the Northern Cameroons and it opted to join Nigeria. Cameroon argued that, because of the way in which it had been administered, that plebiscite had been affected and the administration of the Northern Cameroons having been unlawful was a matter in dispute between it and the United Kingdom. The court said that there may be such a dispute, but after decolonisation, after Northern Cameroons has become part of Nigeria, the question of the legality of what went before no longer arises as an actual legal question, because nothing turns on it. It is not that it was not a legal question at the time. It is not that it was not a question on which you could have different views, as clearly there were serious legal questions about what happened in the 1890s in relation to Hawai'i. What the court said in Northern Cameroons was that, if there is no connection between those legal disputes and an actual question that arises now between two parties, then the court cannot decide, because it is not the function of an international tribunal to make abstract rulings. Its function is to make decisions on issues which affect the legal rights of the parties at the time the decision is made. On the one hand, you have the problem of the rights of the third party. If you try to avoid that problem by stipulating that the third party has no right or that the underlying situation is unlawful and is such to be incapable of giving rights to the third party, then you have an abstract decision. The question is whether there is any room between those two propositions which are propositions of international law by which this Tribunal can act.
MS PARKS: I can respect all of the concerns that the arbitral Tribunal is raising and would restate that Mr Larsen decided to proceed with this case because in his pleadings and in his mind there is no dispute as to the legal status of his nationality. He did not ask the Tribunal to validate his nationality because he takes it as a matter of fact and law (and lives it) that his nationality remains. We can respect the fact that the arbitral Tribunal may feel, if it on any level acknowledges the nationality of the claimant, that somehow it may be acknowledging that the United States is occupying the Hawaiian Kingdom. That is a very real concern on a political and a legal level, but the claimant has had such confidence in his nationality that he did not let the possibility of an occupation ... Let me rephrase that. The occupation is such a matter of fact in his mind that it is unnecessary in his opinion for the Tribunal to validate the occupation or not, because it stands as a matter of fact and law and has been acknowledged by the United States in these different documents. For political reasons the United States has not done anything about it. Merrick speaks about that in her treatise as to why occupying nations do not usually acknowledge their status as an occupant. Again, Lance does not expect the Tribunal to make any ruling that it does not have jurisdiction to make, but he simply has every confidence in his position and I think the fact that the Hawaiian Kingdom also has every confidence in their position has allowed us to move forward, because the occupation is a matter of fact and law in both of the pleadings of both of the parties. I can respect the points that you are raising in terms of, if you address the relationship between Lance as a Hawaiian national and the Council of Regency as the acting government of the Hawaiian Kingdom, that somehow you have inherently acknowledged the occupation of the Hawaiian Kingdom by the United States and that is a very real concern that you have. Perhaps, if that is insurmountable, we should switch the discussion to fact finding rather than arbitration, because that is the context under which Lance filed this case, not expecting the Tribunal to say, "Yes, the Hawaiian Kingdom is occupied" or "No, it is not". In his opinion it is a matter of fact and law that stands on its own and needs no validation from an international tribunal because the facts speak for themselves. But, because of the political reality that the United States has avoided acknowledging this publicly and has only published this in legal counsel opinions and is kind of putting pieces of the puzzle together in their different documents acknowledging the occupation, they have never come out and said, "Yes, we are an occupying force", we can respect that the Tribunal has concerns that acknowledging the nationality of my client and the status of the Council of Regency may appear to be making a ruling on that decision. Again, Lance filed this knowing in his mind that that is a matter of fact and not an issue of dispute between the parties.
PROF GREENWOOD: Ms Parks, I can see all that and, in particular, I can see the point about the nationality of your client, but, in effect, you are asking us to proceed on the basis of an assumption that the United States presence in Hawai'i is illegal and that your complaint against the Kingdom stems from that fact. If the United States presence in Hawai'i is not illegal, if Hawai'i is part of the United States, then, surely, your claim falls away, does it not?
MS PARKS: Again, the claimant filed this case under the conviction that it is an established legal fact that the occupation does exist. Again, we can respect your concerns not wanting to acknowledge that fact on the side or in consequence of your acknowledging the nationality of my client, but, again, his conviction in who he is is strong enough that he was willing to proceed with this case and deal with these issues here and possibly consider what other avenues may be possible for this to proceed.
THE PRESIDENT: One of the functions of international tribunals - in fact, the function of international tribunals - is to decide disputes on the basis of law. There are two aspects to that. There has to be a dispute between the parties. That means in the light of the Northern Cameroons case not a disagreement in some abstract sense, such as about the decline and fall of the Roman Empire. We could have a disagreement about it, but it could not be as such a legal disagreement because it could not affect the way in which we are to behave. The only question that an international tribunal can decide is a question which goes to how the parties are to behave, otherwise there is no dispute. In the Northern Cameroons case, because there could not be any link between the question of the legality of the administration of the territory and the parties as they were before the court, there was no dispute. Let us analyse a bit what the dispute is between the parties to this case. How would you describe that dispute?
MS PARKS: I would describe the dispute as differences in opinion as to the extent of the responsibility of the Council of Regency in protecting my client, Lance Larsen. The Council of Regency is of the view that the steps that it has taken to preserve the status of Hawaiian nationals are sufficient and exhaustive of its responsibility to my client. My client, on the other hand, would argue that as long as his rights continue to be violated, the Council of Regency with all due respect has not fulfilled its job. As a neutral nation, the Government of the Hawaiian Kingdom has a responsibility to protect the nationality of its subjects. As long as the nationality of my client is being denied, the Council of Regency has not fulfilled its job. He is not disagreeing that they have taken extensive measures and perhaps done their best, but the price of international responsibility is liability. The fact that they have taken on the responsibility of resurrecting a sovereign nation means that they have assumed the responsibility of protecting the nationals of that nation. The question would be more the extent of liability and whether the different actions that they have taken constitute effective steps in terms of their responsibility towards Hawaiian nationals.
THE PRESIDENT: In that remark you used the phrase "as long as his rights continue to be violated" - I think a literal quotation. You are not saying that his rights are in the first instance violated by the respondent?
MS PARKS: They are violating his rights by not protecting his nationality.
THE PRESIDENT: Well, there were two different formulations. You said, "as long as his rights continue to be violated" and "as long as his nationality is being denied". Let us proceed on the basis of the first and we will come to the second to see if it is any different. In effect, the complaint about the respondent, that they are not preventing his rights being violated, is parasitic - I am sorry, I do not want to use the word "parasitic" in a pejorative sense. What I mean is dependent - is contingent upon the prior proposition that his rights are being denied by a third party. In other words, it is the failure of the respondent to protect him against the third party which is the problem.
MS PARKS: Yes.
THE PRESIDENT: But, in order for the Tribunal to make a non-hypothetical decision on that question, we would have to decide that his rights were being violated by a third party. You could, perhaps, stipulate that, but the problem that you face in the context of East Timor is that a stipulation cannot give an international tribunal jurisdiction if its decision would implicate the rights of a third party. It may be that an international tribunal could have jurisdiction as between the parties in respect of their own rights exclusively on the basis of the stipulation. That is a question. But, if the decision necessarily affects a third party, no stipulation can give it jurisdiction because it is not within the party's competence in the first place. I am trying to articulate the argument. I am not expressing a point of view.
MS PARKS: Of course.
MR GRIFFITH: When you say that Mr Larsen's rights are being violated, are you in substance saying that they will be violated until the respondent expels the occupying power?
MS PARKS: Absolutely.
MR GRIFFITH: In essence, you want a declaration that their obligation goes that far?
MS PARKS: Yes, that would be the claimant's position, that until his nationality is preserved completely, his government is not fulfilling its duty. In the Hawaiian Kingdom constitution and in the treaties that the Hawaiian Kingdom signed with the United States, it acknowledges its responsibility to protect the nationality of its subjects distinct from the nationality of other nations.
MR GRIFFITH: Do you also say that a declaration by us that that was the extent of the respondent's obligation in no way affects the United States as the occupying power.
MS PARKS: I would not say "in no way affects", but, again, I would refer to the fact that the claimant has filed this case assuming that the occupation is a matter of fact. He understands if the Tribunal has a problem acknowledging that that is a matter of fact, but it was his position, and has been from the beginning, that the existence and the lawfulness of his nationality is not a question, it is a fact of international law.
THE PRESIDENT: There is a problem with that. I can understand entirely how someone's allegiance, affection and sense of connection to a place or to a historical or cultural tradition is a fact. Other people simply have to accept that - it is there. You are who you are.
MS PARKS: Exactly.
THE PRESIDENT: But you are talking now about a proposition of international law. You are asking the Tribunal to decide under international law about concepts such as nationality, occupation and so on and they are not just subjective questions, they are not just questions of an individual person's attitude. It is accepted that the attitude is perfectly genuine and serious and valid from that point of view, but the problem is that the Tribunal cannot make decisions, as it were, inside a person's mind. The Tribunal makes decisions in relation to the legal system of which the Tribunal is part. The difficulty that we have is that these propositions are not just from the perspective of that legal system, these propositions are not just propositions of fact, they are propositions of mixed fact and law. They depend upon certain historical events and then on the application of the rules in force at the time - another concern of course - to those events. That is a legal process and you ask the Tribunal to perform it. The Tribunal can only perform it in accordance with the rules that that legal system lays down for the performing of those functions, which is why we are having this hearing.
MS PARKS: Of course. Again, I would refer to the fact that it was the claimant's position that the legal status of the Hawaiian Kingdom is such a blatant matter of fact and law, given the United States documents acknowledging the illegality of the method of annexation and given all of the historic documents that were submitted to the Tribunal, that it was his position that it was not an issue in dispute and - I may be taking some liberties when I say this - but given the Tribunal's expertise on occupations that, perhaps, it would be obvious on the face of the documents what the situation is. We can respect that there may be legal or political hurdles to this Tribunal being able to acknowledge the status of the Hawaiian Kingdom, but again it was the claimant's position and has been that that is a matter of international fact and international law, so, if there is some disagreement between the claimant and the arbitral Tribunal as to whether that can be taken as a matter of fact without affecting the rights of the third party, then I think that it would be appropriate to consider fact finding instead, because in no way will the claimant compromise his belief that those facts and laws are self-evident and, unquestionably, given the different United States documents acknowledging the history and given the blatant facts as submitted between 1893 and 1898, it has been our position that there is no possible way to see where a lawful annexation ever occurred and the United States has never been able to offer proof up to that. To many people the occupation is simply a matter of fact and law and is not a dispute and is not something that needs to be validated or decided by a tribunal. Of course, we can respect the fact that the arbitral tribunal may disagree with that view point, but, again, that is the view point under which this case was filed.
MR GRIFFITH: Ms Parks, you are not contending that the United States now accepts that it is an occupying power and that Hawai'i is not a state of the United States?
MS PARKS: It is our position that, given the four different documents that came out of the United States Department of Justice and from the Congress, that those documents taken together do acknowledge the occupation and, for political reasons that Merrick explains in her treatise, they have not acted to acknowledge on a real level the occupation, but that those documents taken together do validate the occupation as a matter of fact and international law. We have the United States acknowledging that only a treaty can annex another country, acknowledging that the joint resolution was signed with the Republic of Hawai'i, not the Hawaiian Kingdom, acknowledging that the native Hawaiians never acknowledged to any annexation, that those documents alone as domestic documents looked at in an international perspective provide a solid foundation under which he is putting forth that the occupation is a matter of fact and law. Without those United States documents, I think his argument would be much more strenuous and much harder for him to make in terms of America acknowledging on some level that it is an occupying force, but I think that those four documents taken together as a whole and viewed in conjunction with the two proposed treaties of annexation that are in the Hawaiian Kingdom exhibits and the joint resolution which is in the Hawaiian Kingdom exhibits. I would also call attention to the Congressional record which accompanied the joint resolution which is included in the Hawaiian Kingdom's reply - we may want to refer to this document because it does validate these other four documents to which I am referring - in which the Senators are saying, "Well, we are not going to get title. We have got to set up title companies", making offhanded remarks during the debate that led to the joint resolution acknowledging that this Act would not have the power to do what they were saying they were trying to do. You have the Senators who actually passed the joint resolution in 1898 acknowledging in debate before the Bill was passed that this would not be proper to annex the Hawaiian Kingdom.
MR GRIFFITH: Can we just test that? Were it the case that Hawai'i was not a state of the United States and were that authoritatively to be determined one way or another, could that fact of authority determination, for example, possibly affect even the election of the President of the United States?
MS PARKS: Absolutely. Many of us think that these different factual happenings are not unrelated.
MR GRIFFITH: But, when you say "yes" to that question, does that mean that our consideration of this issue does involve considerations that do concern the United States?
MS PARKS: Of course it does. We were, quite frankly, very pleased that we have even gotten this far, given the reception that we have had to these arguments back in Hawai'i when speaking with American judges sitting in both state and federal court. They are usually laughing in our faces. The respect that we have already received from this arbitral Tribunal and from the Permanent Court of Arbitration has been wonderful for us and we believe that we are arguing for a truth that no fact can cast any doubt on. Lance has been operating under the conviction since he realised who he was ten years ago and it is that conviction and that confidence that brings us here today, even though most people around us do not wish to recognise that fact.
THE PRESIDENT: The problem is that you cannot have it both ways, with respect. It is an observation, but you cannot say, on the one hand, that you hold certain things to be completely unchallengeable and, on the other hand, submit them to the jurisdiction of a tribunal which can only decide one way. It has to be open to an international tribunal to decide the case either way as between the parties on any available legal ground so far as that system is concerned. The decision might be one which actually subverted that belief. This is why these rules exist. It is not open to the parties, as it were, to stipulate a proposition affecting the rights of a third party on the basis of which an international tribunal will act. A tribunal has to have jurisdiction to go to the root of the matter - the underlying legal proposition - because otherwise its decision could have no authority. And jurisdiction is about authority. It is not just a purely technical question. It is about the authority to speak with the force of res judicata.
PROF GREENWOOD: You are being fired at from all sides, Ms Parks. Let me try to move things along a little bit by inviting you to explore the comparison with the East Timor case in more detail. As I understand it, in East Timor part of the argument advanced by Portugal was strikingly similar to what you have just said to the Tribunal. Portugal was saying, in effect, that you do not have to rule on whether Indonesia acted illegally in entering East Timor in 1975. You can take that for granted, because there are various documents - in this case emanating from the Security Council of the United Nations and the United Nations General Assembly - which make that matter self-evident. You can treat it as a given. Yet the court said "We simply cannot do that. We cannot proceed to determine whether Australia is acting legally in its dealings with Indonesia by taking for granted the illegality of the Indonesian annexation of East Timor". If we cannot take that for granted, then we cannot decide the case. I think that that is the problem that you have to get around. We would be very willing to receive submissions from you on any way in which you see East Timor as distinguishable, but it is not a problem which can simply be brushed aside. It is there, I am afraid, for the Tribunal, because it is a central part of the system of law that governs our operation.
MS PARKS: Again, I would distinguish the East Timor case from this case in that Portugal and Australia, which are the two parties to the East Timor case, had differing opinions as to the status of the Government of Indonesia. Australia recognised it as a de facto government, whereas Portugal was challenging that.
THE PRESIDENT: It recognised it as a de jure government, that was the problem and not just a de facto government. One of the grounds of distinction that you have already raised, and we have discussed this at some length, is the point about what I call stipulation; that is where the parties stipulate the proposition - agree upon it and stipulate it for the Tribunal - that avoids the Monetary Gold proposition, as we call it, because Monetary Gold was the first of this line of decisions about the rights of third parties. We have already examined that and the difficulty with it is that, if the objection goes to the jurisdiction of the Tribunal and affects the rights of the third party, then a stipulation cannot make a difference. The second ground that you gave, which was just being discussed with Professor Greenwood, is what Portugal in that case called "the given ground"; that is, you look at the legal instruments. You can take it as given that the proposition in question is true and Portugal referred to the Security Council and General Assembly resolutions and said that you can act on these. The court said, "No, we cannot, because we cannot draw conclusions from those resolutions in the absence of Indonesia, because to do so now would involve making legal determinations based upon them". That is the problem. You are really still asking us to draw legal conclusions from the documents that you have cited including the Act of Congress, as it were, the Apologetic Act. You are asking us to draw legal conclusions from them which are not accepted by the state concerned or at least which may not be accepted by the third state concerned and that still creates a problem. We will come back to that point in a moment. Just to complete the catalogue, a third basis for distinguishing Monetary Gold might be that the proposition in question had been authoritatively decided by someone. That is different, because Portugal did not really say that it had been authoritatively decided, because it could not. The General Assembly did not have the power to authoritatively decide. But let us assume that there had been a Security Council resolution under Chapter 7 of the United Nations Charter involving the status of East Timor, calling on states not to recognise and obliging them not to do so. It is very probable that the decision of the court would have been different in that case. In other words, the court would not refuse to apply an authoritative Security Council decision binding on the parties not to recognise, because that would have, as it were, disposed of the rights of the third party. You might be able to argue that there is present somewhere an authoritative decision to that effect, not just a document from which you can draw a conclusion, but a document that contains the conclusion. I suppose that the fourth ground on which you might distinguish the Monetary Gold line and the East Timor case - and you have also referred to that - is that, although it has not been authoritatively decided, it is so obvious that it is the case. It is blindingly obvious. You have used the word "blatant". I suppose that you might say, "Well, this only applies where there is some controversy and not where it is blatant". We have on that basis four different arguments and for the purposes of discussion it may be useful to distinguish. There is the stipulation argument. That is where the parties agree. There is the given argument. That is where you have documents from which it is safe to draw a particular conclusion. Portugal made that argument and it failed. There is the authoritative argument where a body with authority has decided the point and there is the blatancy argument. That is where the point is so clear, it is so obvious that it is safe even in the absence of a third party to draw the conclusion. Just for the purposes of our discussion of the point, I think that it would be useful to draw those distinctions, because we do not want to confuse one and the other. I think that it may be that some are valid and some are not.
MS PARKS: They are very valuable distinctions.
PROF GREENWOOD: Can I add a fifth point, which is in a rather different category from those four upon which we have also touched? We would, of course, be very willing to hear your submissions, if you wish to make any, to the effect that the East Timor principle is peculiar to the International Court of Justice and would not be applicable to another international tribunal. I am not suggesting that the answer to that question is either yes or no. I merely put it down as something, if you like, on the agenda which you may wish to address us on.
MS PARKS: I guess that I will begin by addressing the four distinctions that Professor Crawford has set forth. Under the stipulation argument, I think that it is clear that both parties would stipulate as to the nationality of my client, but I think that the problem of a hypothetical ruling makes the stipulation argument a weak one on which to rely in this case. As Professor Crawford has already mentioned, even if the stipulation is agreed upon, to make a hypothetical ruling on an agreed-upon stipulation does not really make any new grounds for anyone involved, so, while I think that both parties would agree that this stipulation exists, I would not base my case solely on that, because of the problem of the hypothetical ruling. The second ground, the "given ground", that, because there are documents that are so straightforward that it is safe to make a conclusion about the nationality of my client, I think is definitely applicable. Why we have included these American documents in our pleadings is so the Tribunal can see why my client is so confident of his nationality. To clarify, my client has received most of this information from the Council of Regency so that his education as to who he is is a part of the relationship that is the subject of this controversy, that these documents have been uncovered primarily by the Council of Regency and have been of great use to all Hawaiian nationals trying to understand who they are, given 100 years of confusion on the issue. We would argue that the documents that we have set forth, because they come twice from United States President, from the United States Congress and from the Department of Justice, that, taken as a whole, make it given that the occupation continues to exist, even if for political reasons the United States has refused to operate on that acknowledgement. On the third argument, authoritative, we have not yet had an international tribunal issue an authoritative ruling on this issue. Of course that is what we are here gaining your opinion to perhaps guide us in the right direction to find that type of ruling. If arbitration does not proceed on the merits perhaps that would be a more appropriate step for the parties to take, to approach either the ICJ or the Security Council and try to receive a ruling from them as an authoritative international body validating what it is that we are saying. So already we have gained a lot from your knowledge, the three of you, in that that is now an option that maybe we had not considered before that we now know is available to us. So thank you already for pointing that out to us. But unfortunately we do not have that yet to rely upon in this case.
