|Synopsis History||"Lance Paul Larsen vs. the Hawaiian Kingdom"
Permanent Court of Arbitration, The Hague
|News Arbitral Log|
QUESTIONS OF JURISDICTION AND ADMISSIBILITY
(Lance Paul Larsen v. Hawaiian Kingdom)
REPLY OF THE GOVERNMENT
OF THE HAWAIIAN KINGDOM
This Memorial is filed in accordance with Procedural Order no. 3 and 4 of the Arbitral Tribunal dated 17 July 2000 and 5 September 2000, respectively which fixed 14 November 2000 as the time-limit for the Reply of Respondent.
A. Procedural Orders No. 3 and 4 of the Arbitral Tribunal
1. The steps by which this dispute came before the Arbitral Tribunal has been stated in paragraphs 14 through 24 of the Hawaiian Kingdom's Memorial, and further factual elements is given in Part I below. The jurisdiction of the Tribunal is founded on two issues that are closely interrelated, first, the agreements between the parties, and, second, the Hague Regulations.
2. For convenience of reference the more important parts of these agreements are set out below. Article I of the first Agreement is the October 30, 1999 Arbitration Agreement by which the Parties accepted, inter alia,
"...to submit the following dispute alleged in the Complaint for Injunctive Relief filed on August 4, 1999, to final and binding arbitration in accordance with the Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between the Two Parties of which Only One Is a State, as in effect on the date of this agreement:
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 within 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."
This Agreement was concluded by Ms. Parks, attorney for Mr. Lance Paul Larsen, and Gary V. Dubin, esquire, Acting Attorney General for the Hawaiian Kingdom and who was authorized by Privy Council Resolution to enter into the same.
3. Prior to the October 30, 1999 Arbitration Agreement, the Hawaiian Kingdom was named as a co-defendant in a Complaint for Injunctive Relief filed in the United States District Court for the District of Hawai'i by the attorney for Mr. Larsen on August 4, 1999. 1 According to the rules of the court, the Hawaiian Kingdom was given sixty (60) days to file an answer to the complaint. Before the expiration of the sixty day period, the Hawaiian Kingdom had made known to the attorney of Mr. Larsen its denial to the allegations contained in the complaint.
4. On October 4, 1999, the Claimant was illegally and wrongfully incarcerated by an American Judge which was the subject matter of the August 4, 1999 Complaint for Injunctive Relief. 2 As a result of this wrongful incarceration, the Parties began to negotiate, out of court, an Arbitration Agreement. Article 3 of the October 30, 1999 Arbitration Agreement requested the Tribunal to provide rulings in two stages.
"The first stage shall result in an award on the verification of the dominion of the Hawaiian Kingdom. The Arbitral Tribunal shall decide 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.
3. The second stage shall result in an award of the dispute specified in section 1(a) and 1(b) of article 1 above. The Arbitral Tribunal shall decide taking into account the opinion that it will have formed on questions of territorial sovereignty, the Vienna Convention on the Law of Treaties, 1969, and any other pertinent factors."
5. Regarding the first stage on the verification of the dominion of the Hawaiian Kingdom, the Hawaiian Kingdom reasoned that before the Tribunal could address the dispute identified in section 1(a) and 1(b) of Article I, the venue of the allegation had to have been verified as occurring "...within the territorial jurisdiction of the Hawaiian Kingdom." 3 The Tribunal was to have decided this issue of "...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." 4 It was alleged by the Claimant that the violations occurred on the islands of Hawai'i and O'ahu, which comprises a part of the territory of the Hawaiian Kingdom, but the Hawaiian Kingdom felt that this territory should be verified first by the Tribunal under international law, before the allegations can be addressed in stage two of the proceedings.
