Arbitral Award Verifies Continued Existence of Hawaiian Kingdom

Next Step ....Fact-finding Commission of Inquiry

The Polynesian Newspaper
February 2001

On November 9, 1999, arbitral proceedings were initiated by Mr. Lance Paul Larsen, by his attorney, Ninia Parks, Esq., against the Acting Government, Council of Regency, of the Hawaiian Kingdom. The Permanent Court of Arbitration in The Hague, Netherlands, is serving as the registry. In court documents Ms. Parks alleges that the Acting Council of Regency is responsible for the protection of her client who is a Hawaiian subject (national) from the illegal actions of the United States government, and its political subdivision, the State of Hawai'i, and therefore liable for redress of those violations of her client's constitutional rights. The Acting Government acknowledges the violations, but disputes the liability, due to the circumstances of American occupation.

On October 4, 1999, Mr. Larsen was imprisoned for thirty days, seven of which were solitary confinement, for adhering to Hawaiian Kingdom law. Mr. Larsen was cited and also arrested for driving his vehicle in the Hilo and Puna area without a license, license plate, safety check and registration. The licensing Statute on p. 616, Compiled Laws of 1884, does not require a license to drive private vehicles, but rather regulates only commercial vehicles in the district of Honolulu.

Pleadings were submitted to the Arbitral Tribunal with a voluminous amount of annexes provided by the Acting Government of the Hawaiian Kingdom that firmly established the Hawaiian Kingdom as an Independent State under international law. On December 7, 8, and 11, 2000, oral hearings were held at the Permanent Court of Arbitration in The Hague, Netherlands, addressing two preliminary concerns of the Tribunal. First, was the dispute between the Parties capable of proceeding under arbitration, and, second, is the United States of America a necessary party to the arbitration.

On February 5, 2001, the Arbitral Tribunal issued its Award in the Lance Paul Larsen vs. the Hawaiian Kingdom arbitration at the Permanent Court of Arbitration. Both Parties are pleased with the Award and have taken the preliminary steps toward a Fact-finding Commission of Inquiry under the auspices of the Permanent Court of Arbitration.

The Award is written in two parts. Part one addresses the issue of the continued existence of the Hawaiian Kingdom as an Independent State under International law, and part two addresses the particular dispute between Mr. Larsen, as a Hawaiian subject, and the Acting Government of the Hawaiian Kingdom.

In verifying the continued existence of the Hawaiian Kingdom as an Independent State, the Arbitral Tribunal stated the following in paragraph 7.4 of the Award: "A perusal of the material discloses that in the nineteenth century the Hawaiian Kingdom existed as an independent State recognized as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties."

As an Independent State, the Hawaiian Kingdom was a subject of international law and was protected from unilateral actions made against it without its consent, especially in regard to the occupation of its territory by the United States of America. Professor James Crawford, President of the Arbitral Tribunal and author of The Creation of States in International Law, 1979, states on page 417 of his book, "Belligerent occupation, per se, does not extinguish the State. And generally, the presumption - in practice a strong one - is in favor of the continuance, and against the extinction, of an established State."

The term presumption is an important aspect of this principle of international law, because it protects the continuity of the Hawaiian Kingdom as an Independent State against the unilateral acts of the United States of America, another Independent State. Thus you have a distinction between a presumption and a claim, where the presumption is the law and the claim against the presumption must be proven before an international tribunal. To date, the United States of America has not proven its claim over the presumption of Hawaiian Independence in any International Tribunal. Therefore, if the Hawaiian Kingdom was an Independent State in 1898, international law provides the presumption that it is still an Independent State today, without any proven claim by the United States of America before an International Tribunal.

This presumption of independence can be likened to the presumption of innocence. As a fundamental principle of criminal law in common-law countries, a person charged with a crime must be presumed innocent until or unless the contrary is admitted by him or proved beyond reasonable doubt by competent evidence.

With this backdrop of Hawaiian Independence under international law, the Arbitral Tribunal continued to state in paragraph 7.4 of the Award that on "...6 July 1898, Joint Resolution No. 55 was passed by the United States House of Representatives and Senate to provide for the annexation of the Hawaiian Islands to the United States. This followed an uncompleted process of annexation attempted during the administration of President Grover Cleveland in 1893."

Further, it is a well known principle of international law that an internal law of one Independent State cannot affect the territory of another Independent State. It is limited by the extent of the territory of the Independent State that enacted the statute. Thus, a Joint Resolution enacted by the United States Congress cannot affect the territory of the Hawaiian Kingdom, as an Independent State, no more than it could affect the territory of the United Kingdom, France or Russia. The only effect one Independent State can have upon another Independent State is through the obligation and terms of a bilateral Treaty. This principle is embodied in Article 27 of the Vienna Convention on the Law of Treaties, that states a "...party may not invoke the provisions of its internal law as justification for its failure to perform a treaty."