THE PRESIDENT: That is very candid, Ms Parks. I did not want you to think that we were suggesting that you should approach either of those two bodies. I was talking in general terms about what the exceptions to the Monetary Gold principle might be.
MS PARKS: Unfortunately we do not qualify under that exception since we have not yet received that. No. 4, the blatant argument that it is so clear that it is safe to draw conclusions, is perhaps our strongest ground, and the grounds under which Lance has been operating for the last ten or so years that he has been attempting to assert his nationality. That is why he has been willing to go to prison and to be detained for his beliefs; it is so clear to him after learning the facts who he is; it is so blatant given the American documents that he has been able to read that he has no other conclusion to draw other than he is an Hawaiian national. He is not an American citizen and he must understand what that means specifically within the context of his relationship with his government, but more generally just for his own knowledge. So to summarise under 4, exceptions, we would not be relying on the first and the third grounds but instead would be relying on the second and the fourth grounds, specifically that because the documents are so straightforward it is a given and safe conclusion to make, and the blatant argument, which really seem to be two ways of saying the same thing, but if it gives us two grounds then we will take both of them.
THE PRESIDENT: It is an interesting question as to whether they are the same thing. In the East Timor case it was really pretty obvious that Indonesia's control over the territory resulted from the use of force, was it not?
MS PARKS: Yes.
THE PRESIDENT: So if there had been a blatancy exception you would have thought that this was a case in which it should have been applied, and yet it was not really applied.
MS PARKS: I think a distinction to be made though is that although I have not read through all the pleadings I do not think that documents coming from Indonesia itself acknowledging its status as an occupant were presented as evidence. I think that absent the documents we have presented from the United States Congress and the President acknowledging the illegality of the annexation that we would be in the same situation as the parties in the Indonesia case. Please correct me if I am wrong, but I did not see any evidence of any documents coming from the Indonesian Government itself acknowledging the questionability of its own status. I think those documents may perhaps help us to distinguish this case from that case.
THE PRESIDENT: That is correct, certainly at the time of the decision in East Timor there was no statement from Indonesia which bore any resemblance for example to the legislation of 1998, however that may be construed.
MS PARKS: Professor Griffith also mentioned a fifth exception in which the principles set forth in the East Timor case might apply only to the International Court of Justice and perhaps not to other international tribunals, and of course we would like to agree with that argument. It would probably be wise for me to take the lunch break to do a little bit more reading of these cases and follow up with a more substantial rebuttal, but just to give you an indication of our direction we will be agreeing with that exception and formulating an argument to back that up.
THE PRESIDENT: Thank you very much both for the candour and clarity of your arguments, we appreciate that. Can I suggest that we now adjourn until 3 o'clock to give you the opportunity to think about some of the questions we have been discussing and of course we appreciate entirely that we are discussing them with counsel for the claimant and it will be a matter for the respondent tomorrow to take its own position on these questions and these are adversarial proceedings by definition and you are not bound to take any position that the claimant make take on them. This afternoon in addition just to give you, Ms Parks, some idea of the concerns we have, there is a significant question for the tribunal as to whether it is empowered to accept the request which I understand both parties make, which is contained in paragraph 128 of the Respondent's Reply, which says that if the arbitral tribunal was to come to the conclusion that it had no jurisdiction or that the dispute was inadmissible on Monetary Gold grounds, on the grounds that it involves the rights of a third party, that alternatively the tribunal should reconstitute itself as a fact finding commission pursuant to the optional rules for fact finding. There are a number of questions associated with that and we would like you to address them this afternoon, and that will enable the respondent to address them tomorrow. One question is whether there is any implied limitation to the application of the Permanent Court of Arbitration optional rules for fact finding relating to the question whether the dispute has to be of an international character, or whether the parties to the dispute or at least one of them has to be a State and/or a state party to one or other of the Hague Conventions of 1899 or 1997. In other words is there a comparable jurisdictional problem unfortunately even for fact finding? It is an entirely open question what the position is. The second question is on the assumption that the limitations which apply to international arbitral tribunals which we have been discussing do not apply to fact finding commissions, what precisely in your view are the facts which it would be necessary to find? Clearly there is a distinction for the purposes of these rules between facts and law. Arbitral tribunals decide questions of law, commissions decide questions of fact - for example whether there was a Japanese submarine in the North Sea when the Russian fleet fired at the fishing trawlers in the Dogger Bank incident. That is a question of fact. What are the questions of fact in this case that are in dispute between the parties that you would want a commission of inquiry to decide, because they have to be disputed questions of fact. What are the disputed questions of fact that this commission would decide if it has jurisdiction. So there are two questions. One is are there any jurisdiction limitations to the application of the PCA optional rules for fact finding, and (2) if the answer is "no", or alternatively that they do not apply in this case, what are the facts in dispute between the parties which, as distinct from propositions of law, what are the propositions of fact which the Tribunal would decide. I ask exactly the same question to the respondent to address tomorrow. It may well be that at the end of the proceedings tomorrow the Tribunal will still have questions of this character; at which point we would propose to write them down so that you have them in exact language for consideration in the reply for us next week. On that basis we will adjourn till 3.
(Adjourned for two hours)
MS PARKS: First I would like to thank you for the discussion this morning. I found it very valuable and quite a challenging exercise for myself, so thank you. At the conclusion of this morning's session, the arbitral Tribunal clarified that they would like to hear more about the point that Professor Greenwood raised about the possibility of the Permanent Court of Arbitrating having an exception to the concerns that were raised in the context of the International Court of Justice in the case of East Timor. In addition, I was asked to discuss the question of fact finding, what are the questions to be found in terms of fact finding. I apologise that my prepared response is not going to follow that line of questioning exactly, but I will reach both of those questions in the duration of my response. I have prepared my response in five separate sections. I will give you a brief overview and then I will go through each. I want to go back and review the four exceptions that were laid out by Professor Crawford, the given exception, the blatant exception, the authoritative body and the stipulation exception and clarify myself on what I had said earlier about that.
THE PRESIDENT: Can I just intervene to make a point? First of all, because we are developing argument, you are not bound by any apparent concessions that you might have made in earlier discussions. We understand that you may need to take instructions and you may need to think more. You have been very open with us and the quid pro quo is that, if you develop your ideas further, that is fine. We will at the end of the proceeding give you the opportunity to put down in writing precisely what your submissions are and that will be the final word, as it were. The second point that I wanted to make was that I did not suggest that all of those four or, indeed, any of them were actual exceptions. I simply said that they were candidates.
MS PARKS: Of course.
THE PRESIDENT: The Tribunal will look at them in due course and consider whether in its opinion any or all of them are exceptions and whether any or all of them may apply here, but those are opening questions.
MS PARKS: I appreciate that. I am then going to address specifically the concerns about the United States as a third party again. The third point that I will raise has to do with Mr Larsen's attempts to exhaust all of his remedies to get to this point. I will then move on to clarify the difference between the ICJ and the PCA as Professor Greenwood asked me to do. Then I will finish with fact finding as Professor Crawford asked me to do. Going back to the four possible exceptions to the rules set forth in the case concerning East Timor, I had said earlier that the claimant's position was that this Tribunal should take the fact of the occupancy of the Hawaiian Kingdom as a matter of fact, because it is safe to conclude it from the documents that we have presented and because it is so clear, so blatant, that they have no option than to draw that conclusion. I had said earlier that there was no authoritative body of law that had ruled on the sovereignty of the Hawaiian Kingdom and now I would like to correct that statement. I would first refer to the Declaration of Great Britain and France relative to the independence of the Sandwich Islands, London, November 28th, 1843. Here we have Her Majesty the Queen of the United Kingdom of Great Britain and Ireland and the French Government taking into consideration the existence in the Sandwich Islands of a government capable of providing for the regularity of its relations with foreign nations. This document is annex 12 in the claimant's memorial and in our view this is the first authoritative body acknowledging the sovereignty of the Hawaiian Kingdom. Moving on from there, annexes 13, 14, 15, 16 and 17 would be the next authoritative body acknowledging the sovereignty of the Hawaiian Kingdom, all five of these being treaties that the United States did sign with the Hawaiian Kingdom. In addition, I would cite the treaties that were contained in the class action law suit which Lance filed back in 1999 and the complete content of that law suit is part of the Hawaiian Kingdom exhibits. In that law suit, Lance did name all of the nations with which the Hawaiian Kingdom has treaties: United Nations, France, Denmark, Sweden, Norway, United Kingdom, Belgium, Netherlands, Italy, Spain, Switzerland, Russia, Japan, Germany, Portugal and Samoa. Here we have a collective body of nations acknowledging the sovereignty of the Hawaiian Kingdom. I would re-clarify that there have been many authoritative bodies, perhaps not the United Nations or some more modern international body, but all of these different nations, including Great Britain and France, have acknowledged that the Hawaiian Kingdom is a member of the family of nations and went so far as to sign treaties with the Hawaiian Kingdom validating this fact. This is not merely an assumption that the claimant is making. This is historic fact as validated by these historic documents. These treaties establish the jurisdiction of the Hawaiian Kingdom and the sovereignty of the Hawaiian Kingdom. Under the international laws that regulate international relations, these are binding international laws that in the claimant's position bind the Permanent Court of Arbitration as well as all of the nations that have signed these treaties. Unless the United States of America can go to an authoritative body and win an award validating that it somehow acquired jurisdiction over the Hawaiian Kingdom, then all of these treaties would supersede a joint resolution which is a municipal law of the United States of America.
MR GRIFFITH: Are any of these treaties after 1898?
MS PARKS: No, they are not. They are all prior to 1893. When President Cleveland in 1893 acknowledged that an occupation had commenced by the United States troops landing in Hawai'i - and I read you that excerpt earlier - he formally initiated the laws of occupation or he formally invoked those as applying to the situation at hand. It is the claimant's position that unless the United States of America has somehow validated its acquisition of Hawaiian Islands with an international body that it merely has a fraudulent claim looming and that, because the Hague regulations were invoked in 1893 not only by President Cleveland, they would have been invoked by the facts alone, that ...
PROF GREENWOOD: I am sorry, Ms Parks, which Hague regulations are you referring to?
MS PARKS: They were passed in 1907, but they were the codification of international customary law regarding occupation, so as of 1893 we are still dealing with the customary laws of occupation. I think that in the 1907 Hague Conventions it does say that they are simply codifying what is already considered to be the laws of occupation. I think that Cleveland's invocation of the term "occupation" would clearly bring those international laws, even if they had not yet been formally codified until 1907, into play in this situation. It is the claimant's position that the Hawaiian Kingdom's sovereignty has been validated by all of these nations and that the United States has made its own claim to infringe on that sovereignty, but, unless they go and perfect their title before an international tribunal, those who deal in international law are bound to observe the treaties and bound to observe the recognition of the sovereignty of the Hawaiian Kingdom. That is, in fact, why we came to the Permanent Court of Arbitration and sought experts in occupation, because we feel that the facts of occupation are so clear that experts looking at the situation would have no choice other than to acknowledge all of these treaties and this recognition of independence and that, unless the United States of America goes to some international tribunal to perfect its claim, it is really a fraudulent and illegal claim without any merit whatsoever. They are violating their treaties, the Vienna Convention, the Hague regulations and they have never taken any step or put forth any document that would call into question the validity of the Hawaiian Kingdom. They have never had any other nation or any international body validate any of the actions that they took.
PROF GREENWOOD: I have to say that I am still a little uneasy about what you say for this reason. What you have just put to us is very important about the recognition of the Hawaiian Kingdom in the 19th century, but I think that, when Professor Crawford put to you the point about something being authoritatively determined, he was referring to the question that was actually central to the proceedings being the subject of an authoritative ruling today. The fact that in the 1840s the major powers treated Hawai'i as a kingdom is quite different from the question whether Hawaii's status as an independent country or a part of the USA has been authoritatively determined as of the year 2000.
MS PARKS: Of course. My response to that would be that with all due respect the confusion and the failure to see how blatant the sovereignty of the Hawaiian Kingdom is and remains is the perfect example of how history has been manipulated and there has been mass confusion over the last 100 years. Lance trying to enter the Netherlands is the perfect example of the fact that all of these other nations have bought into what the United States has claimed. Even without any international validation of American claims, these other nations have followed suit into what America has claimed, but yet it remains that unless America can prove it somehow infringed or somehow acquired any territorial rights that these treaties are still binding. A simple legislative act cannot affect these treaties.
THE PRESIDENT: Of course, as a matter of international law, the question of the existence of a state is prior to the question of the existence of its treaties. If a state ceases to exist, then its treaties lapse. There then could arise questions of succession with respect to any replacement state. When Czechoslovakia ceased to exist at the end of 1992, by definition there was no Czechoslovakia left and the fact that treaties had been entered into did not somehow continue it. There was then a question of succession with respect to the treaties of Czechoslovakia so far as the Czech Republic and Slovakia was concerned. It is not enough to go back and say that, because we have a treaty with Czechoslovakia, therefore Czechoslovakia exists, unfortunately international law looks at the question the other way around. The other point is that you talk about international validation and then you say that nations have, in effect, implicitly or just through their conduct recognised a particular situation. Again, in international law it is possible for recognition to occur on a decentralised basis provided that it happens over a period of time and with general consent. If I could take you, for example, to the Timor judgment, page 104 of the report in paragraph 32, this reflects the point that Professor Greenwood has just mentioned as well. "The question for the court was not what was the attitude of the United Nations in 1976, the year after the Indonesian invasion of East Timor." It is clear what the attitude of the United Nations was in 1976. The Security Council and the General Assembly both passed resolutions in that year. The problem was what was the situation in 1995 when there was a big gap between the last United Nations resolution of 1982 and the time when the court was sitting. We have the same gap here except that it is a longer gap. The court in paragraph 32 said, "We cannot simply infer. Whatever the position may have been in 1976, We cannot infer that it is the same now. We have to actually make a judgment". They thought that it was relevant that the treaty with which Portugal complained had been circulated to the United Nations. Portugal sent it to the members of the United Nations and said, "Look, this is offensive" and no one did anything. It was a case of implicit inactivity and the court thought that was significant. At the end of paragraph 32 they said, "No responsive action was taken either by the General Assembly or the Security Council", that is to say by the members of the United Nations. The problem we have in applying the authoritative exception (let us not get them confused and assuming for the sake of argument that there is such an exception) is that, while you have authority in the 19th century as to the existence of the Hawaiian Kingdom, and there is no difficulty in accepting that there was a Hawaiian Kingdom which was a legal person in international law, the problem is that we have to assume that that is still the case and that requires a legal judgment. That has not been decided authoritatively.
MS PARKS: I am sorry, can you repeat that last part?
THE PRESIDENT: In the same way that it had not been decided authoritatively that Indonesian did not have sovereignty over East Timor in 1995, even though it may have been decided in 1976, and it was not decided in 1995 and the court, therefore, said, "Well, we cannot decide it because of the absence of the state affected". If the Security Council in 1995 had authoritatively said "Indonesia does not have sovereignty", the position might have been different - but they have not. We have a situation here which looks, as it were, rather similar and we are trying to look to see if there is any way of doing it. The problem with your authorities is that they all go back to before a certain period.
MS PARKS: My understanding of the laws of occupation, which is very preliminary, and you guys are the experts which is why we are all here together, is that time alone is not sufficient to extinguish sovereignty. Absence of proper transfer of sovereignty and giving consideration to the protests lodged both by the sovereign of the Hawaiian Kingdom, Queen Lili'uokalani, and all of the nationals that signed the petition against annexation, that those protests lodged were enough to validate and preserve the Hawaiians' right to self-governance. I will defer to the Council of Regency to explain how the Hawaiian Kingdom has been re-established and continues to exist today. But it is my understanding that time alone is not sufficient and in Merrick's treatise on occupation she discusses that fact, that a prolonged occupation does not make a legal occupation and that protests that were lodged do preserve our rights to our nation at this time. I wanted to move on quickly to the concerns that the Tribunal continues to raise about the rights of the United States or of a third party. It was brought to my attention over the break that to isolate the United States as being affected in this case is not really seeing the whole picture. The Netherlands will also be affected. France will be affected. Denmark will be affected. All of the nations that continue to refuse to abide by their treaties with the Hawaiian Kingdom will be affected. That is why we initially named all of these nations in our class action. It is not just America. If the rights of America will be affected, so will the rights of the Netherlands and so will the rights of Denmark. This is an international issue at this point. Lance is unable to leave the Hawaiian Kingdom because no nation will recognise his passport. That is the result of 100 years of misinformation that has been put out by the United States of America. They have never had a ruling validating that they have any sovereignty. To isolate the United States as a party that will be affected, I think is misleading. If we are concerned about the rights of non-parties, then we are also concerned about the rights of Denmark, the Netherlands, England, France, Samoa and all of the nations that the Hawaiian Kingdom and the Hawaiian nationals have a relationship with. On a similar line, I feel that this is more of an international case than a case between two parties, because of the fact that Lance is trying to assert his nationality, which is protected under international laws, the Declaration of Human Rights, it is protected in times of occupation. The lawfulness of the US conduct must be analysed under international law but, without any ruling giving them any valid authority or lawful recognition of their sovereignty, it seems to me that the treaties and the international recognition of the Hawaiian Kingdom would have heavier weight under international law and the Vienna and Hague Conventions than a mere claim by the United States to have authority based on a domestic law. I felt this morning that by the Tribunal continually coming back to whether or not the United States has rights, with all due respect, is exemplary of the confusion with which we have been dealing in 100 years, that they do not have any rights. Even though they have been occupying for 100 years and trying to perpetuate this picture without any international validation of their rights, I do not see how this Tribunal can even be concerned with their rights. I do not know where their rights are coming from. I see that they have responsibilities as an occupying power. They may have rights under the treaties with the Hawaiian Kingdom, but to effect any other rights my question is where are those rights coming from in the first place?
THE PRESIDENT: One of the points that might be made there is that the "Monetary Gold" principle applies equally to obligations. It is certainly not a case of the Tribunal presuming that a third party has rights. It is the case of the Tribunal lacking jurisdiction to determine even the obligations of the third state.
MS PARKS: That makes sense.
THE PRESIDENT: For example, in the East Timor case, although that was put in part in terms of the rights of Indonesia, it could equally have been put in terms of the obligations of Indonesia; for example, their obligation to leave East Timor to allow the people of East Timor the right to self-determination which, as we all know now, is what happened, although no one in 1995 expected it. Within five years Indonesia had changed its mind. There had been an act of self-determination and the people of East Timor will become independent in the next year or so, so things can change. The point is not a case of this Tribunal trying to assert what the rights of the United States are. This is concerned with its jurisdiction in respect of the legal position of a third state and it does not matter that that legal position involves rights or obligations.
MS PARKS: I appreciate that clarification.
PROF GREENWOOD: Could I perhaps clarify something else in that case? You mention the possible effect of judgment on the Netherlands, France, the United Kingdom and other states, but the reason why the Tribunal asked you about the US position is quite important, because, if I have understood the nature of your client's claim correctly, your claim is that the Kingdom of Hawai'i failed to protect your client against what the United States was doing. It is not a suggestion that the Hawaiian Kingdom failed to protect him against something that Britain, France or Japan was doing.
MS PARKS: Actually, as of two days ago, I think our claim has enlarged. I do have an exhibit that I would like to offer. I have copies for the arbitral Tribunal as well as the Hawaiian Kingdom. (Handed) Now the Netherlands has got involved in this case as a potential third party. If you see on the first document, "Customs of the Netherlands did officially refuse Lance Larsen entry into the Netherlands". You will see on the top of the page it has his name, date of birth, nationality, American. I was with Lance. He was showing treaties, he was citing his rights, expressing that he was not an American, that he was a Hawaiian national. Now we have the Netherlands violating his rights. Of course, he would like to make formal pleadings to enlarge his claim against the Hawaiian Kingdom. They did try to intervene after Lance was detained. I know that they were making phone calls to different diplomatic offices here in the Netherlands trying to felicitate his access, but here once again the Council of Regency has failed to protect him, this time with respect to the Netherlands. Theoretically, Lance could try to travel to all of the different nations and every time that he is refused he has enlarged his claim again. Hence the point that I made earlier that this has become an international issue, more than just an issue between the Hawaiian Kingdom and the United States or Lance and the United States. His nationality is going to be denied everywhere on this planet until the Council of Regency can rectify the situation.