6. On January 3, 2000, Deputy Secretary General Phyllis Hamilton requested, in a letter of correspondence, a monetary deposit from each of the Parties "...to cover the expenses of the arbitration." 5 The Deputy Secretary General also stated that
"The schedule for the arbitration should then be agreed between the Parties and submitted in writing to the Appointing Authority and the Secretariat, as Registrar. That schedule should include the date by which the Parties intend to file their Memorials setting out for the Arbitrator their arguments and the evidence and law supporting those arguments. It should further include the date by which Counter-Memorials will be submitted. If the Parties wish to have oral hearings before the Arbitrator, a reasonable amount of time between the filing of the Counter-Memorial and the dates requested for the hearings should be included to permit the Arbitrator to review the Parties' submissions and to research the legal issues presented to him. The Arbitration Agreement should further fix a date after the hearings by which the Arbitrator will deliver a written Award. That proposed schedule should be communicated to the Arbitrator by the Appointing Authority so that the Arbitrator can determine whether he may reasonably meet the dates agreed by the Parties." 6
7. In response to the January 3, 2000 letter of correspondence by the Deputy Secretary General a meeting was called for by Parties to draft a Special Agreement on January 25, 2000. In the agreement the Parties, inter alia,
"Stress their desire to settle the dispute between the Parties which arose out of the unlawful incarceration of the Claimant, Mr. Lance Paul Larsen, by a government not his own; and
Remain firm to re-establish a trustful and lasting relationship between a National and his Government while both parties are provisionally under the international laws of occupation by another Nation State in time of peace; and
Endeavor to fairly resolve this dispute according to a coherent body of legal rules in a manner fitting the principles of international law and the basic fundamental right of every person to life, liberty, and of pursuing and obtaining safety and happiness;
Have entered into a special agreement, which supercedes, to the extent inconsistent with, the Notice of Arbitration of November 8, 1999 and the Arbitration Agreement of October 30, 1999..." 7
8. In this meeting, the Parties agreed that there was no longer an issue between them identifying the venue of where the violations of Mr. Larsen's rights took place, and that the verification of the territorial dominion of the Hawaiian Kingdom as provided in the October 30, 1999 Arbitration Agreement was no longer applicable. Consequently, the Parties also reviewed the issue to be determined by the Tribunal and found that it should be amended to specifically address the issue of liability or non-liability on the part of the Hawaiian Kingdom within the framework of the Hague Regulations. The Parties agreed to amend the issue to be determined by the Tribunal as outlined in Article III of the October 30, 1999 Arbitration Agreement with the following.
"The Arbitral Tribunal is asked to determine, on the basis of the Hague Conventions IV and V of 18 October 1907, and the rules and principles of international law, whether the rights of the Claimant under international law as a Hawaiian subject are being violated, and if so, does he have any redress against the Respondent Government of the Hawaiian Kingdom?"
9. The question of whether the rights of the Claimant are being violated is a question of international law and not Hawaiian Kingdom domestic law. The Hawaiian Kingdom is in agreement with the Claimant that his rights are being violated under Hawaiian organic and statutory law, but it was the understanding of the Hawaiian Kingdom that the question of whether his rights are being violated by international law, more particularly the Hague Regulations, is an issue to be determined by the Tribunal, as the Parties cannot claim to be qualified to answer such a question, especially during the present situation of a prolonged occupation by the United States of America. Furthermore, any liability or non-liability on the part of the Hawaiian Kingdom must be determined within the framework of the "...Hague Conventions IV and V of 18 October 1907, and the rules and principles of international law..." 8 In the Special Agreement of January 25, 2000, the Parties also increased the number of Arbitrators from one (1) to three (3), and agreed upon a schedule of written pleadings and an oral hearing as requested by the Deputy Secretary General.
10. The Claimant submitted its Memorial on May 22, 2000, and the Respondent submitted its Memorial on May 25, 2000. Counter-Memorials were then submitted by the Claimant and Respondent on June 23, 2000 and June 22, 2000, respectively.
11. On July 17, 2000, Procedural Order no. 3 was issued by Professor James Crawford, on behalf of the Tribunal as its President. Paragraph 6 of the Order provides the basis of the Tribunal's concerns.
"...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 I 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."
12. Without a complete understanding of the issues raised by the Tribunal in Procedural Order no. 3, the Parties mistakenly entered into Special Agreement no. 2 on August 2, 2000, which was an attempt to address the issue of the UNCITRAL Rules. This brought forth Procedural Order no. 4 dated September 5, 2000, which provided:
"In accordance with article 32 of the UNCITRAL Rules, and the general principles of arbitral procedure, it is for the Tribunal to determine which issues need to be dealt with and in what order. For the reasons already given, the Tribunal cannot at this stage proceed to the merits of the dispute; these merits include the question sought to be raised as a preliminary issue by Article I. If the arbitration is to proceed it is first necessary that the preliminary issues identified in its Order No. 3 should have been dealt with."
13. On September 11, 2000, the Parties jointly notified the Tribunal of their acknowledgement of Procedural Order no. 4 and their agreement to a pleading schedule for a preliminary round as envisaged in Order no. 3. In addition the Parties stated:
"May it please the Tribunal to note that the Parties' action in submitting Special Agreement no. 2 was not intended to circumvent Procedural Order no. 3 and/or to undermine the constitution of this esteemed Tribunal, but rather it was our misunderstanding of the order itself...After careful review of Order no. 3 and further contemplation on the matter, the Parties do understand the preliminary issues raised by the Tribunal and is prepared to submit written pleadings and a short oral phase to address the same."
