Lance Paul Larsen

v.

Hawaiian Kingdom

Procedural Order No. 3

Course of the proceedings so far

1. By an Agreement of 30 October 1999, the plaintiff, Lance Paul Larsen, through his attorney, and the defendant, variously described as the "Hawaiian Kingdom" or as "the Government of the Hawaiian Kingdom", through an attorney, agreed to submit a dispute to final and binding arbitration in accordance with the Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between Two Parties of which one only is a State. The dispute is described in Article 1 of the Arbitration Agreement in the following terms:

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

   The Agreement does not say what the defendant's position is in relation to these claims.

2. The Agreement specified that the Tribunal is to sit at the Permanent Court of Arbitration in The Hague (Article 2 (1)), that the Tribunal is to consist one person appointed by Keoni Agard, Esq. (Article 2 (2)), and that the Permanent Court's Bureau is to act as the secretariat for the arbitration (Article 2 (3)).
   
   
3. Subsequently by successive amendments, the parties amended the Arbitration Agreement to provide (a) that the arbitration should take place under the UNCITRAL Rules and (b) that the Tribunal should consist of three members. The Permanent Court agreed to act as the secretariat for the arbitration. The appointing authority appointed as members Professor Greenwood QC and Mr. Griffith QC, who by agreement between them nominated Professor Crawford SC as president. The parties subsequently confirmed that the Tribunal was thereby duly constituted.
   
   
4. Article 3 sets out the task of the Tribunal. The Tribunal is to decide in two stages: the first to "result in an award on the verification of the dominion of the Hawaiian Kingdom", the second to "result in an award of [sic] the dispute specified in section 1 (a) and 1 (b) of article 1 above". In the first phase, the Tribunal "shall decided territorial sovereignty in accordance with the principles, rules and practices of international law applicable to the matter, and on the basis, in particular, of historic titles".
   
   
5. It is necessary also to mention Article 6:

   "Nothing in this Agreement can be interpreted as being detrimental to the legal positions or the rights of each Party with respect to the questions submitted to the Arbitral Tribunal, nor can affect or prejudice the decision of the Arbitral Tribunal or the considerations or grounds on which that decision is based."

   Whatever else it may do, Article 6 clearly gives the Tribunal the normal range of powers to decide upon "the considerations or grounds" for its decision, which must be in accordance with international law and the UNCITRAL Rules.

6. The parties subsequently filed Memorials and Counter-Memorials dated respectively 22 may 2000 and 22/23 June. These were supported by a substantial number of annexes. The Tribunal has carefully considered these. However, before proceeding to the substance of the issues the parties have sought to place before it, the Tribunal wishes to raise a number of preliminary issues. In short, there are questions whether the "dispute" identified in Article 1 of the Arbitration Agreement is one which is capable of reference to arbitration under the UNCITRAL Rules, or which the Tribunal has jurisdiction to decide in accordance with international law. It does not matter that the parties have failed to raise these issues. The Tribunal has the power to do so, by virtue of Article 6 of the Agreement and Article 15 (1) of the Rules. Indeed the jurisprudence of international tribunals suggests that it has the duty to do so.

Issues facing the parties in terms of the UNCITRAL Rules

7. Under the UNCITRAL Rules, legal disputes between the parties to a contract are submitted to arbitration as between those parties, leading to an award which should be enforceable under relevant national laws in accordance with the general system for recognition and enforcement of international arbitral awards. It is a cardinal condition for international arbitration (a) that the dispute is a legal one, and (b) that the Tribunal only has jurisdiction as between the parties to the contract of arbitration.
   
   
8. Article 1 of the Rules provides that they shall apply "[w]here the parties to a contract have agreed in writing that disputes in relation to that contract shall be referred to arbitration under the UNCITRAL Arbitration Rules". On the face of the pleadings, however, it appears that the dispute referred to arbitration is not a dispute "in relation to a contract" between the parties, or a dispute that relates to any other contractual or quasi-contractual relationship between them, or that it falls within the field of "international commercial relationship between them, or that it falls within the field of "international commercial relations" referred to in the preamble to the United Nations General Assembly resolution which adopted the Rules (General Assembly resolution 31/98, 15 December 1976). There is therefore a preliminary question whether the dispute identified in Article 1 of the Agreement is an arbitrable dispute under the Rules.
   