THE PRESIDENT: It may exemplify the situation of Mr Larsen. Does it make things better from a jurisdictional point of view? Let us assume for the sake of argument that you had commenced proceedings between these parties under the Permanent Court of Arbitration alleging a failure to ensure Mr Larsen's entry to the Netherlands. Surely the position would have been that in substance there was the prior question of the rightfulness or wrongfulness of the act of the Netherlands in refusing permission. It would simply be another example of the same underlying problem, that the substance of your complaint or at least the substance of the complaint upon which your complaint against the defendant is dependent is a complaint against a third party.
MR GRIFFITH: Can I ask you another related question, counsel? Do you see the declaration that you request from this Tribunal as enabling Mr Larsen to settle his difference with the Netherlands Government?
MS PARKS: Can you ask that again, please?
MR GRIFFITH: You have handed us this exhibit to show that the Netherlands Government regarded Mr Larsen as an American citizen of the United States.
MS PARKS: Right, refused to acknowledge his nationality.
MR GRIFFITH: Do you see that our decision would be relevant to resolving that dispute which your client has with the Netherlands Government?
MS PARKS: I think inevitably it would be relevant. I think that you would not be affecting the rights of the Netherlands, because their rights are already set out in the international laws of occupation and with their treaties with the Hawaiian Kingdom, but you would be validating that those rights continue to exist. They are still confused because of what America has perpetuated, that they do not acknowledge the nationality of Lance as an Hawaiian national. I hear the point that the Tribunal is making about the fact that your ruling might now affect the Netherlands, which just enlarges the problem of the third party, but I do want to state that my main intention for bringing this clarification in terms of Lance's relationship with the Netherlands is to show that we are trying to take the focus off America, that we are not here specifically to go after America or to have any ruling that might affect them. Really, we are trying to validate Lance's rights to travel internationally, his rights to his nationality under the universal Declaration of Human Rights and the laws of occupation. It is understandable that the focus of the third party has been the United States of America, given their role, but my intention at this point is to show that it is truly an international issue and that it is not just America that will be affected. Of course, that does not alleviate the concern about affecting third parties at all. Now we have a fourth, fifth and sixth party. But I felt it valuable to try to shift the attention away from the United States of America in order to clarify that we are not here to affect their rights. We are here to validate Lance's rights. That brings me into the next point that I wanted to make, which is that Lance has come to this arbitral Tribunal after exhausting all remedies that he has found available to himself in courts of the state of Hawai'i and the federal courts of the United States located in the Hawaiian Kingdom. The Hawaiian Kingdom has tried to go to the Supreme Court of the United States. We have got nothing but shut doors. To clarify that, he has tried to exhaust every legal remedy that he feels that he has before coming here, because he knows that America is on some tangential level involved here. I think that the suggestion earlier about trying to seek a Security Council or some type of United Nations resolution was very helpful, but I did want to make sure that you understood that we have tried to exhaust our remedies before coming here and convening this Tribunal. I am now moving on to the issue of the International Court of Justice versus the Permanent Court of Arbitration and whether arbitration is more lenient. I would argue that the jurisdictional issue is going to apply in both cases and that the main difference that we saw and why we came to the Permanent Court of Arbitration is that we could choose judges that specialise in the laws with which we are dealing. Also we wanted a more co-operative atmosphere, I have a feeling that the jurisdictional issues are going to be the same threshold in both court rooms. Professor Greenwood, you had mentioned that, perhaps, it was more lenient in the Permanent Court of Arbitration on the jurisdictional issue. My hunch is that it is not. If there is a third party that needs to be involved, it does not matter what court room you are in, that is still going to be a threshold issue. Of course, if you, guys, have expert opinion that helps my case more than that, we would love to hear it, but it is my guess that that jurisdictional issue is not going to be any different here than it would be in the ICJ.
PROF GREENWOOD: Let me make it quite clear. I was not suggesting that there was necessarily a difference or that there was not. I was merely suggesting that this was an issue on which you might like to make submissions to us. We appreciate the candour with which you have accepted that the East Timor principle would apply in this court room just as much as it would in the one the other side of the building.
MS PARKS: Yes. Finally, I was asked to discuss fact finding as to whether there are limitations in the rules and, if the limitations apply to fact finding, which facts will be found. I can make a brief comment as to the claimant's position, but the fact finding was requested by the Hawaiian Kingdom. It was not requested by Lance Larsen. I would prefer to defer to their submissions as to why they want fact finding and what they think the facts are that should be found and then reserve comment for Monday. But my initial comment without hearing their submissions tomorrow would be that we are interested in finding the extent of the Hawaiian Kingdom's responsibility in relation to Lance. That is the fact that is in dispute. It is our position that until they somehow preserve Lance's nationality for him to be able to travel and to live as a Hawaiian subject, they remain liable. I am sure that they are going to differ on that fact, but I am interested to hear what exactly they would like to be found in fact finding tomorrow and then reserve rebuttal for that. But, since that did come from their side, I would like to let them take the lead on answering that question.
THE PRESIDENT: That is an entirely proper position to take. Of course, I quoted from their pleading and not from yours in that regard. We will wait with interest to hear what you say on that. Another point to make is that the question whether they are responsible for action or inaction is not a question of fact, it is a question of law. Of course, there may be a question of fact which underlies it, but it is as it stands a question of law.
MS PARKS: Given that, we would prefer to continue with arbitration, because that is really the question we are after, that question of law. I do not think that there is any factual dispute as to the many efforts that they have taken or the fact that they have not been able to protect my client. Given that comment, we would rather stay with arbitration because that is really why we are here.
PROF GREENWOOD: Ms Parks - I will address these remarks to the representatives of the Kingdom as well - you might find it helpful to have a look at the five cases of fact finding that the PCA has already been engaged in. They are briefly reported in this centenary volume of which I think copies have been made available to you. Should you wish to do so, please feel free to address us on those tomorrow.
MS PARKS: To summarise our position before concluding here, Lance filed this case with the premise that the territorial jurisdiction of the Hawaiian Kingdom is well established under international law based on 1843 recognition and the treaties and that, despite the occupation, sovereignty remains intact even over 100 years, because of the protests lodged by both the nationals and the sovereign of the Hawaiian Kingdom also in the 1890s. While American has perpetuated an image that they have somehow acquired sovereignty over the Hawaiian Kingdom, without a ruling from an international tribunal acknowledging that as a fact, we are all bound to operate under the laws and the treaties that remain valid. For one nation to claim to acquire another I do not think absolves treaty responsibilities or international laws of occupation. As Merrick cites in her documents occupants do not usually like to admit that they are occupying. I think that that is the situation in which we are in. It is our position that the Tribunal has an obligation to acknowledge the sovereignty of the Hawaiian Kingdom and, absent some authoritative ruling that the United States has sovereignty, it does not even have the power to acknowledge that the United States has any rights in the Hawaiian Kingdom. I may be mistaken in that and that is our argumentative position, but without some perfection of title or international validation of the actions taken by the United States, they are not involved in this case because we are dealing with a national and a government during a time of occupation and there is a distinct relationship there that we would like to clarify. I think that the fact that there is so much concern over affecting the rights of the United States has been a little challenging and that is why I bring in the Netherlands and the other countries to show that really it is an international issue that we will be affecting the rights of many countries. Again, unless there is some international ruling or authority that validates any transfer of sovereignty, this Tribunal is bound to recognise the inherent sovereignty of the Hawaiian Kingdom.
MR GRIFFITH: Counsel, to some extent your submission would be a submission that you could make were the United States a party, to say, "The onus is on you, the United States, to establish your position". In effect, what you submit to us is to say that it is so clear - you call it the blatant exception - that you say that you can make that submission in the absence of the United States.
MS PARKS: Actually, I would clarify that. It is not a submission, it is a fact that we are taking for granted and relying on filing the case. The submission would be that the International Tribunal does have jurisdiction given the duality of legal orders during an occupation. The factual truth or non-truth of the Hawaiian Kingdom is taken as a historical fact by the claimant. It is not something that he is arguing with the Hawaiian Kingdom or feels that the Tribunal has any leeway in acknowledging given international law. It is not part of our submissions as much as it is part of the facts under which we are operating. It is our factual assumption that that is the truth under international law and, absent any other evidence, there is nothing that any of us can do to change that.
THE PRESIDENT: Ms Parks, the question of whether a state has sovereignty is never just a question of fact, surely? It is a question of mixed law and fact. It may be clear what the answer is. It is clear that there is a state called the Netherlands and at some level there is no point in denying it, it is there, but, nonetheless, from the perspective of international law in any situation in which there is a dispute the question of territorial sovereignty is a question of law. I spend quite a lot of my time arguing about which of two states has sovereignty over a particular bit of territory. Although facts are an important part of that inquiry, the facts do not dispose of the question. It becomes a question of judgment.
MS PARKS: It would be the claimant's position that the laws are the laws of occupation that govern. That is why we cited those laws in the documents. Taking the facts that have been presented, including the United States documents, in conjunction with the laws of occupation, that leaves the claimant with the basic premise that he is a Hawaiian national and that, absent any international law that would say otherwise, which we have not identified or any other international fact or findings of a tribunal to say otherwise, that that is a factual assumption under which he is operating and filing this case. It is not something on which he is requesting a ruling. He is requesting a ruling on his rights with respect to his government.
PROF GREENWOOD: I dare say that just as Australia had recognised Indonesian sovereignty over East Timor so had a number of other countries - let us say for the sake of discussion that the members of the Association of South East Asian Nations had done - so that Australia would have been able to say in the ICJ, "If you rule on this case, you are ruling on the legal position". Leave aside questions of rights for the moment. "You are going to be ruling on the legal position of Indonesia. You are also going to be ruling on the legal position of Singapore, Malaysia and Brunei". Do you think that that would have affected the outcome of the case bringing those extra states in?
MS PARKS: I think that the case dealt with the third party issue and that all of those other countries would just fall under that same category.
PROF GREENWOOD: So it would not, in fact, have made any difference?
MS PARKS: I think that I am going to have to think about that one a little bit more before I say anything.
PROF GREENWOOD: That is quite all right. We will allow you to do that. It is actually quite important, because it goes to the point with which you opened this afternoon, your point about the other states that are involved. I think that what you need to do is to look at East Timor and then to make some submissions to us about whether it would actually have made any difference to the outcome in that case if the legal position of other states had been involved as well. If the answer is "no", then, with respect, the point you made at the beginning of your submissions this afternoon does not actually take you anywhere.
THE PRESIDENT: It actually makes matters worse rather than better.
PROF GREENWOOD: Yes.
THE PRESIDENT: I do not want to talk at all about your situation, but talking about East Timor, let us assume that Indonesia had intervened in the proceedings between Portugal and Australia and that both of the parties had said, "We are perfectly happy with this, you have come in, you are a party".
MS PARKS: Wonderful.
THE PRESIDENT: "That is exactly what we want. Now we can consider the real issues" and precisely your argument would have been put to Indonesia, "Where do your deeds come from? Where is your title to East Timor? In the light of the Security Council resolutions and so on, where does your title come from?" That would have been quite a difficult question for Indonesia to answer. It is quite clear that, if that had happened, it would not have been enough for Australia to say, "Well, you still cannot decide the case because Indonesia is not here". There was really no disagreement between the parties and it was obviously the case that the position of Indonesia was the key position because it was Indonesia that was occupying the territory. The position of other third states, which may or may not have recognised that situation, was really secondary. What mattered was Indonesia's position. The court certainly did not assume that Indonesia had any substantive rights in East Timor. It was a question that, vis-a-vis a court of justice, Indonesia had the right not to be judged or not to have its legal position affected by proceedings to which it had not consented and to which it was not party. If we are talking about rights, we are really talking about due process rights or procedural rights. We are not talking about substantive rights. The court left completely open the position of the parties and, indeed, they went on to say in that case that the people of East Timor had the right to self-determination. The court's judgment - and this is in a sense the difficulty - in East Timor is consistent with the assertion of Portugal, that the people of East Timor have the right to self-determination. The court said, "Yes, but that still does not entitle us to decide the case". That is the problem that we see as a problem in this case, although we are still, obviously, discussing it.
MS PARKS: If the Tribunal does not have any more questions, I would like to spend some more time with the cases and reserve my comments for Monday.
THE PRESIDENT: Mr Sai, we envisage that the time table would be that you would speak tomorrow in response to what has been said this morning and this afternoon. We are happy to proceed on that basis and adjourn now.
MR SAI: Yes, we will be presenting tomorrow morning.
THE PRESIDENT: Since we have been talking about the court down the corridor, the International Court is actually giving judgment tomorrow morning in a provisional measures application involving a dispute between The Congo and Belgium. No doubt, these people are more formidable than we are and, of course, know quite a lot about many aspects of international law - and I will not tell them that it has been conceded in this case that there are others who know more.
MR GRIFFITH: And there are 17 of them!
THE PRESIDENT: But it may be interesting for people here to listen to that. It will not take very long, not more than 20 minutes. The case involves the question of whether a judge in Belgium is entitled to indict the person who was then the Minister of Foreign Affairs with The Congo for international crimes and whether under international law there is immunity against such an indictment. That is a provisional measures application. We will start tomorrow here at 10.30. Thank you very much.
(Adjourned tomorrow until 10.30 am)
IN THE PERMANENT COURT OF ARBITRATION CASE NO 99001
Peace Palace, The Hague, The Netherlands Friday, 8th December 2000
PROFESSOR JAMES CRAWFORD (PRESIDENT) GAVAN GRIFFITH, QC and PROFESSOR CHRISTOPHER J GREENWOOD
LANCE PAUL LARSEN Claimant
THE HAWAIIAN KINGDOM Respondent
MS NINIA PARKS, ESQ appeared on behalf of LANCE PAUL LARSEN
MR DAVID KEANU SAI appeared on behalf of the HAWAIIAN KINGDOM
Transcribed by Harry Counsell & Co (Incorporating Cliffords Inn Conference Centre) Telephone: 00 44 20 7242 9346 Facsimile: 00 44 20 7831 2526
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)
IN THE PERMANENT COURT OF ARBITRATION CASE NO 99001
Peace Palace, The Hague, The Netherlands Monday, 11th December 2000
PROFESSOR JAMES CRAWFORD (PRESIDENT) GAVAN GRIFFITH, QC and PROFESSOR CHRISTOPHER J GREENWOOD
LANCE PAUL LARSEN Claimant
THE HAWAIIAN KINGDOM Respondent
MS NINIA PARKS, ESQ appeared on behalf of LANCE PAUL LARSEN
MR DAVID KEANU SAI appeared on behalf of the HAWAIIAN KINGDOM
Transcribed by Harry Counsell & Co (Incorporating Cliffords Inn Conference Centre) Telephone: 00 44 20 7242 9346 Facsimile: 00 44 20 7831 2526
DAY THREE (AS AMENDED)
THE PRESIDENT: We meet this morning to hear the second-round presentations by the parties, but, before I call on Ms Parks, Professor Greenwood has a note of explanation.
PROF GREENWOOD: Chairman, thank you. With your permission, I would like to apologise to the parties and to the members of the public who have come to attend here today. I arrived at Cambridge Airport for my flight in good time, six o'clock this morning, to find that it was an hour delayed. When I realised how difficult it was to land at Amsterdam, I am just grateful to be here in one piece. I must apologise for the fact that I kept you waiting for an unnecessary hour.
THE PRESIDENT: Ms Parks.
MS PARKS: Aloha. It is nice to see you again. I am going to call Lance on the phone very briefly and ask him a few questions about his experience attempting to travel on his Hawaiian Kingdom passport. It should not be more than a 15-minute phone call. Then I will proceed to address the numerous issues that the Tribunal raised during Thursday's and Friday's testimony.
THE PRESIDENT: What is the status of the communication to Mr Larsen? Is he giving evidence?
MS PARKS: Yes, I am going to ask him four questions and he will be answering those four questions to further clarify some of the background of the legal dispute between the parties. Since there seems to have been some issue as to what precisely the legal dispute is, I thought that it would be wise. Also, because he is my client, I would like to bring his voice into this court room even though his presence in the physical sense is not here. Are there any objections?
THE PRESIDENT: Would you give us a moment, please? (The Tribunal conferred)
THE PRESIDENT: Under normal circumstances, this sort of material should have come in in the first round. Mr Sai, do you have any difficulty with asking Mr Larsen now these questions?
MR SAI: May I confer?
THE PRESIDENT: Yes. (Mr Sai conferred with his colleagues)
MR SAI: At this time we really do not know what it would bring out as far as the proceedings are concerned, but we do not want to prevent Ms Parks from presenting that, but we leave that up to the Tribunal to decide.
THE PRESIDENT: Ms Parks, there are two questions. There is the question of the circumstances in which Mr Larsen was not permitted to enter the Netherlands. You have actually tendered the refusal document, so there is no difficulty about our accepting that or accepting the reasons. You are welcome to ask him to confirm that, but I doubt that needs to take very much time. What is more important from the Tribunal's point of view is the definition of the dispute between the parties. That is a matter on which at this stage Mr Larsen is acting as claimant not as witness. In other words, we are not hearing the evidence on the substance. It helps us in terms of any award that we issue to know what the dispute is. The Tribunal will permit you to ring Mr Larsen to clarify with him what his perception of the dispute is on the basis of which you can make submissions, but I would be grateful if the conversation could be relatively short.
MS PARKS: Of course.
THE PRESIDENT: Thank you.
(A telephone connection was made to Mr Larsen)
MR LARSEN: Hello.
MS PARKS: Hello, Lance. Can you hear me?
MR LARSEN: Yes. I would like to just say "aloha" to Professor Crawford, Professor Greenwood and Mr Gavan Griffith, Queen's Counsel. I thank you for trying to help me to resolve this dilemma that I am in.
MS PARKS: Lance, we will be skipping the first two questions and proceeding directly to the third and the fourth questions that we had discussed earlier.
MR LARSEN: OK, which will be?
MS PARKS: Can you please briefly state for the record what your nationality is?
MR LARSEN: My nationality is a Hawaiian subject.
MS PARKS: Can you please describe what legal issue it is that you would like this Tribunal to address?
MR LARSEN: Basically, to have my Government, the Hawaiian Kingdom, protect my rights from the unlawful imposition of US laws over my person.
MS PARKS: At this point would you also consider that you need protection on a global level?
MR LARSEN: Yes, I would say that because my nationality has been denied, even when I tried to enter the Netherlands, which we have treaties with.
MS PARKS: Thank you. I am going to leave you on so that you can hear the proceedings. Feel free to interrupt at any time.
MR LARSEN: Thank you.
THE PRESIDENT: Ms Parks, feel free to interrupt at any time subject to the power that the Tribunal retain control over the proceedings.
MS PARKS: Of course, subject to the power of the judges, of course.
THE PRESIDENT: Before we proceed, we have here an article written by one of my colleagues, Mr Griffith and another, in relation to the UNCITRAL Rules and I will just pass copies of that down to each side in case they are of any assistance. I would not, for a moment, suggest that anything that Mr Griffith wrote was not of assistance!