14. Paragraph 4 of Procedural Order no. 3, mistakenly identifies the task of the Tribunal which is explained in paragraph 8 of this Reply. Article III of the October 30, 1999 Arbitration Agreement was superceded and replaced by Article II of the January 25, 2000 Special Agreement, which agreement
"...supercedes, to the extent inconsistent with, the Notice of Arbitration of November 8, 1999 and the Arbitration Agreement of October 30, 1999..."
15. The Parties' understanding of this change is reflected in paragraph 7 of the Hawaiian Kingdom's Memorial and paragraph 71 of its Counter-Memorial; and in paragraph 1 of the Claimant's Memorial and paragraph 1 of its Counter-Memorial. Submissions to the Tribunal in both pleadings by the Parties also reflect an understanding of this change. Accordingly, the Claimant would submit a Reply to Order no. 3 on September 30, 1999, and the Respondent on November 14, 2000. Oral hearings in response to Order no. 3 have been scheduled for December 7, 8, 11 and 12, 2000 at the Permanent Court of Arbitration, The Hague, Netherlands.
B. Structure of the Reply.
16. In its Memorial the Government of the Hawaiian Kingdom provided a clear statement of its independence as a State under customary international laws, and it confirms here the facts and laws contained therein. Nevertheless, the Hawaiian Kingdom welcomes the opportunity to respond to the preliminary issues raised by the Arbitral Tribunal in Procedural Orders no. 3 and 4. In addition, the Hawaiian Kingdom has sought to present its Reply in such a way as to eradicate any confusion which the Tribunal may have in regards to the present dispute between the Parties.
17. The Reply is divided into two parts:
Part I. The Factual Perspective of the Present Case
Part II. Jurisdiction and Admissibility
Part III. Submissions
THE FACTUAL ASPECTS OF THE PRESENT ISSUE BEFORE THE TRIBUNAL
THE HAWAIIAN KINGDOM UNDER INTERNATIONAL LAW
18. The birth of the Hawaiian Kingdom as an Independent State since the 19th century has been examined in Part I of the Memorial of the Hawaiian Kingdom Government. As an independent State, the Hawaiian Kingdom is entitled to the protection of that independence by general international law as it relates to fake revolutions through intervention and the restraints upon another State illegally occupying its territory.
A. Neutral Status of the Hawaiian Kingdom.
19. The Hawaiian Kingdom, as an independent State, was an influential player in the formation of the first principles of international law as it related to neutrality and the rights of national vessels during war. As a result of the Crimean War (1853-1856) between Russia and the Ottoman Empire, the governments of England and France, prior to their impending involvement, each issued formal Declarations on March 28, 1854, and March 29, 1854, respectively, that declared neutral ships and goods would not be captured. Both Declarations were later delivered to the Hawaiian Kingdom government by the British 9 and French 10 Commissioners resident in the Hawaiian Islands on July 7, 1854.
20. Accompanying the British correspondence to the Hawaiian Government that provided a copy of the Declaration of Neutral Rights was a copy of Her Britannic Majesty's Privy Council Resolution of April 15, 1854, that expanded upon the rights of neutral States. The resolution provided, in part,
"Now it is this day ordered by and with the advice of Her Privy Council, that all vessels under a neutral or friendly flag, being neutral or friendly property, shall be permitted to import into any port or place in Her Majesty's dominions all goods and merchandise whatsoever, to whomsoever the same may belong; and to export from any port or place in Her Majesty's dominions to any port not blockaded, any cargo or goods, not being contraband of war, or not requiring a special permission, to whomsoever the same may belong." 11
21. Knowing of the breakout of the Crimean War, His Majesty King Kamehameha III formally proclaimed the Hawaiian Kingdom as a Neutral State with its territorial jurisdiction extending one marine league (three miles) from the coasts of each of its islands on May 16, 1854. 12
22. On June 15, 1854, in Privy Council Assembled, the Committee on the National Rights in regards to prizes had delivered its report. His Excellency Robert C. Wyllie presented the report of the committee and the following resolution was passed and later made known to the Representatives of the Nations who were at war.
"Resolved: That in the Ports of this neutral Kingdom, the privilege of Asylum is extended equally and impartially to the armed *neutral vessels and prizes made by such vessels of all the belligerents, but no authority can be delegated by any of the Belligerents to try and declare lawful and transfer the property of such prizes within the King's Jurisdiction; nor can the King's Tribunals exercise any such jurisdiction, except in cases where His Majesty's Neutral Jurisdiction and Sovereignty may have been violated by the Captain of any vessel within the bounds of that Jurisdiction." 13
* - the term neutral must be construed to be a misprint by the recorder of the Privy Council. Subsequent communications and resolutions refer to the word national and not neutral when referring to this resolution of June 15, 1854.