The Hawaiian Kingdom has treaties with the United States of America concerning trade, commerce and consular relations and the United States cannot justify the failure to perform these treaties by invoking its internal laws. Examples of United States' internal laws affecting Hawai'i include the 1898 Joint Resolution of annexation, 1900 Act creating a Government for the Territory of Hawai'i, 1921 Act establishing the Hawaiian Homes Commission, 1959 Act establishing Hawai'i as a State of the Union, and finally the 1993 Joint Resolution Apologizing for the Illegal Overthrow of the Hawaiian Kingdom.

In a November 25, 1996 Legal Opinion written by the U.S. Department of Justice's Office of Legal Counsel, reference to the effect of a statute over a treaty within the United States of America and under international law was made. The legal opinion cited U.S. Chief Justice (and former President) Taft, sitting as sole arbitrator in an international dispute, as stating that "...a treaty may repeal a statute, and a statute may repeal a treaty...In an international tribunal, however, the unilateral repeal of a treaty by a statute would not affect the rights arising under it and its judgment would necessarily give effect to the treaty and hold the statute repealing it of no effect." It now becomes obvious why the United States is unable to prove its claim against the presumption of Hawaiian Independence in an international tribunal.

Attached to the Award, the Arbitral Tribunal provided a copy of the complete Message of U.S. President Grover Cleveland on December 18, 1893, and the 1993 Resolution Apologizing for the illegal overthrow of the Hawaiian Kingdom. From an international perspective these two documents are distinctly different, as Cleveland's Message is the conclusion of an international fact-finding investigation, and the 1993 Apology law in an internal piece of legislation by the U.S. Congress. Cleveland's Message is a true apology to the Hawaiian Kingdom and implicates the United States for violating international law and the sovereignty of the Hawaiian Kingdom as an Independent State, while the 1993 Apology law cannot be regarded as an apology, but rather an internal piece of legislation justifying the United States' non-compliance to international law and the treaties entered with the Hawaiian Kingdom.

The second part of the Award addresses the particular dispute between the Acting Government of the Hawaiian Kingdom and Mr. Larsen. The Arbitral Tribunal had determined "...that there is no dispute between the parties capable of submission to arbitration, and that in any event, the Tribunal is precluded from the consideration of the issues raised by the parties by reason of the fact that the United States of America is not a party to the proceedings and has not consented to them."

Regarding the dispute of whether or not Mr. Larsen has redress against the Acting Government of the Hawaiian Kingdom, the Arbitral Tribunal had concluded that it does not fall within arbitration because Mr. Larsen is not seeking damages for the violations from the Hawaiian government. On this note, the Arbitral Tribunal stated in paragraph 11.3 of the Award that "The first such principle is derived from the fact that the function of international arbitral tribunals in contentious proceedings is to determine disputes between the parties, not to make abstract rulings." Throughout the pleadings and in oral arguments before the Tribunal, both the Hawaiian government and Mr. Larsen's attorney admitted that they are not adversarial to each other, but rather are seeking a better understanding of the relationship between a national and his government within the framework of occupational law, and the responsibility of the Hawaiian government.

On several occasions the arbitrators had stated that they are willing to reconstitute themselves into a Fact-finding Commission of Inquiry under the auspices of the Permanent Court of Arbitration, but the Parties did not pursue that option. In paragraph 13.2 of the Award the Arbitral Tribunal again reiterated the option of Fact-finding by stating that, "The Tribunal notes that the interstate fact-finding commissions so far held under the auspices of the Permanent Court of Arbitration have not confined themselves to pure questions of fact but have gone on, expressly or by clear implication, to deal with issues of responsibility for those facts."

In paragraph 11.23 of the Award, the Arbitral Tribunal stated that it "...cannot rule on the lawfulness of the conduct of the respondent (Hawaiian Government) in the present case if the decision would entail or require, as a necessary foundation for the decision between the parties, an evaluation of the lawfulness of the conduct of the United States of America, or, indeed, the conduct of any other State which is not a party to the proceedings before the Tribunal." It did go on to state, though, in paragraph 11.24 that it "...is also possible that the principle does not apply where the finding involving an absent third party is merely a finding of fact, not entailing or requiring any legal assessment or qualification of that party's conduct or legal position. In the present case, however, the parties did not seek to rely on any possible exception to the principle..."

The Parties have formally requested the Arbitral Tribunal to be reconstituted into a Fact-finding Commission of Inquiry under the auspices of the Permanent Court of Arbitration in order to proceed to the issue of responsibility and liability on the part of the Hawaiian government to Mr. Larsen. Pau.