MS PARKS: Before I discuss the jurisdictional issues that the Tribunal has raised in terms of a third party potentially being affected by this case, I first would like to place on the record a sense of urgency that Lance has been living as a Hawaiian national for many years now and has gone to every court that he has found within the Hawaiian Kingdom and he is aware that his Government has tried to go to the highest court in America to resolve this dispute. I would like to place a sense of urgency on this court hearing this case, because we have a Hawaiian national whose existence is being denied by the world. There may be certain parties that may have more guilt or less guilt, culpability, which has resulted in the denial of his nationality, but that is not the issue before the Tribunal. Lance is simply trying to find a party who will help him. When he filed his class action he named the Hawaiian Kingdom, the United States and every nation that the Hawaiian Kingdom has a treaty with, seeing as all of those nations pledged under solemn oath of treaty to acknowledge the Hawaiian nationality. Today in the year 2000 all of those nations have denied this nationality, except for the Hawaiian Kingdom. They were the one party that responded to the class action and said that they were willing to step forward to the next level and to discuss these issues. Whilst Lance may rather have some other party willing to talk with him about how he can protect his rights, it is the Council of Regency that has taken that responsibility and entered into that relationship with Lance, not simply because they have reinstated the Hawaiian Government but because they have agreed to waive their sovereign immunity and to discuss this relationship with Lance. I was given a chance this weekend to fully digest all of the three cases that were called to the parties' attention over the last two days and for the next few minutes I am going to distinguish our case from those three cases and provide our position as to why this court does have jurisdiction over the claim that exists between Lance Larsen and his Government. Briefly stated, the rule that comes out of the Monetary Gold, Nauru and East Timor cases is that a court cannot rule on the lawfulness of the conduct of a third state when that third state is not present. Reading further into the cases, specifically into the East Timor case, it seems that in any given international case there will be rights of third parties that will be affected. We now live in a world that is interconnected enough that any ruling between two parties on a global level will probably affect third parties. Therefore, the court must consider the interests of the third parties in a specific case and balance those interests against the parties that are in the case, specifically in this case here, Lance Larsen versus the Hawaiian Kingdom. The Tribunal has raised concerns about the United States as a third party. Therefore, the Tribunal must balance the interests of the United States as a third party with the interests of Lance Larsen, the claimant in this case. It is our position that, while the interests of the United States may be affected by any ruling in this case, those interests are not the very subject matter of this dispute. That is a line that was drawn in the East Timor case in balancing. A court is not prevented from adjudicating when the judgment it is asked to give might simply affect the legal interests of a state which is not a party to the case. When those legal interests form the very subject matter of the dispute, then the court must decline the jurisdiction. In this case the subject matter of the dispute is a relationship between Lance Larsen and the acting Council of Regency. Therefore, the United States interests are not the very subject matter of this dispute, as the interests of the Netherlands are not.
PROF GREENWOOD: I am very sorry, but you are going faster than I can take notes. Since I also speak very fast, I have sympathy, but could I ask you to pause just for a minute, because this is a very important submission.
MS PARKS: I can repeat all of that if that would be helpful.
PROF GREENWOOD: If you would like to repeat your definition of what you think "subject matter of this dispute" is.
MS PARKS: Of course. The subject matter of the case here today is the relationship between Lance Larsen and the acting Council of Regency. Both parties have introduced exhibits and set forth the facts of this relationship from when it began in 1996 until now. The incidents that recently occurred at the Amsterdam Airport have escalated this relationship in terms of Lance's sense of urgency that his Government do something to protect him. It is our position that for this Tribunal to discuss the relationship between the acting Council of Regency and Lance Larsen it is not necessary for the Tribunal to make any rulings on the legality or illegality of United States actions. While a ruling may affect interests of the United States, those interests are not the very subject matter of the dispute.
PROF GREENWOOD: You say that, but I have re-read the memorials and the essence of the claim that your client is putting forward is that the Hawaiian Kingdom has a duty to protect him.
MS PARKS: Absolutely.
PROF GREENWOOD: What does it have a duty to protect him against? The unlawful imposition of United States law upon him. Therefore, the heart of the question, surely, is whether there is, indeed, an unlawful imposition of US law upon him.
MS PARKS: I am very thankful for you bringing up that point. I, too, re-read the memorials and realised that up until the reply we were confusing some of the issues. I would say that the submissions in the reply accurately reflect the issues without the United States involvement. When I re-read the memorials and the counter-memorials submitted by both parties, I can see why a third party issue would be implicated in the way in which it was phrased in those documents. Specifically, our first definition of the issue was whether Lance Larsen's rights are being violated as a result of the occupation. Of course, that implicates the United States. Our understanding is evolving as we stand here, so I appreciate you bringing up that point because I would like to clarify for the record that the submissions at this point, the defining submissions that Lance and I would like to put forward, are those contained in the reply which asks specifically, has the acting Council of Regency failed to protect Lance's nationality? We are no longer asking you to rule on the unlawful imposition of American laws, because, frankly, his nationality is being denied on a global level. Whether the United States imposition of American laws has to do with that is irrelevant for him at this point, because he is being denied his existence on a global level.
THE PRESIDENT: The United States asserts jurisdiction over Mr Larsen on the footing (a) that he is present in the United States and (b) that he is a United States national - as I understand it, some combination of those two facts. Some of the things he has done the United States would assert jurisdiction over irrespective of nationality. I imagine that there are other things which would be dependent upon nationality. It is not so much that the United States fails to recognise that he has another nationality. For the United States that is, presumably, irrelevant. The United States asserts that he has its nationality. Why does the Tribunal in answering the question that you say is the subject matter of the dispute not have to rule on those questions?
MS PARKS: It is my understanding - and I am new at international law, so please correct me if I am wrong - that both of the parties agree upon the facts of the case. There are no factual disputes. One of the facts that is agreed upon is that the Hawaiian nationality and the Hawaiian Kingdom continues to exist under the international laws of occupation and treaties.
THE PRESIDENT: I am sorry, Ms Parks, I do not want to repeat myself, but the problem is for the reasons that were explored in discussion in the first round, those do not seem to be purely questions of fact. I put the example to Mr Sai and I will put it to you. Let us take the case of the German occupation of the Netherlands in the Second World War. A question could have arisen between a Dutch national and the Dutch Government in exile as to the Dutch Government in exile's failure to protect that person.
MS PARKS: Of course.
THE PRESIDENT: What difference would it make whether the occupation was lawful or unlawful in that situation? Would it make any difference in international law?
MS PARKS: I will have to guess to answer that question, but, again, I think whether the occupation is lawful or unlawful is irrelevant and is not an issue between the parties.
THE PRESIDENT: There is a distinction between it being irrelevant and it not being an issue between the parties. It is clear that it is not an issue between the parties. That is actually part of the problem. That it being irrelevant is a different matter. For example, would you be prepared for the case to go ahead - I am simply exploring possibilities - on the footing that the United States' occupation of the Hawaiian Islands is lawful?
MS PARKS: From Lance's perspective whether the occupation is lawful or illegal, his nationality is denied in both contexts. His main concern is not whether the occupation is legal or illegal, but the fact that his nationality is being ignored by the world.
THE PRESIDENT: Of course, this case is not against the world.
MS PARKS: Of course not.
THE PRESIDENT: It is against the Hawaiian Kingdom.
MS PARKS: And that it is not being protected by his Government. Whether the occupation is legal or illegal may or may not affect the acting Council of Regency's obligations to protect Lance, but, aside from that relationship, Lance is not concerned in this case with this legality of US conduct. He is concerned with the legality of the acting Council of Regency's conduct.
PROF GREENWOOD: But, Ms Parks, you are saying that the acting Council of Regency owes a duty to your client.
MS PARKS: Yes, we are.
PROF GREENWOOD: Secondly, you are saying that the acting Council of Regency has failed to discharge that duty.
MS PARKS: That is correct.
PROF GREENWOOD: It would only have failed to discharge its duty of protection if there were first some act requiring protection. There is no right under international law for a Government to protect its citizens against the lawful acts of other Governments, only against the unlawful acts. So a claim that there has been a failure to protect necessarily presupposes that there has been some illegal conduct which triggers that right.
MS PARKS: That is a very concise explanation that I have not heard before. I thank you for that.
THE PRESIDENT: I am sorry, perhaps we have not been clear enough, but this is our problem. Let us assume, for example, that Germany in the case I have given was imposing certain regulations on Dutch citizens in the Netherlands which fell within the scope of the powers of an occupant. It would be very difficult indeed to argue that there was any duty on the Dutch Government to prevent that. But let us assume that Germany was imposing forced labour or slave labour on the individuals. It is arguable that there might be some duty - at least not to connive, I am not suggesting that the Dutch Government connived, but at various stages the French Vichy Government connived with the use of its citizens in slave labour camps. One can well imagine after the War that that issue might have given rise to litigation. But the point is that it would have been predicated upon the illegality of the underlying conduct. That is the problem that we have here. The way in which the case is formulated in the pleadings, not excepting the two reply submissions, seems to predicate a judgment of illegality. You say, of course, that the parties agree on that. We have been through that. We are trying to find any way around it. The way I suggested in my analogy - perhaps an imperfect analogy - was that it was a question of fact whether a territory was occupied and not a question of law. As Professor Greenwood has pointed out, that creates the difficulty of where is the source of the obligation to protect against conduct which can neither be stipulated nor be held to be unlawful.
MS PARKS: Of course, the acting Council of Regency on some level has acknowledged its duty and that is what propelled the case forward, that both parties were agreeing that a duty exists. I can understand that for the Tribunal to acknowledge that a duty exists that they on some level have to make judgments on the actions of America, but I would challenge the Tribunal to try to view the actions of the Council of Regency free standing without seeing if it has a relationship with the United States. It is my understanding that the sovereignty of the Hawaiian Kingdom is not dependent upon any actions of any other nation, whether they are legal or illegal. Therefore, the acting Council of Regency acting upon that inherent sovereignty, the judgment of their actions should be able to be made solely based on their actions, not looking at who may be interacting in different ways around them. I am new at international law, that may not be an accurate statement, but it is our conception that their judgments can be judged on their own without looking at the different ways that nations have acted around them, especially given that they have acknowledged that they have this duty.
PROF GREENWOOD: Ms Parks, the issue you raise in your pleadings and in your oral submissions is not about the sovereignty of the Hawaiian Kingdom.
MS PARKS: No, it is not.
PROF GREENWOOD: That is necessarily a given as the basis for your claim.
MS PARKS: Of course.
PROF GREENWOOD: Your claim is that there has been a failure to protect. Let me give you an analogy. I flew from Britain to Amsterdam this morning, late. When I arrived at Amsterdam Airport, I showed my British passport. The immigration officer looked at it and waved me through. I would have no claim against the United Kingdom Government under UK law or international law for its failure to protect me against the Netherlands Government's act of checking my passport, because it is something that the Netherlands Government is perfectly entitled to do. On the other hand, if the Dutch officials had taken me into a side room and applied electric shock treatment to me or something like that, then I would have had a case that the UK should have protected me. Why? Because the Netherlands had acted illegally. If I brought proceedings in a court like this (an international court) against the United Kingdom for its failure to protect me against the Netherlands Government, I would have to show an illegal act on the part of the Netherlands Government, otherwise I simply would not have a case. The very fact that I would have to show an illegal act on the part of the Netherlands Government would mean that I was impleading the Netherlands, which runs us into the problem of East Timor. I think that that is the difficulty. That is what led to our Procedural Order No. 3 that we are putting to you. We want to give you every opportunity to show a way round that if you can.
MS PARKS: Again, let me first start with your analogy at the airport. Lance is not interested in whether the Netherlands Government acted legally or illegally when it denied his entrance and he is not interested in whether the United States has been acting legally or illegally when they deny his nationality in every court proceeding he has been in. What he is interested in is whether the acting Council of Regency has acted illegally when it has failed to protect his nationality. You just stated, Professor Greenwood, that it is necessary to determine what it is that the acting Council of Regency is protecting Lance from. That is correct. It is Lance's position that the acting Council of Regency is protecting him or should be protecting him from the global denial of his nationality, not just from America, but from the Netherlands and from the other nations that are not recognising the Hawaiian Kingdom passport. There are many other nations that are implicated in the illegality except just America. That may make our case even worse, that we have multiple third parties, but one thing that I am trying to do is to shift the focus away from America as the only third party. I think that another difference that I would like to mention at this point, and I am not trying to side track the discussion, is that in all of the three cases that I studied this weekend we are dealing with nations on both sides of the table and colonies, non-self-governing territories. I think that the difference in parties in our case can also distinguish our case from these three cases and that you have a national who has entered the PCA under the Optional Rules that are available for a state and a non-state. In 1993, I think it was, the PCA decided to open its doors to individuals and non-governmental organisations. I think that taking into consideration the importance of a national's plea for help when the world is denying that he exists is another consideration in terms of jurisdiction. Specifically the relationship that he would like clarified is between himself and the acting Council of Regency. I understand that to do that you may have to affect the interests of any third parties, the United States, the Netherlands and other nations that are not today recognising the Hawaiian nationality.
PROF GREENWOOD: I can see that. If you go to the East Timor case, the International Court of Justice only has jurisdiction in cases between states. You have got to establish that both the parties are states before the contentious jurisdiction of the court can come into play at all. The PCA's jurisdiction is broader under the various sets of rules that we have. But at the moment I just cannot see how the outcome in East Timor would have been any different if the parties had been East Timorise and the state of Portugal, with the East Timorise individual saying that Portugal, his state, had failed to protect him against Indonesia. It would be very strange, surely, if in a case where there was a real dispute between the parties, Portugal and Australia, the International Court had said, "We cannot exercise jurisdiction because the subject matter of the dispute is the legality or illegality of Indonesia's conduct", but would have come to a different conclusion if the parties had been an individual from East Timor, assuming for the moment that either the Rules in the ICJ would apply there or that the ICJ has a broader jurisdiction than it has. It would have been extraordinary if they had come to a different result in a case where the parties had been an East Timorise citizen and the Republic of Portugal.
MS PARKS: But, of course, that Court ruled that Indonesia was the necessary party, so that you would still be missing the necessary party if an individual came. I think having East Timor present would give jurisdiction in that case, though, because the rights of the East Timor people are the very subject matter of that case. It confused me - I guess that I agreed with the dissent in that case - that without someone representing East Timor interests that you actually were missing the necessary party because it is the East Timor people who were being injured. That is the beauty of this case. Lance is representing the very interests that are being harmed, his nationality.
PROF GREENWOOD: Which of the dissenting opinions are you referring to, Judge Weeramantry or Judge Shahabuddeen?
MS PARKS: Shahabuddeen. In the East Timor case it seemed that the very subject matter was the rights of the East Timor people. Well, where were they in that case?
PROF GREENWOOD: Can I just make the point that Judge Shahabuddeen, of course, is not giving a dissenting opinion. He is giving a separate opinion. He is voting to uphold the decision. Are you adopting Judge Shahabuddeen's argument, because it is quite important that we understand correctly what you are saying?
MS PARKS: There are several different arguments that were made. I actually agreed with different parts of the different arguments. I agreed with Judge Shahabuddeen when he was discussing the balancing of conflicting interests and he mentioned that any international court will have an affect on third parties and that it is up to the judges to decide how to balance the interests of the third parties with the interests of the parties before the court. Of course, here, because my client has nowhere else to turn - he cannot go to the ICJ - the courts within the United States have ignored him completely - that his interests are very heavy and very urgent in this matter. The judge that spoke about East Timor people not being available ...
PROF GREENWOOD: Take your time to find the reference.
MS PARKS: I think that it is actually Weeramantry.
THE PRESIDENT: I think that the judge you are referring to is Judge Vereshchetin, who made the point in a declaration.
MS PARKS: East Timor was a necessary party.
THE PRESIDENT: The people of East Timor were not necessarily represented by Portugal. Judge Vereshchetin was giving reasons for ...
MS PARKS: Can you say his last name again?
THE PRESIDENT: This is on page 138. Judge Vereshchetin. He says that there are several reasons for the court's decision, one is the absence of Indonesia's consent, but the other, in my opinion no less important reason, is the lack of any evidence as to the views of the people of East Timor on whose behalf the application is being filed.
MS PARKS: It is the very last paragraph of page 138.
THE PRESIDENT: Yes.
MS PARKS: That is one reason why I think that this case is so exceptional and that on a policy reason the PCA would be doing a great disservice to its own future if it refused jurisdiction over this case. It would, effectively, be turning away nationals who have no other international court to go to. The centennial papers were handed to me on Friday and a brief booklet and Kofi Anan and both the former and current Secretary-General of this court in all three addresses discussed the future of the PCA, where is it going and what kind of cases does it want to open its door to. It seems very clear that corporations have been invited to the PCA to discuss their issues. I beg with you here that, if you turn away a Hawaiian national, you are going to be slamming a door in the face of many people who are being denied international human rights and really have nowhere else to go.
THE PRESIDENT: That depends on a number of issues. First of all, the Optional Rules - this case for the moment is not being heard under the Optional Rules, though, of course, we listened to your submission on that point on Thursday - those rules remain available. For example, if you had a question between you and a consenting government which concerned the relations between the claimant and that government and did not as a necessary prerequisite involve a finding on the legality of the conduct of any other state, then the doors of the PCA would remain open. The question is whether the PCA is to act in accordance with general international principles of admissibility or not. It is not really a question for the Tribunal to decide that issue as a matter of policy. There is an issue, as we said the other day, whether the international rules of admissibility are exclusively applicable in the International Court or whether they are applicable for other tribunals. That is a question that you are welcome to address. If they are applicable to this Tribunal, then there is a difficulty and we cannot wish it away on policy grounds.
MS PARKS: Of course not. Again, I would state that a judgment of the legality of the actions of the United States is not necessary for the Tribunal to make in terms of further delineating the relationship between a government and its national. Lance has been asserting his nationality and entered into a relationship with his Government when he registered to vote with them. Notwithstanding any actions of any foreign government, Lance will continue to abide by the treaties and the constitution to which he is bound. If foreign nations disregard his nationality or try to impose their laws or to refuse entry into their country at Customs, none of that is going to detract Lance's commitment to what he sees under international law as his obligations. There are constitutions, civil and legal codes and treaties to which he is bound. Until he sees any evidence that he is supposed to follow another law, he has no choice but to follow the laws that are set forth for him to follow.
THE PRESIDENT: As a matter of international law, of course, the law applicable to an individual is not exclusively the law of that individual's nationality. If Mr Larsen had managed to get into the Netherlands, he would have been subject to Dutch law, not because of his nationality but because he was in the Netherlands. The only government which asserts jurisdiction over him by reference to his nationality is the United States Government.
MS PARKS: It is Lance's understanding and my understanding that international laws are what govern this case here and the legal dispute between himself and his Government also govern the powers that the Tribunal has to accept or decline jurisdiction. Under international laws, he sees the constitution of 1864 and the various treaties that bind him to follow Kingdom law, while other nations, specifically America, may have domestic laws that they can put forth to try to govern him or to make him an American citizen, he has never seen an international law that does that. The clarity of that situation, that there is no international legal instrument anywhere that would make him doubt his nationality is why his case has come this far and why his conviction is so strong of who he is. He has never been shown an international legal instrument that would apply in this case that would supersede any Kingdom laws, treaties or the constitution. That basic fact, it seems to me, also binds this Tribunal. Unless the Tribunal can point to some international legal instrument that casts doubt on Lance's nationality, the Tribunal is bound by those same international laws that the claimant is bound to.
THE PRESIDENT: International law of nationality and jurisdiction is not contained in a legal instrument. It is a matter of general international law. To take elementary propositions, in the Lotus case the Permanent Court of International Justice dealt with the application of Turkish law to a French national abroad and they said that in the circumstances it was not unlawful. The fact that the person was a French national in circumstances relatively extreme did not give the French captain an immunity from the application of Turkish law. It is not a question of there being a treaty on nationality or a treaty on jurisdiction, neither of those two exist. It is a question of what the general principles say.
MR GRIFFITH: Ms Parks, I was going to ask what do you tell us is a given between the parties?
MS PARKS: Between the parties they both acknowledge that the Hawaiian nationality continues to exist.
MR GRIFFITH: It would seem that your submission is that certainly the United States does not acknowledge that.
MS PARKS: And they are not a party that is necessary for these two parties to discuss their relationship.
MR GRIFFITH: You say that we can glean from the reply that you broaden the complaint to say, for example, the Netherlands would not agree with that.
MS PARKS: Our intention is not to bring other nations into this case, but the reason I mention that was to show that we ourselves have taken the focus away from legality or illegality of any United States actions. I think that in the Notice of Arbitration in the memorial we still were mentioning whether US imposition of laws was harming Lance and we are now trying to shift that focus away as we get a better understanding of the jurisdiction of this court and refocus it on the issue which is the relationship between Lance and the acting Council of Regency. There is a distinct legal and factual relationship between those two parties that we would like more clarity on. Perhaps this relationship is the focus, because this is the consenting Government. The other governments have not consented to any jurisdiction whatsoever. Perhaps, it is because the acting Council of Regency has played such an integral part in Lance in the most recent years understanding who he is and what laws he is bound to. There are many different aspects of the relationship that exist between the parties and those are the issues that Lance would like to explore further. Can he force his Government to take actions to protect him? Can he hold his Government liable for the fact that the Netherlands refused to allow him in? Can he hold his Government liable for any of the different denials of his existence that he has experienced? On some level we feel that the acting Council of Regency has taken that responsibility on as they have taken on administering on a temporary basis the sovereignty of our nation.