23. On July 7, 1854, the British Consul General to the Hawaiian Kingdom had sent a dispatch to the Minister of Foreign Affairs in regards to an interpretation of the Privy Council Resolution of June 15, 1854, concerning "armed national vessels and prizes." The French Commissioner also requested clarification. These dispatches were read in Privy Council assembled on July 17, 1854, and the following resolutions were passed.
"Resolved: That by the words armed national vessels and prizes in the Resolution of the 15th June, are meant only vessels regularly organized and Commissioned on national account, and what prizes they may make; and that that Resolution does not extend the privileges of Asylum in the ports of this Kingdom to vessels armed on private account or the prizes taken by them, whatever may be the flag under which such vessels may sail: Therefore all Privateers and prizes made by them are hereby prohibited from entering the Ports of this Kingdom, unless in such circumstances of distress as that their exclusion would involve a sacrifice of life, and then only, under special permission from the King, after proofs to His Majesty's satisfaction , of such circumstances of distress.
Resolved: That the communications of the Representatives of Great Britain and France, be published in the Polynesian of Saturday next; and that the Resolution of this day relating to Privateers, be published every week during the War, under the Resolution of the 15th June last." 14
24. On December 6, 1854, the U.S. Commissioner assigned to the Hawaiian Kingdom, His Excellency David L. Gregg, sent the following dispatch to the Hawaiian Kingdom government regarding the recognition of neutral rights. The correspondence stated, in part,
"...I have the honor to transmit to you a project of a declaration in relation to neutral rights which my Government has instructed me to submit to the consideration of the Government of Hawai'i, and respectfully to request its approval and adoption. As you will perceive it affirms the principles that free ships make free goods, and that the property of neutrals, not contraband of war, found on board of Enemies ships, is not confiscable.
These two principles have been adopted by Great Britain and France as rules of conduct towards all neutrals in the present European war; and it is pronounced that neither nation will refuse to recognize them as rules of international law, and to conform to them in all time to come.
The Emperor of Russia has lately concluded a convention with the United States, embracing these principles as permanent, and immutable, and to be scrupulously observed towards all powers which accede to the same." (emphasis added) 15
25. On January 12, 1855, the U.S. Commissioner also sent another dispatch to the Hawaiian Government that contained a copy of the July 22, 1854 Convention between the United States of America and Russia embracing certain principles in regard to neutral rights. 16
26. After careful review of the U.S. President's request, the Hawaiian Kingdom Government, by His Majesty King Kamehameha IV in Privy Council, passed the following resolution on March 26, 1855.
"Resolved: That the Declaration of accession to the principles of neutrality to which the President of the United States invites the King, is approved, and Mr. Wyllie is authorized to sign and seal the same and pass it officially to the Commissioner of the United States in reply to his dispatches of the 6th December and 12th January last." 17
27. Following the Privy Council meeting on the same day, His Excellency Robert C. Wyllie signed the Declaration of Accession to the Principles of Neutrality as requested by the United States President and delivered the same to the American Commissioner to the Hawaiian Kingdom, His Excellency David L. Gregg. The Declaration provided, in part,
"And whereas His Majesty the King of the Hawaiian Islands, having considered the aforesaid invitation of the President of the United States, and the Rules established in the foregoing convention respecting the rights of neutrals during war, and having found such rules consistent with those proclaimed by Her Britannic Majesty in Her Declaration of the 28th March 1854, and by His Majesty the Emperor of the French in the Declaration of the 29th of the same month and year, as well as with Her Britannic Majesty's order in Council of the 15th April same year, and with the peaceful and strictly neutral policy of this Kingdom as proclaimed by His late Majesty King Kamehameha III on the 11th May 1854, amplified and explained by Resolutions of His Privy Council of State of the 15th June and 17th July same year, His Majesty, by and with the advice of His Cabinet and Privy Council, has authorized the undersigned to declare in His name, as the undersigned now does declare that His Majesty accedes to the humane principles of the foregoing convention, in the sense of its III Article." 18
28. On April 5, 1855, His Majesty King Kamehameha IV, successor in office to His late Majesty King Kamehameha III, ratified the 1852 Treaty with the Kingdom of Sweden and Norway which included the rights of neutrality. Article XV provides,
"All vessels bearing the flag of Sweden and Norway in time of war shall receive every possible protection, short of actual hostility, within the ports and waters of His Majesty the King of the Hawaiian Islands; 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, having treaties with His Majesty the King of the Hawaiian Islands, to induce them to adopt the same policy towards the Hawaiian Kingdom." 19