   
9. As further defined in the pleadings of the parties, especially the Counter-Memorials, the plaintiff has requested the Tribunal to adjudge and declare (1) that his rights as a Hawaiian subject are being violated under international law as a result of the prolonged occupation of the Hawaiian Islands by the United States of America", and (2) that the plaintiff "does have redress against the Respondent Government" in relation to these violations (Plaintiff's Counter-Memorial, para. 3). The defendant "agrees that is was the actions of the United States that violated Claimant's rights, however denies that it failed to intervene" (Defendant's Counter-Memorial, para. 2). Accordingly the parties agree on the first of the two issues identified by the Claimant as in dispute, but disagree on the second. The second issue only arises once it is established, or validly agreed, that the first issue is to be decided in the affirmative.
   
   
10. On this basis the Tribunal is concerned whether the first issue does in fact raise a dispute between the parties, or, rather, a dispute between each of the parties and the United States over the treatment of the plaintiff by the United States. If it is the latter, that would appear to be a dispute which the Tribunal cannot determine, inter alia because the United States is not a party to the agreement to arbitrate. The Tribunal notes in this regard that the respondent has sought interim measures of protection against the United States (Defendant's Counter-Memorial, para. 60). The Tribunal lacks jurisdiction to award interim measures against non-parties. Moreover the mere fact that such a request is made suggests that the real dispute which the parties have sought to bring before the Tribunal is a dispute involving that third party. There is thus a further preliminary question whether the Tribunal has jurisdiction over the first question submitted to it.
    
    
11. While the second question is one between the parties to the arbitration, that second question arises only if the Tribunal answers the first question in the affirmative. The Tribunal cannot proceed on the basis of an assumption or hypothesis regarding the first question. If the parties are inviting the Tribunal to do so, then it will be necessary to consider whether the Tribunal is, in fact, faced with a legal dispute within the meaning of the UNCITRAL Rules.

Issues facing the parties in terms of international law

12. Similar problems appear to arise under international law, in accordance with which the Tribunal is instructed to decide this case (cf. Article 33 (1) of the Rules). Under international law, the jurisdiction of a non-national tribunal depends on consent and is limited to the parties.
    
    
13. Moreover under international law, there is a general principle that a non-national tribunal cannot deal with a dispute if its very subject matter will be the rights or duties of an entity not a party to the proceedings, or if as a necessary preliminary to dealing with a dispute it has to decide on the responsibility of a third party over which it has no jurisdiction: see Case concerning Monetary Gold removed from Rome, I.C.J. Reports 1954 p. 12; Case concerning Certain Phosphate Lands on Nauru, I.C.J. Reports 1992 p. 240; Case concerning East Timor, I.C.J. Reports 1995 p. 90. The International Court of Justice has also held that, under international law, a tribunal cannot decide a case which is hypothetical or moot: see Case concerning Northern Cameroons, I.C.J. Reports 1963 p. 12.

The approach of the Tribunal

14. In accordance with Article 15 (1) of the Rules, the parties must have a full opportunity to deal with these questions before the Tribunal proceeds to consider them further, or to reach any conclusion on them. The pleadings currently before the Tribunal do not consider these questions.
    
    
15. The Tribunal believes that the parties should have an opportunity to decide whether they wish to undertake a separate round of pleadings on those questions, and if so, whether these can be confined to written pleadings or should include an oral phase. If the parties do not wish to engage in a separate round of pleadings, the Tribunal is presently of the view that it should then proceed to consider these issues as preliminary issues and to make an award thereon.
    
    
16. The Tribunal accordingly gives the parties until 7 August 2000 to present, jointly or separately, their views on the procedure that should now be followed. If the parties wish to engage in a preliminary round, the Tribunal has in mind the following schedule of pleadings:
    
    
    1. The plaintiff to file a written statement by 30 September 2000;
       
       
    2. The defendant to file a written statement by 14 November 2000.

The Tribunal in light of the those statements would then, if the parties so request, be prepared to hold a short oral phase in The Hague, before issuing an order or award on the question of its jurisdiction and of the admissibility of the claim presented.

[signed on behalf of the Tribunal]
James Crawford SC
President

Christopher Greenwood QC
Member

Gavan Griffith QC
Member

17 July 2000