MR GRIFFITH: If that issue was a given, are you requesting us as a tribunal to make any determination about the given fact that the United States is an occupying power?
MS PARKS: I do not think that the Tribunal need to make a determination. They could recite that both parties are operating under the premise that the Hawaiian Kingdom is being occupied by the United States. Given that premise, such and such and such. This is a procedural issue in terms of proving facts. The burden of proof from my understanding is on the parties to prove the facts that the case relied on. If the Tribunal has doubt as to those facts, there may be a separate procedure that the Tribunal needs to raise to bring those facts into question, but otherwise, it seems to me, that, if the parties are agreeing on that fact, that there is no need for the Tribunal to review those facts.
MR GRIFFITH: What if the parties agreed that President Cleveland was still alive?
MS PARKS: We have in our opinion provided sufficient legal justification for why we agree on those facts. It represents many, many years of research that different people have pulled together in Hawai'i on this topic. It is understandable that the Tribunal may not take it at face value, given the reception that we have gotten in other courts, but it seems to me that, if the issue is really whether or not the Tribunal believes our set of facts, that maybe we could discuss that as the primary issue rather than the interests of a third party coming in. It would be helpful for the parties, I think, to get a better understanding of if the issue is really affecting America or if the issue is really that maybe our facts are not well enough substantiated or that somehow the Tribunal does not have the power to acknowledge our facts, even though we agree upon them.
PROF GREENWOOD: I think that the problem is (to use an English metaphor) that you have a difficulty of avoiding both the devil and the deep blue sea on this.
MS PARKS: We will take the deep blue sea!
THE PRESIDENT: You are probably more familiar with it.
PROF GREENWOOD: The factual submissions that you have made are fascinating. I think that I speak for my colleague when I say that we have all found them of great interest. But international arbitration tribunals exist to decide disputes. Either there is a dispute between the two parties or there is not. If there is not a dispute, there is nothing for us to decide. If there is a dispute, it has to be formulated in such a way that the subject matter of it is not the interests of a third party, unless, of course, you can convince us that the East Timor rule does not apply in arbitral proceedings at all and that we, therefore, have nothing to worry about in this area or, as Mr Dubin was suggesting on Friday morning, that the East Timor rule is actually wrongly formulated by the ICJ and that it should be a matter of prejudice that would be a somewhat different task to apply to the facts of this case. It seems to me that you are in broad agreement with counsel for the Hawaiian Kingdom that your client is a national of the Hawaiian Kingdom and that the Hawaiian Kingdom has a duty to protect him. The question is whether it has violated that duty.
MS PARKS: Absolutely.
PROF GREENWOOD: But that comes back to the legality or illegality of what someone else, who is not present here, has done. It is impossible to reach that question without looking at it.
MS PARKS: I guess whether or not the Tribunal accepts the Council of Regency as a valid party may come to the issue of whether the United States actions were legal or not. If the United States actions were legal, then why would the Council of Regency even be here?
PROF GREENWOOD: Perhaps it would help, Ms Parks, if you would clarify for us - the point cropped up in Mr Griffith's questions - what is the remedy your client is asking the Tribunal to give?
MS PARKS: We would like a declaratory judgment delineating the relationship between the acting Council of Regency and Mr Larsen. What is the extent of the acting Council of Regency's duties to Lance and does that include the absolute protection of his nationality? If it does, then it seems pretty apparent that they have violated that duty. If their duty falls short of that, then perhaps Mr Larsen does not have a case against them. That is a question to which we do not know the answer.
PROF GREENWOOD: That comes back to the problem that I just put to you. International arbitral tribunals decide disputes. They do not give advisory opinions. You have not come to a PCA as a client goes to an attorney asking "What are my rights on this subject?" We cannot do that. We cannot give advice to claimants. We can only decide disputes.
MS PARKS: I think that the dispute is that the acting Council of Regency has set forth in its pleadings that it has taken every action it knows how to take to protect Lance's nationality and that that is sufficient. Lance would argue that that is not sufficient, that until his nationality is restored they have not fulfilled their job.
PROF GREENWOOD: What is he saying they should have done and have not done?
MS PARKS: Unfortunately, he does not know the answer of what they could be doing to better protect him, but he feels that there must be something else that they could be doing that would more thoroughly protect his nationality. He respects the many acts that they have taken, filing in the Supreme Court and the other steps they have taken to try to protect his nationality, but it has not worked. He is still being denied that he even exists and he would like his Government to do something about that.
THE PRESIDENT: We talk about the devil and the deep blue sea, I think that we have probably introduced the high mountain range. The third problem is that, if you do not know what they could have done, then you have not specified the subject matter of the dispute. It is not a case of res ipsa loquitur. It is not a case where it is obvious that they have done nothing. Indeed, you said that yourself in your first round. You have to establish your case. You have to point to concrete things which the respondent could do and is refusing to do.
MS PARKS: Lance would like them to end the occupation.
THE PRESIDENT: You want us to give the defendant advice as to how to do that.
MR GRIFFITH: Is that not the essence of what you are moving towards, to say that the answer is that the occupation should be ended and your client says that the Council of Regency has the duty to do that? Is that not the real content?
MS PARKS: I think that you could flip it around, and it would sound a lot better, that his nationality must be recognised. He is experiencing a form of genocide that the world is refusing to admit that he even exists. At Customs they are saying, "You are an American". He is saying, "No, I am not". He is being denied who he is and this is the one party that is willing to help him come out of the closet and show the world who he is. He is very grateful that the acting Council of Regency has taken this on and really hopes that there is some way that they can make the necessary changes so that the world will recognise who he is. Unfortunately, we do not know enough about international law to tell them exactly what to do or we would have probably told them to do it and we would not have to be here. But he is looking for someone to protect his nationality.
MR GRIFFITH: Ms Parks, we are not in a position that we can give advice about what your client can ask for, but, as you put the submission, I would discern that the essence of his request is that he wishes his Government to ensure that the occupation by the United States ceases. Is that a fair summary?
MS PARKS: Well, it could happen in other different ways too. If other nations started to recognise his nationality, it might happen that way. It does not depend on the actions of any particular nation. It depends upon what he experiences throughout the different nations. Ending the occupation may not be the best way to do it. It may be that the Council of Regency needs to appeal to other nations first. I am not prepared to explore the different ranges of possibilities. I can understand that you guys cannot issue an advisory opinion; if you could discuss the parameters of the legal relationship between the two that might be helpful. Does he even have a right to hold them accountable for the denial of his nationality?
MR GRIFFITH: Let us go back to the pick up truck. The reality is that his complaint about that could only be remedied by the laws of the state of Hawai'i as a state of the United States ceasing to apply. Is that right?
MS PARKS: I think it would be possible to come up with other hypothetical ways to remedy that situation as well. I think that may be the most obvious but I am sure that there are other ways to approach the situation besides just stopping America.
THE PRESIDENT: If I drove a pick up truck in Hawai'i, assuming that I was allowed into the territory, and it was unregistered then I would be fined and the fact that I was an Australian would be irrelevant.
MS PARKS: Actually your rights .....
THE PRESIDENT: Why is it relevant that your client is an Hawaiian?
MS PARKS: Actually your rights as an Australian residing or visiting the Hawaiian Kingdom are protected under the treaty between the Hawaiian Kingdom and Australia, so you as a foreign national visiting the Hawaiian Kingdom would also have a case against the acting Council of Regency because they are not protecting your nationality in their country.
MR GRIFFITH: Perhaps we will have to step down and become a claimant rather than a Tribunal!
THE PRESIDENT: I will make sure not to drive pick up trucks in the future! Proceed, Ms Parks, we have grilled you quite enough.
MS PARKS: Just a few final remarks. I would like to apologise for the confusion in the legal issue that has resulted from the different ways we have rephrased our submissions starting from the notice of arbitration through the memorial, the counter memorial and the reply; and would like to say that the reply on the claimant's perspective formulates the issues in a way that does not result in a judgment that is predicated on the legality or illegality of the United States actions. The reply does attempt to specifically identify the legal issue, the claim between the parties, that is the relationship and the parameters of the relationship between the acting Regency and Lance Larsen as an Hawaiian national.
PROF GREENWOOD: Ms Parks, I am sorry, having just said we would not interrupt you again I am going to break the solidarity on that. I want to be absolutely clear about this. Are you telling us that the reply is the definitive formulation of the dispute as far as you and your clients are concerned, rather than your earlier pleadings?
MS PARKS: The submissions which are in the reply are the submissions that the claimant would like to govern over any other submissions.
PROF GREENWOOD: You will appreciate that that is a most important point; whether we agree with you about the affect of that or not is another matter.
MS PARKS: Absolutely; and I again apologise for any confusion that the submissions and the memorial which kind of leave open the United States without naming them has caused.
PROF GREENWOOD: No apology is needed.
THE PRESIDENT: If counsel to arbitrations had to apologise for confusion then arbitrations would never end.
MR GRIFFITH: Ms Parks, that is a very brief document. The last part, part 2, states the particular relief that you seek. Does that remain the relief?
MS PARKS: Part 2 of the submissions and task of the Court on page 7. I will read it on to the record so that there is absolute clarity. "Having regard to the considerations set forth in the memorial, counter memorial and the reply the claimant Mr Lance Paul Larsen requests the arbitral tribunal to adjudge and declare that (1) the acting Council of Regency of the Hawaiian Kingdom has an obligation and a responsibility under international law to take steps to protect claimant's nationality as an Hawaiian subject. (2) because the acting Council of Regency of the Hawaiian Kingdom has failed to adequately protect claimant's nationality as an Hawaiian subject it is liable to the claimant for redress of grievances".
MR GRIFFITH: Taking you to that paragraph 1, that is not in dispute; is that right?
MS PARKS: We feel that the acting Council of Regency has acknowledged that duty. I would defer to them to address that for themselves though.
MR GRIFFITH: Under claim 2 I think the position at the moment is that you merely assert that there has been a failure but you do not identify with any particularity what should be done. Is that right?
MS PARKS: That is true. I am not experienced enough in international law to know exactly what should be done. The question is is there liability? If there is liability then we can take whatever steps are necessary from there to discover what is the extent of the liability, what specifically can be forced upon them, things like that.
THE PRESIDENT: The rules of responsibility in international law are no different in this respect than the rules of liability in the Anglo=American common law systems, if Mr Dubin will forgive me for mentioning them in the same breath, which is that you have to specify the breach of the respondent with particularity. There is no such thing as liability in the air any more than there is such a thing as negligence in the air. So you have to say in what respect there has been a breach.
MS PARKS: The breach is when Lance was incarcerated because he was treated as an American citizen back in Hawai'i. The Breach is all of the tickets and the fines that are imposed upon him. The denial of his passport at the Netherlands customs. I very easily could reformulate the issues in a duty, breach, causation more of a tort type analysis. The way the international pleadings were set forth did not seem to lend to that. But the specific actions mentioned in the documents in terms of the consistent denial of his nationality. That is the breach; the failure of them to protect him in those instances.
MR GRIFFITH: It is not the acts themselves, you say it is the failure to protect him.
MS PARKS: It is not acting when they are supposed to be acting.
MR GRIFFITH: Can you just tell us how they should have acted with respect to those matters?
MS PARKS: They should have intervened in some way and prevented him from being incarcerated, perhaps taken him into custody as an Hawaiian national through whatever agent would be proper. Keanu Sai did testify at one of the hearings but it did not prevent his incarceration, so perhaps they could have filed a case against the State of Hawai'i, trying to get an injunction against the incarceration of Mr Larsen.
MR GRIFFITH: Ms Parks, are you not really saying that they should have ensured that the laws of the State of Hawai'i did not apply to him?
MS PARKS: Less important than ensuring that his nationality is recognised. If the United States is going to impose its laws at least they can recognise the nationality of the people they are imposing them on. It is the consistent treatment of him as an American citizen that is the main injury that he is suffering. He is telling people who he is and they look at him in the face and tell him he is wrong and tell him that he does not exist. That is the main injury that we are trying to find an avenue of redress for. Not so much that a law is being imposed on him or that customs deny him, but that no one will acknowledge who he is.
PROF GREENWOOD: So the main grievance is that the acting Council of Regency has failed to prevent the authorities of the United States of America treating your client as a citizen of the USA?
MS PARKS: Global authorities. Notably because the acting Council of Regency has failed to adequately protect claimant's nationality as an Hawaiian subject in the world.
PROF GREENWOOD: But the way you formulated it a moment ago was the treatment of him as a United States citizen. That is slightly different from the denial of his Hawaiian Kingdom citizenship. Let me put this hypothetical to you. You can turn up at Immigration in the Netherlands or Singapore or Japan or wherever and produce a Hawaiian Kingdom passport and get the response "We have never heard of the Hawaiian Kingdom, it is not a state as far as we are concerned, you do not have valid travel documents."
MS PARKS: That is exactly what we experienced.
PROF GREENWOOD: That is step one. Step two: "You must be a citizen of the United States" is a separate step. First of all, it is not an essential step in the proceedings. You can be turned away from the Netherlands because you did not have what they regarded as a valid travel document. They did not have to tell you where you should have gone to get a valid travel document in their view. But, if they do, then it is because the Netherlands recognises United States sovereignty over Hawai'i and, therefore, regards Mr Larsen as a citizen of the United States. It all comes back to the assertion of sovereignty by the USA over Hawai'i as a whole and over Mr Larsen in particular.
MS PARKS: Unfortunately, the Customs officials committed an international crime when they called Lance an American, because the Netherlands does have a treaty with the Hawaiian Kingdom. Lance did show it to the Customs officials. It was concluded here in The Hague. Unless the Customs officials can somehow show that that international title has been diminished unknowingly because of the perpetuation of lies that has occurred in the last 100 years, they are breaking the law. I do not think that it is their fault. They do not know that they are breaking the law.
PROF GREENWOOD: Ms Parks, I think that we should be a bit careful. This Tribunal does sit in the Netherlands and we owe a certain courtesy to the laws and institutions of the host state.
MS PARKS: Of course.
PROF GREENWOOD: I think before you accuse an official of that state of an international crime, which is quite a serious matter ...
MS PARKS: I did say that I do not think that they acted illegally because they did not know. Unknowingly they did trample on the international human rights of another national.
THE PRESIDENT: No national has a human right to be admitted to another country not his own. And you are not suggesting that Mr Larsen is a national of the Netherlands.
MS PARKS: No.
THE PRESIDENT: The notion of international crime in the context of the actions of state officials is extremely controversial. I think that we should best steer away from that. What you are saying is that they acted in contradiction to the treaty rights which the claimant asserts still exist in relation to the Hawaiian Kingdom.
MS PARKS: And it is our understanding that until notice is given that a treaty has been terminated, that that treaty still binds and the Hawaiian Kingdom has never ...
THE PRESIDENT: That is only true in relation to two states in international law that continue to exist. If a state ceases to exist - take the South African Republic which ceased to exist at the end or nearly at the end of the Boar War. At the point that it ceased to exist, it ceased to have any treaties by definition, because you cannot have any treaties if you do not exist. The United States position would be - I do not know what position it has taken with respect of succession to Hawaiian treaties - that there are no such treaties because Hawai'i has ceased to exist.
MS PARKS: But, of course, both parties are operating under the premise that the Hawaiian Kingdom does exist. I no way mean to implicate any Netherlands officials. They do not know the facts of the history of who we are. It just exemplifies our frustration in trying to live who we are in a world that has been given, in our opinion, a lot of misinformation.
PROF GREENWOOD: I am grateful for that and I think that it important that you made that point on the record.
MR GRIFFITH: Ms Parks, is it a fair summary of the very short reply to say that it broadens the aspect of specific complaint beyond the relationship with the United States and the State of Hawai'i to express it as a complaint that the acting Council of Regency has not established the status of the Hawaiian Kingdom with the rest of the world?
MS PARKS: Actually, I would say that it simplifies and brings into focus the issue between the two parties. The injury is one that is now a global injury, but the focus is not who is creating that source of injury. The focus is who is not protecting Lance from that injury. I think that the reply tries to narrow and focus the issue rather than broaden it.
MR GRIFFITH: If you say that you have to protect us from this, you have to define what the "this" is.
MS PARKS: The denial of his nationality from all other nations. That is what he wants.
MR GRIFFITH: All other nations?
MS PARKS: All other nations.
MR GRIFFITH: That is how I was seeking to express it. If I could preface my next remark by saying that I intend that to assist the parties. This article that was handed down which I have recently written (I do not think that it is yet published) does make the point I think that the UNCITRAL rules recognise the autonomy of the parties. Although Procedural Direction No. 3 raised the issue as to whether or not UNCITRAL rules were confined to a commercial dispute, the function of this article was perhaps to give some indications to say that the UNCITRAL rules are put in the public arena to be adapted by principles of party autonomy for the parties to pick up such parts as they wish, to re-write parts as they wish, to apply with respect to providing procedural rules for an arbitration of the dispute agreed by the parties to the arbitrators by some processes between them, whether supervised by an institution such as the PCA or the ICC or some other parties or not, so that the parties do have a useful and workable set of procedural rules. If that approach were correct, it might be suggested that there is no occasion to restrict the applicability of the UNCITRAL Rules to a contractual dispute or commercial dispute. That is the reason that the article has been given to you in case it is of some assistance in making submissions along those lines. Perhaps the parties could indicate if they object to the Tribunal having regard to the matters covered by the article which make propositions to that effect.
MS PARKS: Absolutely. I thank you very much and again on the issue of the rules the claimant is interested in the case moving forward to the merits. So whatever rules the Tribunal finds are more appropriate, the claimant would be willing to adopt.
MR GRIFFITH: Or speaking for your client, if the Tribunal takes the position that it is the issues of substance that are important rather than the question of which of the applicable rules, would your client be content for the matter to go ahead as has been agreed hitherto on the basis of the UNCITRAL Rules?
MS PARKS: Of course. I will summarise briefly the submissions. First, the claimant would submit that this Tribunal can exercise jurisdiction over this case between Lance Larsen and the Hawaiian Kingdom to further clarify the relationship and liability between the acting Council of Regency and the claimant. While a decision on this issue, this relationship may affect a third party, whether it is the United States or the Netherlands or any other nation, that relationship is the subject matter of the jurisdiction and the rights of any third parties is not the very subject matter of the jurisdiction. As several opinions in the East Timor case mentioned, it is up to the Tribunal to balance those interests of the third parties versus the interests of Lance Larsen. I plead today that Lance Larsen's interests are urgent, very heightened and would outweigh any potential effect on a third party. Seeing that Lance has no avenues that he is aware of to go from here to receive a fair judicial determination of his rights with respect to the Council of Regency, if this Tribunal should choose to exercise jurisdiction over this case, the reply sets forth the submissions that the claimant would like to be judged, namely whether the acting Council of Regency has an obligation to protect Lance's nationality on a global level. If so, whether the acting Council of Regency has fulfilled this obligation. Thank you very much.
MR GRIFFITH: Just on the question of the parties, you will remember Procedural Direction No. 3 indicated the issue that parties could be a matter considered on the merits rather than the preliminary issues which are raised by ....
MS PARKS: If they are intertwined, correct.
MR GRIFFITH: And Mr Dubin I think in his submissions on Friday indicated, for example, that, if the PCA Optional Rules were picked up, there would then be an immediate issue as to whether or not the Hawaiian Kingdom was a state party within the meaning of the Convention and the Optional Rules. Hitherto, as I understand it, the proceedings have been conducted on the basis that issues of identifying whether there truly are legal entities as parties to this dispute, which might be regarded to some extent as a matter of identifying the parties ...
MS PARKS: Or a question of standing.
MR GRIFFITH: And any substantive issues which are identified on page 85 of the transcript by Mr Dubin that would be necessary to be deferred for full consideration at the determination of the merits are, as I understand it, to be left over until after we consider these preliminary objections? Is that your understanding of the position?
MS PARKS: My only concern with that route is that that would implicate the requirement of the United States being necessary to ... I am sorry, can you clarify?
MR GRIFFITH: It is a question of what we are doing in these proceedings. As I understand it, they arise from our Procedural Direction No. 3 indicating that there are preliminary issues.
MS PARKS: Jurisdictional issues.
