Hague tribunal ponders the Hawaiian kingdom

The Australian and British arbitrators say they will rule on whether they have jurisdiction in the case

Honolulu Star-Bulletin
Tuesday, January 2, 2001
(front page story - above the fold)

An international arbitration tribunal at The Hague, Netherlands, will decide by early March if it has the jurisdiction to settle a dispute between a Hawaiian nationalist and the acting Hawaiian Kingdom.

No matter what the tribunal decides, the case has spread the word about Hawaii's political history in the world community, said David Keanu Sai, agent for the acting kingdom. He presented arguments at The Hague Dec. 7-11 on why the panel should take the case.

"What was very astonishing and what was so different from being here in Hawaii or in the continental U.S., you're always working within the American bubble, and that glass ceiling is always there," Sai said.

"What has happened was when we went to the World Court in The Hague, America was no better than any other country. And they really had to watch their p's and q's. It was a very interesting perspective," he said.

Sai believes the kingdom still exists but is under a prolonged U.S. occupation following the 1893 overthrow of the Hawaiian monarchy. Last month's hearings marked the first time since 1893 that the kingdom was back in the international realm, he said.

But Sai's position clashes with a majority of Hawaiian activists and state political leaders, who believe a native Hawaiian government is nonexistent but can be restored through self-determination at either the international or national level.

Big Island resident Lance P. Larsen and the kingdom want the tribunal to resolve a dispute surrounding his rights as a Hawaiian citizen. Larsen claimed that his rights were violated because the U.S.-occupied Hawaiian kingdom did not protect him when he spent 30 days in jail in October 1999 for driving his car without a license, license plate, safety check and registration.

Larsen's federal lawsuit ended after both sides agreed to binding arbitration in the World Court.

Written transcripts of last month's oral hearings show the tribunal is concerned about violating international law if it takes the case. Assistant arbitrator Christopher J. Greenwood told Larsen attorney Ninia Parks that she is asking the tribunal to proceed on the basis of an assumption that the U.S. presence in Hawaii is illegal and Larsen's complaint against the kingdom stems from this fact.

"If the United States presence in Hawaii is not illegal, if Hawaii is part of the United States, then, surely, your claim falls away, does it not?" asked Greenwood, a professor of international law at Essex Court Chambers in London.

The other members of the tribunal are Australian professor James Crawford of the United Nations International Law Commission, and Gavan Griffith, Queen's Counsel of the Australian Bar in London and solicitor-general of Australia from 1984-1997.

The trio also discussed the 1993 U.S. resolution that apologized to Hawaiians for the involvement of its citizens in the 1893 overthrow of the Hawaiian government, last year's landmark Rice-vs.-Cayetano case, as well as Sai's involvement in the now-defunct Perfect Title Co., which based land titles on 19th-century kingdom law.

Hawaii attorney Gary Victor Dubin, the acting kingdom's second agent, told arbitrators that this is a unique case because participation of a third party either could be moot or it could be required.

"All I can suggest to you is that this is certainly not an intellectual exercise," Dubin said. "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."

Sai, a former Army captain, said he will push on if the tribunal rules not to take the case. That's because the court order issued by it could be used in other international arenas.

"We can actually take the United States to the International Court of Justice because now we have a court order saying you're mandated to step in," Sai said.