MR GRIFFITH: One was the question of the applicable rules which we seem to have somewhat resolved in the course of the exchanges. The second is the question of identifying the dispute. The third is the issue of the necessary parties, whether or not that applies. You have made submissions on each of those three matters. To that point, we have not addressed as an issue on the merits the question of, is there in fact two legal entities as parties to this dispute.
MS PARKS: There is the acting Council of Regency and Lance Larsen.
MR GRIFFITH: There is the question of the Hawaiian Kingdom as a state party, perhaps.
MS PARKS: Specifically the acting Council of Regency.
MR GRIFFITH: That has been an issue which would be held over were these procedural issues to be resolved in a way which ....
MS PARKS: I understand.
MR GRIFFITH: So that on any view my understanding is that we do not resolve all issues in this arbitration as have been raised by the parties' Arbitration Agreement as amended. Is that your understanding?
MS PARKS: Yes.
THE PRESIDENT: When Mr Griffith said "all issues", he meant, I think, all issues of admissibility. In other words, there are certain questions of admissibility which have been treated by agreement and where the Tribunal has not intervened to say, "No, we want the issues on admissibility argued". There have been certain issues of admissibility treated by agreement as matters intertwined with the merits. The question of the standing of the respondent is one of them.
MS PARKS: Of course.
THE PRESIDENT: More accurately, it is two of them, because there are two issues associated with the standing of the respondent; one is whether the Hawaiian Kingdom exists and the second is whether the person representing the Hawaiian Kingdom are entitled to do so. Those questions are matters of the merit.
MS PARKS: Yes, they are.
THE PRESIDENT: I have a second question which is whether you had a response to the question on fact finding from the Tribunal on Friday.
MS PARKS: It is the claimant's position that fact finding is inappropriate because the facts of the legal dispute are not at issue. If this court were to decline jurisdiction over this case and dismiss this case without addressing any of the substantive matters, then the claimant would be interested in the possibilities of fact finding, but would prefer to cross that bridge at that point. I hope that that is an adequate answer.
THE PRESIDENT: Yes, it is perfectly adequate. It has this implication; that is that it will not be a matter for this Tribunal, because the parties have to agree on the establishment of a fact-finding commission. The respondent in paragraph 130 does seem to have agreed, but without any clarity as to the specification of facts in dispute. You have not agreed. That being so there is no agreement between the parties.
MS PARKS: We would like the chance to sit down with the acting Council of Regency and further discuss which issues would be subject to fact finding.
THE PRESIDENT: That would then be the subject of a separate agreement within the meaning of the Optional Rules and a separate procedure. That would be dealt with on its own terms and in due course.
MS PARKS: Thank you.
THE PRESIDENT: Mr Sai, would you be in a position to respond at, say, 2.15? Does that give you enough time to prepare?
MR SAI: It will be more than enough. Would two o'clock be OK?
THE PRESIDENT: Yes. We will reconvene at two o'clock.
(Adjourned for a Short Time)
THE PRESIDENT: Mr Sai.
MR SAI: I will yield over to the second deputy.
MR DUBIN: Gentlemen, I am pleased to have this opportunity to address you again. In answer to some of your questions, we prepared a two-page summary which I would ask you to just put aside for the moment. Then we will get back to it. First of all, let me say that all of us on the respondent's side have enormous respect for Mr Lance Larsen and for his counsel, but we also have enormous differences in terms of how the issues here are viewed. Perhaps some of you may remember the painting called "The Man with the Hoe" and Mr Marken's poem "The Man With the Hoe" after that painting. The painting showed a worker slumped over a hoe in the field. I remember that the poem ended with something of the nature of "How will we answer this dumb creature's questions when he rises to judge the world after the silence of the centuries?" What we are faced with today is not the silence of the centuries, but the silence of one century. I must correct a misimpression that you three arbitrators may have from what you have heard so far. Rather than this arbitration being some kind of maybe historic evaluation of days gone by, to the contrary, Lance Larsen is just one of thousands of Hawaiian subjects, maybe tens of thousands, all of whom have different ideas as to what should be done to rectify what they consider to be a violation of their rights. The reason why the present Government of the Hawaiian Kingdom accepted this responsibility to participate in this arbitration was the belief that it provided a vehicle to get an informed opinion from individuals such as yourselves sitting in the role of arbitrators as to the situation, the facts and the law pertaining to this unique situation. In no way was this intended as some kind of a moot issue where the parties agreed on everything. Additionally, there is no attempt on our part to take your procedures and mould them into our needs. What we have to do is to take a very unusual historic situation and try to mould our situation into your procedures. Frankly, I think that it was quite a challenge, but I really do believe that we have done that. I think that there is no better way to demonstrate that to you than to take your challenge to identify the specific issues that need to be decided. If you can look at the summary that I have passed out to you, you will see on the first page that we have identified the claim that has been made, that through the inaction of the Hawaiian Kingdom Lance Larsen has experienced his problems. We have been talking about concepts like, is it possible that there could be two sovereigns and one territory? The reality of it is that the United States Government itself has recognised the fact that the overthrow of the Hawaiian Kingdom Government was unlawful. The United States itself has recognised that the sovereignty of the Hawaiian Kingdom, in fact, was never terminated. I call your attention to paragraph 372 of the memorial of the Hawaiian Kingdom Government which references the 1993 apology resolution. By the way, that apology resolution is set forth as Public Law 103-150 as Annex 31 to the claimant's memorial. In that resolution passed by both Houses of Congress and, as a joint resolution, signed by the President of the United States, the Congress goes through the history of the Hawaiian nation, it takes responsibility for the fake revolution, recognises that the wishes of the Hawaiian people (the Hawaiian nationals) were never consulted, for example, says that "whereas the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States either through their monarchy or through a plebiscite or a referendum" and officially apologises to the Hawaiian people. If that is not enough, in the recent case of Rice v Cayetano, decided by the United States Supreme Court, the Solicitor-General of the United States - and we know how important an office that is - has pointed out in paragraph 375 ...
MR GRIFFITH: Is that an annex, Mr Dubin?
MR DUBIN: Yes, it is. It is annex 31 of the claimant's memorial. Paragraph 375 is the Hawaiian Kingdom memorial. But the Solicitor-General is telling the United States Supreme Court between 1826 and 1893 "the United States recognised the Kingdom as a sovereign nation and signed several treaties with it. The United States has concluded that it bears a responsibility for the destruction of their Government" - not the nation, but their Government - "in the unconsented and uncompensated taking of their lands". What is significant about this is that this represents a judicial admission which is as binding or more binding than a stipulation, I submit to you acknowledging the continued existence of the Hawaiian Kingdom.
MR GRIFFITH: Mr Dubin, did you say annex 31, because that seems to be the joint resolution?
MR DUBIN: What I have here says annex 31. It is the memorial of Lance Paul Larsen, 22 May, 2000.
MR GRIFFITH: I have the joint resolution as annex 31.
MR DUBIN: Yes, it is the joint resolution, Public Law 103-150.
THE PRESIDENT: But you are reading from the Solicitor-General's argument in Rice -v- Cayetano.
MR DUBIN: I am. I first started out by reading from the joint resolution.
THE PRESIDENT: That is reference to Rice v Cayetano?
MR DUBIN: Since it had just been decided, it was listed, as a number of the Supreme Court cases, 98-8-18.
THE PRESIDENT: But that is not in the pleadings, is it?
MR DUBIN: Yes, it is. It is in footnote 532 of the memorial of the Hawaiian Kingdom. Also it is quoted in paragraph 375 of the memorial of the Hawaiian Kingdom.
THE PRESIDENT: Could you just read what the Solicitor-General said about it again?
MR DUBIN: This is only a part of it, but it says, "Between 1826 and 1893 the United States recognised the Kingdom as a sovereign nation and signed several treaties with it. The United States has concluded that it bears a responsibility for the destruction of their government and the unconsented and uncompensated taking of their lands".
THE PRESIDENT: That is a verbatim quotation from the Solicitor-General?
MR DUBIN: That is correct.
THE PRESIDENT: It does not actually say that the Hawaiian Kingdom continues to exist, does it?
MR DUBIN: No.
THE PRESIDENT: It says that the United States has a responsibility?
MR DUBIN: It does not say that. Actually in the joint resolution there is more the substance of that, but what is important is that the sovereignty of the Hawaiian people is now being recognised by the Government of the United States. There has recently been before Congress a bill to recognise the sovereign status of the Hawaiian people in the same way in which the Indian tribes are given sovereign within the Department of Indian Affairs. Many people in Hawai'i - many Hawaiian nationals - have subscribed to that as an alternative. That is what makes this arbitration so important, because there are alternatives, such as the sovereignty within a sovereignty. Others feel that they do not really want to wear loincloths and be known as a tribe, because the key distinction that we are advocating as a matter of international law is that the Hawaiian nation was not a nomadic tribe, but had the indicia and the recognition of a nation state. That is the key distinction as we understand it. That, we feel, is being lost in the debates today. The reason why the Hawaiian Kingdom Government re-established agreed to this arbitration was in the hope that through this arbitration that principle of international law could be clarified and then the people in Hawai'i would have guidance which they do not have today. That is the real reason why the Hawaiian Kingdom Government saw this as an important opportunity to get the judgment of an international tribunal as to those relationships, because that information/that focus is not receiving attention. Yet those who have done the research and those who have re-established the Hawaiian Kingdom Government have come to the conclusion that those are the fundamental rights of a nation state under international law that deserve to be addressed and given attention. We feel that if, in fact, we are correct and if, in fact, this arbitration can address those issues, that that will be an important step in the re-establishment of the Hawaiian Government as well as the protection of the Hawaiian nation state or Hawaiian Kingdom. That is the importance of this case. This case has nothing to do with Lance Larsen's passport. That is not even before this arbitration. It has nothing to do with what the Netherlands Government may have done in relationship to deporting him. It has nothing to do with other nations in the world. It has to do really with the role of the Hawaiian Kingdom Government in dealing with the problems that it now has with a thousand or more Lance Larsens, each with their different view of what should be done.
MR GRIFFITH: Can I ask a question about that? Is the concept of sovereignty which you address that of sovereignty over Hawaiian nationals or is it a geographical sovereignty, namely sovereignty over the entire Hawaiian Islands, including all those who are resident there, whether they be Hawaiian nationals or for the moment regarding themselves as not Hawaiian nationals but nationals of the United States?
MR DUBIN: I think that you have asked a number of questions.
MR GRIFFITH: That is true.
MR DUBIN: I think that the simple answer is both, but that does not mean that, obviously, a lot of careful consideration has not to be given to unwinding a hundred years, if someone, for example, went further than the apology resolution, went further than the Department of Indian Affairs concept, but actually said, "We apologise and we have got to do something about it". To most people that does not mean that you kick everybody out. To most people it means that you have to provide for citizenship of the people who are there if they wish it. But the international community has amazing versatility in figuring out the answer to complex problems. That would be another stage along the process. We are here because the Hawaiian Kingdom and the Hawaiian nationals need a better understanding of the position of the Hawaiian Kingdom in international law, given the complexity of the present situation. There is nothing moot about that because this Man with the Hoe, as it is, is waking up. Lance Larsen and others have thrown away the hoe and they are asking important and embarrassing questions. We are not dealing with the Nazi occupation of the Netherlands during World War Two. We are dealing with the United States of America which is attempting to deal with an embarrassment in the best way that they can. As the American people become more understanding of what actually happened, one can anticipate that there is going to be a lot of public pressure to do something about it. This Tribunal can make an incredible contribution to those choices and those alternatives in that debate by answering the questions that I posed in the handout that I gave to you. It starts on page 1 with the claim. The Hawaiian Kingdom is liable towards the complainant with respect to his injuries by allowing - I want to emphasise - through its inaction the imposition of United States municipal laws over his person within the territorial jurisdiction of the Hawaiian Kingdom. That is the claim. When you are in the predicament in which the Hawaiian Kingdom is, you have to take each claim for what it is worth. That claim may not be as well written as some would like it to be, but it has brought us here before all of you. The argument that I am presenting to you, and partly in response to your question for the parties regarding what facts would be submitted to a commission of inquiry, is to suggest to you on page 1 that, essentially, there are four major factual threshold issues that need to be resolved between the parties.
MR GRIFFITH: Mr Dubin, I do not want to take you out of order, but, having regard to the headings of these three columns, referable to the PCA Optional Rules, were the Tribunal to take the position that these questions could equally be addressed under the presently-applicable UNCITRAL rules, would you have any difficulty about that?
MR DUBIN: No, I have to tell you honestly that we are delighted to proceed under any of the three. We started with the Optional Rules because we thought that that put the clear focus, because, in order to proceed under the Optional Rules, one of the parties has to be a state. Therefore, the threshold jurisdictional issue is, is the Hawaiian Kingdom a state? That is a very important part of our work.
MR GRIFFITH: But I understood your submissions on Friday to be that that issue would come up whether you proceed under the Optional Rules or the UNCITRAL rules.
MR DUBIN: Absolutely. In other words, we have the obligation of fitting ourselves into your pigeon holes or the pigeon holes of these institutions.
MR GRIFFITH: That is not exactly right. You are the parties and you have agreed on the rules and that is the rules under which we have been constituted.
MR DUBIN: But that is the easy part of it, because each body of rules has its peculiar things. With the Optional Rules you have to have a state. Until today I thought that under the UNCITRAL rules it had to be a commercial dispute.
MR GRIFFITH: We have not ruled on that, but I think that you can take it that it does not have to be.
MR DUBIN: Well, that is fine with us. What we really wanted was the three of you and we have got you and we are trying to keep you.
MR GRIFFITH: But you defined the pigeon holes and the first three pigeons in the holes was us three who you appointed, but there is no obvious reason why it cannot proceed under the UNCITRAL rules and you make the same submissions.
MR DUBIN: No, that is fine. It appeared to us like we could not, but we would be happy to proceed under the UNCITRAL Rules.
THE PRESIDENT: The point is that even if it were the case that the UNCITRAL Rules - I mean, there is a textual problem with the UNCITRAL rules which we pointed out, but, even if it was the case that the UNCITRAL Rules on the face of them required that the dispute be characterised as commercial, that is a matter between the parties and the basic principle of the UNCITRAL rules is part of the autonomy. Between yourselves you can waive that requirement without any difficulty. The problem is that it is more difficult to waive the requirement of the consent of the third state, if there is such a requirement.
MR DUBIN: That is the issue. That is the entire issue. Can we proceed in the absence of the United States?
MR GRIFFITH: Mr Dubin, that is the issue whether you go under one set of rules or the other.
MR DUBIN: Exactly. I have categorised this first issue, does the Hawaiian Kingdom continue to exist as a nation, as a historical fact, because it had the attributes of a nation state. If one looks through the history, one can see that those attributes were never terminated.
PROF GREENWOOD: Mr Dubin, with respect, while there is obviously a factual issue there, the issue cannot be regarded simply as one of fact. It is a matter of legal characterisation of the facts. It is like the old chestnut that you set a first-year undergraduate student: the difference between fact and law in a case of tort. There are factual issues to be resolved, but the question whether a defendant is liable is a question of law. It is the application of law to the facts.
MR DUBIN: Again, after almost four decades of practising law, I once again feel that the distinction between law and fact is the conclusion of thought not the trigger of thought. For example, I do not think that there is anything that is a pure fact. Even if there is an issue as to where the vessel was when the accident took place, you would not be asking me the question unless no one was quite sure where the vessel was. What may decide that may be presumptions which are really questions of law as to how you are going to resolve them. There are things that are more factual and there are things that are more legal, but most legal propositions have factual under bellies.
PROF GREENWOOD: Can we try to tease that out a little? If the question is was this ship two and a half miles off the coast at the time or three and a half miles off the coast, which was the case in at least one of the fact-finding inquiries, the reason why you ask that question is because of the rule of law which in those days was that the extent of territorial waters was three miles. But there is still a question of fact which is where was the ship at the time? But that is a question of fact just like am I sitting here in the Peace Palace listening to you this afternoon?
MR DUBIN: But the only way you may resolve that question of fact is by applying law which would be presumptions, as, for example, who had the burden of proof? Because in the law we never really know what the facts are, it is what we decide we are going to assume and take to be the facts. Proof is what we are really looking at not the facts.
PROF GREENWOOD: All right. The means of ascertaining what the facts are - there are various rules of law about how you do that, rules on the admissibility of evidence, rules on the burden of proof. In international law, these are (shall we say?) not quite as stringent as they are in domestic law, and certainly not in the common law system. But, nevertheless, there is still a difference between an issue of fact and an issue of law and that difference is critical when you are looking at the possibility of fact finding. That is where I have a bit of a concern about the link between your first and third columns here. If you were merely using the first column to define what are the issues that need to be resolved, then I would not be disputing the point with you now, but to describe them as four major factual issues - has the Government of the Hawaiian Kingdom been re-established pursuant to its laws as a contemporary fact? Well, that is preeminently a question of law. Does the Government of the Hawaiian Kingdom have a duty to act to protect its nationals? That is even formulated as a question of law.
MR DUBIN: You are going to apply law, but you are going to be looking at the facts.
PROF GREENWOOD: That is always going to be the case. I say "always" - it is almost always going to be the case.
MR DUBIN: I agree. Unless you have pure questions of fact like the vessel situation, it gets close to it. You are always going to have mixed questions of law and fact.
PROF GREENWOOD: Mixed questions of law and fact are not generally suitable for fact finding. A fact-finding process is for finding facts. It is not for resolving questions of law and finding facts.
MR DUBIN: Let us say, for example, that you were to conclude that the Hawaiian Kingdom did exist and you were to conclude that a nation state is terminated when a plebiscite takes place which shows that the people have changed the sovereignty, for example, and there was a factual issue as to what happened during that plebiscite and actually who voted during that plebiscite. Were those people qualified to vote in terms of that standard of international law? Would you not then have agreement on the law? The issue would be what the facts were. The conclusion would be whether or not the nation state existed, but it would be based upon a factual inquiry that triggered the law which was accepted and not disputed.
MR GRIFFITH: Mr Dubin, you can never have agreement on the law. If you have a tribunal or a court, they have to take a view as to what the legal position is. They cannot be bound by the parties' agreement on what the law is.
MR DUBIN: There is no suggestion that any tribunal would be.
THE PRESIDENT: In your questions one and two you seem to be drawing a distinction between historical facts and contemporary facts. Question one is, does the Hawaiian Kingdom continue to exist as a nation state as a historical fact?
MR DUBIN: Because most of those events took place significantly in the past.
THE PRESIDENT: Yes, there is no difficulty with accepting the existence of the Hawaiian Kingdom as a state in the 19th Century, whatever might have happened at the time of the joint resolution or thereabouts, but that question seems to be formulated in terms of the present day rather than the 19th Century.
MR DUBIN: You could bring it up to 1959. We would still be in historical facts.
THE PRESIDENT: Yes, but if we bring it up to 2000. Presumably, at the merit stage it will be necessary for the Tribunal to answer question one as at 2000.
MR DUBIN: If nothing changed, that would be true. The actual date would be 1959, I think, for all practical purposes, and that was statehood.
MR GRIFFITH: Your question one really has two issues. One is was the Hawaiian Kingdom a national state, say, in 1895? One might say that that is something that can be established.
MR DUBIN: 1895?
MR GRIFFITH: Yes, as a historical fact. Then your question one is really predicated on a "yes" answer to the first question, is it not?
MR DUBIN: Yes. In other words, you can take each of these issues. That is why I called them factual issues. You can break them up. They are really sets of facts. For example, you could do fact finding if everything was clear except for the facts. But, again, honestly, we are trying to fit this unique case into the pigeon holes that we have.
MR GRIFFITH: I may have a false impression, but I understood that we had a consensus more or less that neither party wished us to go for fact finding. Is that not the case? Your paragraph 138 seemed to leave it as very much last and not the preferred choice, but, as I re-read the transcript, it seemed to me that the parties very much expressed the view on reconsideration that they felt that it was not appropriate to maintain the request for fact finding. Is that not the position?
MR DUBIN: I believe the position of the Hawaiian Kingdom Government is that we prefer to proceed under the Optional Rules because we feel that the Tribunal would then have a duty to address the jurisdictional issue as to whether or not the Hawaiian Kingdom Government was a state. We think that that gets us directly at the issue. That is why on Friday I suggested that I disagreed with the Tribunal's fourth procedural order in suggesting that you would not get to that until this other jurisdictional issue was decided. Because we think the Optional Rules actually present that issue, because you have got to have a state; failing in that, we would certainly be happy to proceed under the UNCITRAL Rules if, in fact, it was appropriate and allowable to do so. If we could not do that, then, if we could fit ourselves under fact finding, we would be happy to go and do that, too, because the fourth alternative is the exit door.
THE PRESIDENT: But, in fact, the effect of what Ms Parks said this morning was that, in the event that the Tribunal were to decide that the case could not proceed either under the UNCITRAL Rules or under the Optional Rules as an arbitration, that it would then be a matter for the claimant to sit down with the respondent and talk about the possible constitution of a commission of inquiry for fact finding, though that would not be part of these proceedings. Since it requires the agreement of both parties to do it, that position seems to dispose of the question in so far as these proceedings are concerned, whatever your attitude is. That is a question.
MR DUBIN: What is the question? We would be happy to proceed under a fact-finding rule.
THE PRESIDENT: The question is, do you agree with the proposition that it would be necessary for the parties to be ad idem, that is to have an agreement on submission to fact finding?
MR DUBIN: Yes, I would. Let me just go back to the decision path on page 2. We felt that the logical order of progression would be a determination as to whether the Hawaiian Kingdom continues to exist and has the Government been re-established. Then does the Hawaiian Kingdom have a duty to protect its nationals in avoiding the unique situation that we are in. Then, furthermore, outside seeking help in the international community.
MR GRIFFITH: You say in your submission that the answer to questions one, two, three and four is "yes". Is that your submission to us?
MR DUBIN: Yes.
MR GRIFFITH: The claimant would say that, too. You are agreed on that?
MR DUBIN: I believe that the claimant has said that.
THE PRESIDENT: So it is only question five on which there is disagreement?
MR DUBIN: Yes, but you cannot get to question five unless you go through this logic. I tried in this chart on page 1 of my handout to argue that you could proceed to look at each of these issues under either the Optional Rules, certainly the UNCITRAL Rules, or even fact finding. I looked through the fact-finding cases and at least the reasoning of those cases was more involved there than just pure fact finding, as far as I could see it, but the real issue, as we know, is this phrase "the very subject matter of the dispute", because, when Monetary Gold, East Timor and Nauru were decided, the International Court of Justice reasoned using this standard "the very subject matter of the dispute".
MR GRIFFITH: I think that it was only in East Timor that they got to that. It was a progression.
MR DUBIN: That is right. Then they referred back to the other cases and brought them into that rubric. I just wanted to summarise for you that everything in our case comes in five. I want to summarise for you the five reasons why we believe that this language "the very subject matter of the dispute" - and, by the way, sometimes it just says "subject matter" and sometimes it says "very subject matter" - should not be a bar to our proceeding forward. First, as you know, I have tried to distinguish the cases, because I, frankly, do not feel that the three cases that we have looked at had to be decided on that rationale in the first place and that this phrase "very subject matter of the dispute" is to me not a very satisfying standard and I doubt that it will be around much longer as we get more and more cases in this area. First, I tried to distinguish those cases. I think that it is important to understand that, contrary to the implications and the questions that Professor Greenwood was asking Ms Parks, we feel that the arbitration could proceed on the assumption as to whether the Hawaiian Kingdom is not performing its duties by not appropriately challenging the legality without concluding itself that the occupation was illegal. It is not really illegal or legal, it is illegal or legal or maybe illegal. That is the first thing that we were trying to do with this "very subject matter of the dispute" language - distinguish the cases. The second thing that I tried to do was to reject the reasoning and suggest to you that I find it much more satisfying to use the standard of prejudice. At least in these cases they are all prejudice. Theoretically, there would be no prejudice in the United States, except I understand that sovereigns in the international community should not have their hands slapped, so maybe it would be taken as a hand slap. Obviously, if this Tribunal decided that the occupation of Hawai'i was illegal, they are not going to start dismantling Pearl Harbour. The third attack that we have on this "very subject matter of dispute" language is that we can apply these cases and still go forward. Now I have provided you with what I think is the best given that you could come up with - and that is a stipulation by a party that they acknowledge that the overthrow and the takeover was unlawful. They apologise for the takeover and they have a bill to recommend - and the President recommends it - that we create a dual sovereignty and give the Hawaiian people some form of sovereignty just like an Indian nation. In the law a judicial admission is stronger than an admission or a stipulation. Here we have the United States Governments making a judicial admission in an active case in the United States Supreme Court just a few months ago, so we feel that, even if you do take these cases seriously, as we have to, I suppose, like East Timor, we have a given which was certainly much better than the given that was argued in that case. It was not satisfactory. We have the mother of all givens.
MR GRIFFITH: Mr Dubin, usually to bind a party with an admission, you have to have them as a party in the proceedings.
MR DUBIN: That is true except that here we have a judicial admission, which means that that became part of the case. If the United States Supreme Court, for example, had said that Hawai'i is an independent sovereign state, then we could have taken that, I suppose, as some sort of higher authority for this Tribunal to rely upon.
MR GRIFFITH: But the United States Government could say in an international tribunal that they got it wrong.
THE PRESIDENT: More likely they could say that what they said did not go as far as you had presented it, in the sense that there are certainly admissions in the joint resolution or Public Law 103-150, but they do not go so far as accepting the continued existence of the Kingdom of Hawai'i.
MR DUBIN: I am not sure that the language really cannot be read to go that far.
THE PRESIDENT: I am sorry, Professor Greenwood has been seeking to ask a question for about five minutes and I can restrain him no longer.
PROF GREENWOOD: Do you want to finish your five and then I will come back to you?
MR DUBIN: The fourth answer that we have to the "very subject matter of the dispute" is that there is enough here to, we believe, conclude that the jurisdictional issues are so intertwined with the merits that the matters ought to be looked at together. There is a web of treaties, declarations, agreements, reliances, estoppels, admissions and apologies that have not stopped, such that the merits are so intertwined with this that we should not conclude yet that the "very subject matter of the dispute" is a bar. Fifth, if fact finding were to allow us somewhat more flexibility, we would certainly be willing then to retreat to a fact-finding inquiry by commissioners. Those are my five arguments.
PROF GREENWOOD: Might I get back now to my question? The problem, it seems to me, that you have is that, even reading the apology act in as extensive a way as possible, it still, surely, falls far short of an acceptance by the United States, even if it were an acceptance on which we could actually act, given that the United States is not here before us, of the sort of matters that you raise in questions four and five. It is certainly not an acceptance by the United States Government that its occupation of the territory amounts to national genocide. I think that it would be fair to say that it is not obvious to me, at least, that in the statements that you have read to us the United States Government has acknowledged that its imposition of US municipal laws over the people within the territorial jurisdiction of the Hawaiian Kingdom is an unlawful act. If you look at that fifth question, which you frankly told us is the only one of the five you have outlined on which there is a difference of view between the parties in this arbitration - and I hope that Ms Parks will make clear to us if she does, in fact, disagree with you about anything to do with questions 1 through to 4 - but, if you look at question five - is the Hawaiian Kingdom liable towards the claimant with respect to his injuries by it allowing through its inaction the imposition of United States municipal laws over his person within the territorial jurisdiction of the Hawaiian Kingdom? - the Hawaiian Kingdom could only be liable in respect of the imposition of the United States municipal laws if the United States is not entitled to impose its municipal laws. If you then turn to the passage at the top of page 33 of Monetary Gold - I ought to be reading it in French because it is a judgment given in French, but I am afraid that my French pronunciation is such that ----
THE PRESIDENT: Please don't.
PROF GREENWOOD: - I think that it would be better if I did not. The top paragraph on page 33 says, "It is also contended that any decision of the court on the questions submitted by Italy in her application would be binding only upon Italy and the three respondent states and not upon Albania. It is true that under Article 59 of the Statute a decision of the court in a given case only binds the parties to it and in respect of that particular case. This rule however rests on the assumption that the court is at least able to render a binding decision. Where, as in the present case, the vital issue to be settled concerns the international responsibility of a third state, the court cannot without the consent of that third state give a decision on that issue binding upon any state, either the third state or any of the parties before it". My question for you is, does question five not raise exactly this issue, the vital issue to be settled concerns the international responsibility of the third state? Because, absent that responsibility, the Hawaiian Kingdom has no liability to Mr Larsen?
MR DUBIN: No, because it could have liability for not challenging the illegality of the United States presence in the Hawaiian territories. Secondly, this conclusion did not need to be drawn from the facts of the Monetary Gold case. So I suppose many times like in the common law it depends which case gets there first. Let us assume that the Hawaiian Kingdom case had gotten there before Monetary Gold. A different distinction might have been drawn. Then the Monetary Gold case would have come up. Then somebody would have read the reasoning in the Hawaiian Kingdom case and then said, "Well, you can easily go and affect the third party". Then someone would have had to say, "Well, the Hawaiian Kingdom case was different". I submit to you that the Monetary Gold case could have been resolved without getting into this broad language at all and does not really address what we have here. What we are saying is that the claim here is that the Hawaiian Kingdom Government is not doing what it should do in order to challenge the lawfulness of the United States.
PROF GREENWOOD: But, Mr Dubin, the fact that the court could have decided the case on a different basis does not in itself invalidate the decision that it did not take, particularly given that it has reaffirmed that decision in two subsequent cases, one of which falls on one side of the line and the other on the opposite side.
MR DUBIN: But even in those cases the facts could have led to a result which would have been the same but not for the same reasoning. There is nothing logically or from a fairness point of view offensive in the notion that a national can argue that his Government is not challenging an occupation that has all the indicia of legitimacy. That issue being decided without having to decide whether or not it is actually legitimate, because, especially in the case where the occupying power or the new sovereign, let us call it, apologises for the overthrow, that even suggests the possibility of dual sovereign status. If you were a national of that state, you might not be satisfied to have distributed to you loincloths and become a part of the Department of the Bureau of Indian Affairs. In truth what is happening here is exactly what I am talking about. The question is, of course, to what extent efforts have been made by the re-established Hawaiian Government? In fact, this is one of the efforts that is being made.
PROF GREENWOOD: I will not interrupt you further on it, I have the submission. Thank you.
MR GRIFFITH: Mr Dubin, if we are on column five at the moment, I think Ms Parks's submissions were that something should be done to protect Mr Larsen. Do you have any submissions to make in denial of that claim?
MR DUBIN: I suppose maybe, if we do not succeed here, they could argue we did not do a good enough job.
MR GRIFFITH: The question is that it is put that unspecified actions should be taken to protect Mr Larsen. Part of the exchange with the Tribunal was, in effect, to ask whether in essence that meant to take action to remove the occupying power. I think that that was one of Ms Parks's propositions in the end. Inasmuch as the respondent denies liability with respect to any content of the duty that has been breached, is there any specific content to say that, inasmuch as Mr Larsen is a national, which is agreed, the duty runs so far and no further, when we do not know what the content is of what is alleged not to have been done or what is denied as an obligation?
MR DUBIN: It is not our position that we should remove the United States from the Hawaiian territory. That is not the responsibility of the Government. But we do accept responsibility as the Government of the Hawaiian Kingdom to secure the recognition of the continued existence of the Hawaiian nation.
MR GRIFFITH: And do you submit that you have done all you can or do you say that this proceeding was part of that?
MR DUBIN: I suppose that, if we do not win here, then Mr Larsen could criticise us for doing a bad job.
PROF GREENWOOD: I am sorry, I do not see that at all. If you do not win here on the merits, then that can only be because Mr Larsen has won. So how could he possibly regard that as a case of you not having done your job sufficiently?
MR DUBIN: No, I am talking about jurisdiction, not the merits.
PROF GREENWOOD: I am still a little puzzled, because that suggests that you regard these proceedings on the part of the Hawaiian Kingdom as being one of the means by which you discharge your responsibilities to Mr Larsen.
MR DUBIN: I think that one of the ways in which we discharge our responsibility is by defending to show that we have taken action and in the process establishing the legitimacy of the Hawaiian Kingdom and its re-established Government. That would be one of the ways in which we would show that. In conclusion, I think that I would submit to all of you that this is a very unique case.
MR GRIFFITH: That is not possible, Mr Dubin. You can have unique or not unique, but you cannot have "very unique".
MR DUBIN: Then how can you have the "very subject matter of the dispute"? This is a unique case because it falls between the situation that may be moot and the situation that may require the presence of the United States as a party. We tried to design our part of the arbitration so that it did fall in the middle, although there are many people in Hawai'i (nationals, sympathisers with Hawaiian causes) who would like us to do so, but we have tried to steer a middle course on that issue. It is unique because the Optional Rules, the UNCITRAL Rules, the fact-finding rules, seem to fit, yet they do not seem to fit. It is unique because in a way in the Nauru case, the Monetary Gold case and the East Timor case the reasoning all seems to suggest that you cannot do it without the United States being there, but, if you look at those cases and the way in which they were decided and the fact that there is no interim relief being sought here, there is no resulting interference with absent third party contractual relationships, this is a unique case. One of the problems with unique cases is that tribunals can sometimes go either way. All I can suggest to you is that this is certainly not an intellectual exercise. This is a very important issue nationally so far as the confines of the United States are concerned. It is important to the Hawaiian nationals and it should be important to the international community. That is the downside. The upside on the unique cases is that they tend to put in bold relief and perspective. In some cases, such as Monetary Gold and East Timor, it is just taken for granted. I think that we have gone the entire spectrum. We have come very close to a given. If the only given is a decision by the International Court of Justice, then, once again, you might as well throw away the concepts of a given, because, if you had a decision by the International Court of Justice, you would not have to refer to givens. I think that we have come pretty close to answering your questions factually and legally concerning whether you have jurisdiction to proceed.
PROF GREENWOOD: Am I right in saying that the essence of your quest, if you like, is this, that you acknowledge that on the one side is the whirlpool of dispute, which is not really a dispute at all and it is moot, on which we therefore cannot pronounce, on the other side is the rocky shore of a case that cannot be decided in the absence of the United States? Is there, in fact, a way between those two? If there is a way between those two, have you actually brought yourself within it? Have you found that path?
MR DUBIN: If we have not, we have come pretty close in the last couple of days, because we are not asking for an adjudication that the United States occupation is illegal. I think that that is a major difference. I think that we are sailing between the rocks.
MR GRIFFITH: If I have understood your submissions, including these tables, it is in the context of an understanding by all present that this hearing is for the purpose of addressing the preliminary issues raised in our Order No. 3 as further addressed in Order No. 4 to deal with the issues of admissibility to the extent of arbitrability and also the issue of necessary parties, with the further matter of applicable rules also raised, which I think that we can put to one side for the moment. For myself, I hear your submissions on these issues, including this table in the context of responding to those issues. Is that your understanding as well?
MR DUBIN: That is correct, although we are at a little disadvantage, because we do not have the time and it was not in the procedural orders to present the merits of the case.
MR GRIFFITH: It is not a question of not having the time. We are happy to sit here for a week or a month to let the parties argue exhaustively all issues, but it is in the context - speaking for myself, and I will let the President express it in his own way for us all - that it is my understanding that the submissions by both parties in the last three days have been for the purpose of assisting us to determine these preliminary issues which were identified and set down for hearing. We do not want it to be thought for a moment that the parties have not had an opportunity to put all arguments that they wish on those issues. For myself, I will cancel my flight to Australia on Wednesday and stay here until Christmas if the parties feel that they need a further opportunity to present their arguments.
MR DUBIN: No, I was just saying that we feel that the merits are intertwined with the jurisdictional issues.
MR GRIFFITH: Of course, I understand that.
MR DUBIN: And you have a better understanding.
MR GRIFFITH: That is how, listening to you, I am regarding these submissions, that, in the context, I understood on Friday you submitted that, if we took the Optional Rules, we may have to advance consideration of this issue of the merits that you identified on page 85 of the transcript, issues which must be determined as part of a resolution/determination of the merits, but I understood those submissions to be made in the context of assisting us to decide these preliminary issues and that my understanding is - and I hope the position of the parties also is the same - that it is not the function of this hearing finally to determine all issues on the merits.
MR DUBIN: Correct.
MR GRIFFITH: That is your understanding.
MR DUBIN: Mr Sai is here and he was going to follow up, if you desired it, and go through this issue of the continued existence of the Hawaiian state in terms of the merits.
MR GRIFFITH: That is very useful and I must say that I found the summaries in the memorials and also the presentation on Friday a great help in bringing to the forefront of my attention this, as I could call it, very solid history.
THE PRESIDENT: Mr Dubin, obviously international tribunals have some discretion as to which points they take and in which order. The point of our procedural orders was to exercise that discretion to identify certain issues and not others. There were some other issues that might conceivably have been taken as preliminary questions, but we tended to agree with your position that those issues, in particular the continued existence of the Hawaiian Kingdom, was so intertwined with the merits that they were better not taken as preliminary issues. In any event, that is the way in which we have done it. Whether we get to those issues and in what subsequent order depends on the outcome of these proceedings.
MR DUBIN: We feel that by applying acknowledged principles of international law and the reasoning in the acknowledged text to the factual history which is not in dispute, one could conclude that the Hawaiian Kingdom as a state had never been terminated. That does not necessarily mean that the occupation of the United States is illegal. In fact, the United States has offered sovereignty now to the Hawaiian nationals in a certain form. In fact, the United States recognises, I think, hundreds of Indian tribes that have a sovereignty within a sovereignty.
THE PRESIDENT: Just as a matter of interest, would the recognition by the United States of the Hawaiian Kingdom as having the same status as the recognised tribes be consistent with Rice v Cayetano? I do not ask this because I think that anything hangs on this, because I do not think that anything does.
MR DUBIN: Some people would say that it was not, but the concept there is self-determination. We reject the concept of self-determination because we are coming from the perspective of a nation state and not a nomadic tribe that needs the auspices of the General Assembly to protect it so that it can have self-determination. There already was self-determination.
MR GRIFFITH: Mr Dubin, going back to your reference to not having the time, I am really most concerned that we do not adjourn without the parties making it clear either that they require more time or that they accept that they have had all the opportunity that they need to make written or oral submissions to us or, if they require an opportunity to make closing written submissions within a reasonable time after this adjournment, if they could indicate if they wish that opportunity.
THE PRESIDENT: I was, of course, going to ask those questions and have that discussion when your submission was concluded, but, obviously, that is matter of which the Tribunal as a whole would need to be satisfied, that both parties felt that they had had adequate opportunity to present their case on the issues identified in Procedural Orders Nos. 3 and 4. We could also have a discussion on whether either of you feel that a further opportunity for written submissions within a fixed and not too long a period of time would be useful. I simply note that. Perhaps you could finish your submissions on any remaining issues and we will come back to that right at the end.
MR DUBIN: I just wanted to say that I have to talk to my colleagues regarding that, but I think that we would like the opportunity to show that the Hawaiian Kingdom continues to exist as a nation state as a basis for satisfying the requirements of the Optional Rules.
THE PRESIDENT: The position on which the case has proceeded so far is that the parties, having sought to agree to submit the matter to arbitration pursuant to or under the auspices of the Permanent Court of Arbitrary, eventually agreed that it would be submitted pursuant to the UNCITRAL Rules, though they have both indicated their preference for doing so under the Optional Rules. It is an issue in this phase of the proceedings whether there is any difficulty about proceeding under the UNCITRAL Rules. If the Tribunal were to come to the conclusion that the UNCITRAL Rules were unsuited for these parties by reason of the nature of the subject matter or whatever other reason and that the Optional Rules were the better vehicle, there might then arise a question whether this issue was arbitrable under the Optional Rules and we would not decide that issue without giving you an opportunity to make that demonstration. That is a contingency at present.
MR DUBIN: As the Tribunal knows, we started out under the Optional Rules, then it was suggested that we should proceed under the UNCITRAL Rules and then we changed it.
THE PRESIDENT: You say "started out", but what happened was that the Permanent Court of Arbitration, as I understand it, was not prepared to act as the supervising authority except on the basis of the submission under the UNCITRAL Rules and the parties proceeded on that basis, affirming, nonetheless, while doing so their preference for the Optional Rules. The question of that choice is still open, but, nonetheless, the proceedings have gone on on the basis of the UNCITRAL Rules. Mr Griffith has pointed out that if and when the Tribunal were to get to the merits the same issues of merits would have to be resolved. I do not think that anyone denies that, to the extent that questions are admissible between the parties, whether they involve the continued existence of the Hawaiian Kingdom, the validity of your retainer or any other delicate questions, those issues would have to be resolved either under the UNCITRAL Rules or under the Optional Rules, so neither party is prejudiced in that respect by the choice of rules, although we understand your preferences.
MR DUBIN: Are there any other questions that the panel has?
THE PRESIDENT: At the moment the Tribunal is going to adjourn for five or ten minutes because I think Ms Parks may need, if Mr Larsen does not mind being rung again, just to confirm - at least she needs to consider herself whether she is in a position to respond to the questions that I am going to raise and what the response should be. Before we get to that, do either of my colleagues have any further questions on the issues? [No response] Mr Sai, is there anything else that you wanted to say on the issues that we have debated over the last three days, subject to the question of possible written post-hearing briefs to which I will come in a moment? Is there anything else that you needed to say today?
MR SAI: Yes, I would like the opportunity.
THE PRESIDENT: Good. Mr Sai.
MR SAI: Good afternoon, Mr President and members of the Tribunal. Before I begin I would say that I have had a lot of time to reflect on what has been happening through the proceedings, trying to come to clarity as to what are the specific issues as they relate to both the rules as well as the jurisdictional issue. Listening to what has been happening, I felt that it was imperative that I need to present another side to the story, I believe a side that was not presented. That is not one of an emotional sense, but rather on a previous understanding before the arbitration actually began, as I am the agent representing the Hawaiian Kingdom, but I am not an attorney. I am more of a historian. My job is acting Minister of Interior. A lot of these arguments were based upon issues of law, but yet the jurisdictional issue is really interwoven with some of the merits, as the primary concern is the continuity of statehood. One of my biggest concerns here, as the agent representing the Hawaiian Kingdom, is that there seems to have been a blend between occupation and de facto status, in a sense placing the United States as a sovereign state on an equal footing with the Hawaiian Kingdom as a sovereign state within one and the same territory. That there must be a point of demarkation. What came first - the chicken or the egg? In this regard I wanted to share and submit some of my thoughts on a matter of international law, again subject to the Tribunal's expertise and professionalism. I believe that the concern for the United States and its statehood and the effect to itself as a state should be equally applied to the Hawaiian Kingdom. 1893 and 1898, which are really the main points at which we are looking, we are not really looking at today. I think today is more of a consequence of the past. We are really looking at ramifications. But during that time in 1893 and 1898 it was clear that Hawai'i was a state as defined by the Montevideo Convention. Yes, it did have a government; yes, it did have a fixed territory. As we stated in our memorials, we actually went into the square mileage, the latitude and longitudes, and not basically seeing it as an expression of Hawaiian sovereignty, but actually referring to declarations made before certain resident ministers citing what were these Islands, the three-mile limit that extended around each of the Islands and also the four additional Islands that were acquired through the doctrine of discovery during the era of the Hawaiian Kingdom as an independent state. It was clear that in 1893 and 1898 the Hawaiian Kingdom was not a vessel state of any other state, it was not a dependent state of any other independent state and I believe most of all the Hawaiian Kingdom was not a non-self-governing territory, which would fall under the category that we call today self-determination, which is synonymous with decolonisation.
THE PRESIDENT: I am sorry, Mr Sai, just as a point of historical interest, you mentioned four islands discovered during that period. I take it they were discovered by people from the Hawaiian Kingdom and the Hawaiian Kingdom took advantage of the doctrine of discovery to acquire additional Islands. That is interesting. I did not know that.
MR SAI: It is actually fully stated in the memorials. It goes to the exercise of Hawaiian sovereignty, the doctrine of discovery. In a sense, you might say that the Hawaiian Kingdom actually began the colonisation process in these Islands while they were uninhabited., But, again, they still were acquired. I am sure that these Islands were considered terra nullius, which allowed the Hawaiian Kingdom to acquire by discovery as they had no other claim from any other independent state.
MR GRIFFITH: Mr Sai, did you say that you are not a lawyer?
MR SAI: I was a former military officer and I never move on speculation, I need intelligence reports before we seize an objective. I need concrete facts. I do have common sense, though, and I hope that helps me.
THE PRESIDENT: Let us hope that you do lose it in your acquisition of further legal skills!
MR SAI: The issue of the Hawaiian Kingdom as an independent state was not dependent upon any other state to be independent, but rather was dependent upon the Hawaiian Kingdom itself. That is what brought forth the 1843 Anglo-Franco proclamation. That was not brought about by the United States assisting the Hawaiian Kingdom to have some type of legal relationship or political confederation, yet, indeed, the Hawaiian Kingdom did possess an independent personality from not just the United States but rather all other independent states. That was distinguishable by its distinct population, by its Government, which at this time was constitutional in form, by a fixed territory and also the ability to enter into international relations, as I tried to show in the Powerpoint presentation on Friday. These all go to the exercise of basically Hawaiian sovereignty as an independent state. The question of occupation really is an aftermath in regard to statehood. Only by using statehood as a backdrop can really occupation become understandable. And not necessarily occupation will determine if you have statehood, but rather, if you are an established state, the presumption is that you are still a state during occupation. Whether that occupation is legal or illegal - and I submit legal in the sense of according to the Hague Conventions - we would not be here if the United States administered Hawaiian Kingdom law. Mr Lance Larsen would not be arrested for driving his vehicle according to Hawaiian Kingdom law if the United States was adhering to the Hague Convention and the laws of occupation. Rather what we find is that the United States has never expressed itself as an occupier. Who would? That is an admitted. You would never get it. For us to try to look into areas of contemporary judicial documents or statements or joint resolutions, it will not be self-incriminating for an occupier. Therefore, I have to assume that they will never admit to occupation. Yet to admit to occupation is in a sense to admit to the continued existence of the Hawaiian Kingdom as an independent state, which is really the crux of the matter, which is actually what is holding up, you might say, this issue to be resolved between a national and his government. The underlying question would be does the Hawaiian Kingdom continue to exist as an independent state, thus the legal order, thus the re-establishment of the Government, thus the relationship between its nationals.
THE PRESIDENT: To be slightly unkind but thus the issue in rem, the point is that, if the Hawaiian Kingdom continues to exist, its existence is in rem. It is not in personam. The Hawaiian Kingdom does not exist solely in the opinion of Mr Larsen. It exists. That is the problem.
MR SAI: Correct. But that existence should not be dependent upon an occupier, because you basically put the occupier on an equal footing with the Hawaiian Kingdom in its own territory. Really what needs to be addressed is what came before the occupation, whether the statehood or whether the legality or illegality of the Hawaiian Kingdom, not the illegality or legality of the United States as an occupier, but rather the Hawaiian Kingdom, has it met those particulars of international law that would warrant its continued existence, irrespective of any action taken by a third party upon that sovereignty. I believe that the principle of international law is really the equality of states and that, as the equality of states comes into being, I believe that the United States cannot be construed to have an equal right within another state's territory, but rather they are equal within their own territorial jurisdictions which affords the international relations that come either through trade agreements or actually war - but at least the war is somehow regulated. I am anticipating, Mr Griffith, that you have a question.
MR GRIFFITH: No. I am just listening with interest as you seem to read without notes.
MR SAI: Should the Tribunal find that it has jurisdiction, we are prepared to submit an offer of proof as to the merits of this case to show the web of international treaties, declarations, agreements, reliances, admissions and apologies. I have to stress that, in order to determine Hawaiian statehood, it actually should be determined by the Hawaiian Kingdom's actions and not by anyone else. If those actions met within the confines of international law, then I believe that the presumption of that continuity of statehood could withstand any type of occupation, whether belligerent, non-belligerent or prolonged occupation as we have today. In that regard we come from the presumption that the Hawaiian Kingdom continues to exist but yet in the face of the world everybody assumes or the presumption is that the United States exists in our country. Yet nobody has ever taken it previous to the occupation. It was always assumed post-occupation. We cannot stop what an occupier can do. That is not really in our best interests and our people did find that out when they began to occupy us after the Spanish-American War. You had the most heinous criminal in the Hawaiian Kingdom made its governor. That governor now wielded life and death and executive authority. What our people are actually coming out of is a mode of survival and, as we come out of survival, we are now realising the legal responsibilities that apply to a nation state and not to what we have been taught or told that we are a non-self-governing territory seeking self-determination and, thus, you have the creation of the state of Hawai'i. Now they are trying to reinvent the wheel of self-determination by now trying to convince the native Hawaiians that it is an indigenous matter that falls under the self-determination process of the UN decolonisation, which we find does not apply, but it is all from one side. You do not hear this ever coming from the Hawaiian Kingdom. If you do hear it coming from certain individuals who may refer to themselves as Hawaiian, they are not referring to themselves as Hawaiian nationals, but rather they think they are indigenous people seeking the rights of self-determination within Article 73 of the United Nations Charter. We felt that this Tribunal would offer some clarity so that for the first time we have a third party to which to present these types of merits, that can be scrutinised by international law rather than taking it before a United States tribunal which could not rule on it to the detriment of itself. You do not walk into the court of a criminal and declare that person a criminal. In that sense there is really no other way to address this issue and the opportunity did arise, because it was Mr Larsen who was adhering to Hawaiian Kingdom law and, if the United States was adhering to occupation, not whether they are illegal or legal, but, if they were adhering to the laws of occupation, we would not be here right now. We would probably have addressed the issue of ending the occupation through diplomatic process, but we do not find ourselves in that situation. If the Tribunal feels - and I strongly submit - that they can address the issue of Hawaiian statehood without the United States, because you are looking at Hawaiian statehood before the occupation, whether the occupation was legal or illegal, and whether international law safeguards the continuity of a state during occupation ... If I may, I will take a statement from Professor Merrick. There is not too much literature on states that have been extinguished, but there is a lot of literature on states that have been created. The creation of a state in the 20th Century was quite different from how it was in the 19th Century. I believe in the 19th Century it relied more on recognition and basically sponsorship into the family of nations, whereas the 20th or 21st Century relies more on not just recognition but actually acceptance, exercise and those kind of things. May I ask a question that I think might need some clarity. Is Professor Merrick a woman or a man - Christina Merrick?
THE PRESIDENT: She was a woman. She is now dead.
MR GRIFFITH: Mr Sai, if you are a lawyer you can only quote someone as an authority if they are dead.
THE PRESIDENT: That used to be the case, it is not any more.
MR SAI: She explains that where a law breaking attitude of the occupying power makes it possible for the legal order of the occupied state to retain a certain amount of effectiveness in the occupied territory, or, as in our case, whether in disregard of the Hague Conventions the occupant eliminates even the last traces of that effectiveness, the continuity of the occupied state is safeguarded, not by an act of will by the occupying power but by a clear objective rule of international law. That is what we are basing our existence on. Not the will of the occupier through its apology resolutions, through its amicus curiae with Rice -v- Cayetano; what we are relying on is international law, safeguarding our continuity as it was Her Majesty Queen Lili'uokalani and our former countrymen who were also relying on that higher order to protect them against the attacks made by the United States. Granted the United States did not invade Hawai'i, it was not like the Dutch and the invasion by the Nazis; rather we were basically muscled as a neutral state to fight another belligerent in Guam in the Philippines. That could have been a lawful occupation, but lawful does not mean that it is permanent. It is supposed to be provisional, they were supposed to have administered the laws when they occupied Hawai'i. They did not; instead they created puppet governments and puppet states which were unilaterally done by the United States legal order, but has no connection to the legal order of the Hawaiian Kingdom under its existence as a state. One last point that I wished to make is also a quote from Professor Merrick. Since the law relating to the continuity of the occupied state is clear and unequivocal acts of the occupying power which are not in accordance therewith are clear violations of international law. We are not taking the whole of that quote but rather the first part. We are not here to address the actions taken by the occupying power, I believe both parties are bringing those points out as far as clarifying what is the real issue. But rather it is the continuity of the occupied state which had to have existed before the occupation occurred. That is the area that we would like to present as far as an evidentiary hearing to substantiate that continued existence. We have prepared witnesses. We have custodians of records who will authenticate the treaties and declarations made by the Hawaiian Kingdom. We have experts ready on Hawaiian history, on Hawaiian demographics and the breakdown of the population. We have experts on US municipal laws who will testify on the legality of the United States. We also have experts on estoppel and the legal effect of agreements between heads of states as we presented on Friday that agreement between Lili'uokalani and President Cleveland. And finally we also have experts on trust and contract law as it relates to the restoration of the Hawaiian government by and through a Hawaiian Kingdom trust company, a general partnership. Very extraordinary means because we are in a very extraordinary circumstance.
MR GRIFFITH: May I ask you about that, Mr Sai; perhaps it is not appropriate to ask you if you disclaim being a lawyer, but if there was continuity why was there a necessity to reconstitute yourself as a trust company?
MR SAI: I am glad you have brought that up, sir. We did not intend to reestablish the Hawaiian government. What we did intend, and it is reflective in the memorials, was to follow Hawaiian Kingdom law much in the same way as Mr Larsen. In that respect we wanted to establish a general partnership to do title research called Perfect Title Company. Now Perfect Title Company was established in accordance with the laws which met the criteria of filing in the bureau conveyances which would meet that requirement. According to the statute that we fell under it was an Act of 1880 that required all general partnerships to register within, to generalise, the executive branch of government. Once we had registered it was pretty much a unilateral act. We had to make it a bilateral act to consummate our adherence to the law of registering partnerships. There was no one there accepting our registration. It was basically a statement that was following the law.
MR GRIFFITH: You just said under the pre-existing Hawaiian Government Act.
MR SAI: Yes, under the Act of 1880. Since that time there was no Hawaiian legislature to reconvene to amend or repeal that Act.
MR GRIFFITH: And was there any continuing registry or anything?
MR SAI: What is very ironic is what we have in Hawai'i. The United States did not create a legal order, what they basically did was just capitalise on what was there, so the bureau of conveyances that exist today was established by statute in 1845. That same physical body is still there today with land records that go back to 1845. So we were basically following our laws, but you might say there was a different gatekeeper at the gate. We were not in a position to argue with the gatekeeper, given the situation, so we basically were adhering to the laws not because of the gatekeeper but rather because of our obligation to follow the law in accordance with our civil code. As a result that provided a necessity to create a proxy of the Hawaiian Kingdom government by its executive branch through what was called the Hawaiian Kingdom Trust Company, to merely serve as a vehicle to assume the role or chain of command within the executive branch. Now for this part I fall to my background as a military officer. In the military we know that a private can be a general in extraordinary circumstance, but that private is not a general, he is an acting general until relieved by a properly commissioned officer. It does not take away the responsibility and duties of that private but he now has to act like a general. In a sense we followed that logic to assume the chain of command in the absence of all other qualified privates. Now if there were other privates who were adhering to the law on record then we would be looking at time and grade, who had the time and grade to assume the chain of command. I am a former captain, I was in the field artillery. We did a lot of training in Korea and Japan. Those situations always arose, and sergeants did find themselves in captains positions; they were not prepared but the first thing they always did was "Where are the standard operating procedures?" Basically in our case it was the laws. Those were our standard operating procedures. It is a very interesting way of how this process of reestablishing the government occurred, but again it goes to the survivability of nationals within prolonged occupation. You do not necessarily have the luxury of actually saying you are a Hawaiian subject, and I am sure you will notice in the memorials we were attacked and we were actually prosecuted criminally. So those points are real in Hawai'i. But what we bring here is not that. What we bring here is more clarity to the issues, specifically the continuity of statehood, in that it would help you get over that hurdle of jurisdiction to look at the merits. So again I submit that we would like to submit for an evidentiary hearing to address those issues, more particularly the questions posed in my colleague's 1 through 4. We feel it is imperative that we need to get 1 through 4 before truly addressing the fifth issue, because it really goes to the standing of the parties. But the United States should not and cannot be affected by this type of determination as far as the merits are concerned. We do not want to introduce any unilateral act done by the United States, we want to rely on the acts done by the Hawaiian Kingdom, past, present and to this point. Are there any more questions?
THE PRESIDENT: Thank you, Mr Sai; No. I have some questions for both parties but thank you for your submissions. In a moment the Tribunal will adjourn just to enable the parties to consider their responses. We really have one very simple question, which is simply to confirm that there is no issue as to the costs of the arbitration so far, including the costs of the parties, by reason of Article 5 of the original agreement. I understand that to be the case so there is no question of our making any order for costs whatever. The second question is in two parts. First of all I would like confirmation from both parties that they feel that they have had a sufficient opportunity to address the issues which were raised in our procedural orders 3 and 4, bearing in mind of course that there are certain questions which are reserved to the eventual merits of the case if we arrive at the merits, in particular the question of the continued existence of the Hawaiian Kingdom and the entitlement of the respondent to represent the Hawaiian Kingdom. That is an issue reserved to the merits, or possibly to an intermediate phase at which the potential alternative application of the optional rules was to be considered. So question 1; do you feel you have had a sufficient opportunity to address the issues raised in procedural orders 3 and 4? Question No. 2 which would arise especially if the answer was No, but might arise in any event; do the parties feel that it would be helpful to be given a further opportunity to express in writing their views on those questions within a short timeframe - we would envisage something of the order of three weeks. Of course you may feel that the issues have been sufficiently ventilated and we can simply go away and produce an award on these questions, but given that there has been discussion and further consideration obviously issues have been developing and Ms Parks has learnt more about international law I infer and Mr Sai has become more of a lawyer than he was before! The question is whether it would be useful to have another opportunity to have a post hearing brief. This is not something to be encouraged, though they are certainly proliferating, but if the parties feel it would be helpful then of course that allowance can be made. We will adjourn for about five minutes to enable you to consider separately or collectively your answers to those questions, and then we will come back and wind up.
THE PRESIDENT: First of all I take it that there is no question that we need to decide on any issue of costs?
MS PARKS: No, there is no question on that.
THE PRESIDENT: Turning to the other procedural question I raised first of all could the parties confirm or deny as the case may be that they feel that they have had every opportunity to present oral argument on the issues identified in procedural orders 3 and 4?
MS PARKS: Yes, the claimant has had every opportunity to present arguments on issues raised by the Judges in procedural orders Nos. 3 and 4, we submit.
MR SAI: Yes, we have addressed the issues on the UNCITRAL rules and the jurisdictional issues. We would like to submit that we are not particularly concerned on the necessary applicability of the optional rules, but we are perfectly comfortable under the UNCITRAL rules.
THE PRESIDENT: Thank you very much. Everything we can do to make you comfortable consistent with our discipline we will do, Mr Sai. Do the parties feel the need for post hearing written briefs?
MS PARKS: No, the claimant does not.
MR SAI: We feel we have submitted the best we could and will rest on what we have presented.
THE PRESIDENT: In that case there is no order for post hearing briefs. The Tribunal will consider the making of an award on the issues identified in procedural orders 3 and 4 and will do so within 90 days of today's date. That order will be communicated to you by the Registry. Can I thank the parties for their clear, often entertaining, and always candid arguments presented with considerable ability. These are difficult questions. One of the reasons they are difficult is that we are just coming to a period in the development of international arbitration where the classical structure of state to state arbitration is being tested by mixed procedures which are not purely contractual, and there are therefore quite difficult questions about the application of classical rules of admissibility to mixed proceedings. This is not just a figment of this particular case, it is a general problem. So I think the issues have been difficult and the parties capacity to grapple with them is one which the Tribunal acknowledges with thanks. Is there anything else that either party wishes to say?
MS PARKS: "Mahalo" - thank you very much.
MR SAI: On behalf of the Hawaiian Kingdom, "Mahalo".
MR GRIFFITH: Can I just add that in the context that civil lawyers usually plead with the Tribunal not responding I appreciate it very much that the parties seemed to have participated in the exchange of questions and answers, sometimes each way with members of the Tribunal. For myself I have found that a very useful part of the argument, and I appreciate that each party has acted as common law counsel, as it were, and without at all indicating our views on the matters where we have exchanged information for myself the questioning process was very useful in this arbitration.
THE PRESIDENT: Thank you very much. The proceeding is adjourned and I hope that people travel well and safely and get admitted back to their respective destination.