29. Similar provisions of neutral rights of the Hawaiian Kingdom were also made a part of the treaties with Spain (1863, Article XXVI), 20 Germany (1879, Article VIII) 21 and Italy (1869, Additional Article). 22
30. On April 7, 1855, His Majesty King Kamehameha IV opened the Legislative Assembly. In that speech he reiterated the Kingdom's neutrality by stating, in part,
"It is gratifying to me, on commencing my reign, to be able to inform you, that my relations with all the great Powers, between whom and myself exist treaties of amity, are of the most satisfactory nature. I have received from all of them, assurances that leave no room to doubt that my rights and sovereignty will be respected. My policy, as regards all foreign nations, being that of peace, impartiality and neutrality, in the spirit of the Proclamation by the late King, of the 16th May last, and of the Resolutions of the Privy Council of the 15th June and 17th July. I have given to the President of the United States, at his request, my solemn adhesion to the rule, and to the principles establishing the rights of neutrals during war, contained in the Convention between his Majesty the Emperor of all the Russias, and the United States, concluded in Washington on the 22nd July last." 23
31. The abovementioned actions on the part of the Governments of England, France, Russia, the United States of America and the Hawaiian Kingdom relating to the development of the principles of international law in relation to neutrality provided the necessary pretext for the leading European maritime powers to meet in Paris, after the Crimean War, and enter into a joint declaration that provided the following four principles,
- Privateering is, and remains, abolished.
- The neutral flag covers enemy's goods, with the exception of contraband of war.
- Neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag.
- Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy. 24
32. The aforementioned Declarations and the 1854 Russian-American Convention represented the first recognition of the right of neutral States to conduct free trade without any hinderence from war. Stricter guidelines for neutrality were later established in the 1871 Anglo-American Treaty made during the wake of the American Civil War, whereby both parties agreed to the following rules.
First, to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.
Second, not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.
Thirdly, to exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties. 25
33. Newer and stricter rules for the conduct of neutral States were expounded upon in the 1874 Brussels Conference, and later these principles were codified in the Fifth and Thirteenth Hague Conventions of 1907, governing, respectively, the rights and duties of neutral States in Land and Maritime warfare.
B. Legal Evaluation.
34. Since the 1843 Anglo-Franco Proclamation, wherein the Hawaiian Islands was admitted into the great Family of Nations by England and France, the Hawaiian Kingdom participated in the establishment and growth of the international law of neutrality. With the Hawaiian Kingdom's unique location in the middle of the North Pacific Ocean for both commercial trade and a sanctuary for ships at war, the maritime powers of Europe and America found it prudent to include the Hawaiian Kingdom in the evolution of the principles and subsequent codification of neutral rights.
35. As a neutral State, the Hawaiian Kingdom was afforded all the protection of international law it had helped to establish, and by 1893 the principles of neutral rights were enough to preclude any other independent State from infringing upon the sovereign neutral rights of the Hawaiian Kingdom. It was the United States of America, in its 1871 Anglo-American Treaty, that established rules preventing belligerent States from utilizing neutral territory or ports for warlike purposes such as outfitting vessels, recruiting troops, or basing military operations. It would only be twenty-two years later that the United States and the Hawaiian Kingdom would find themselves entangled in a web of deception and fraud that was perpetuated by American expantionists in gross violation of the sovereign and neutral rights of the Hawaiian Kingdom. From the illegal intervention by the United States into the civil affairs of the Hawaiian Kingdom in 1893, to the subsequent creation of American puppet governments and a state in an occupied neutral territory, the deception would last for over a century.
THE FAKE REVOLUTION (circa. 1893-1894)
36. Notwithstanding the continued existence of the 1864 Constitution as the organic law of the country, Her Majesty Queen Lili'uokalani had drafted a constitution that would counter the ill effect wrought by the extortion of the so-called 1887 constitution. On January 14, 1893, the Queen summoned into the throne room of the Palace, the diplomatic corps, members of the Supreme Court and of the Legislative Assembly, as well as a committee of the Hawaiian Political Association (Hui K”lai'”ina, which comprised of aboriginal Hawaiian subjects vehemently opposed to the so-called 1887 constitution as evidenced by a multitude of signature petitions the organization had collected. 26 Her Majesty's intention on this day was to propose a new constitution that possessed the same qualities as the constitution of 1864.
37. This action, on the part of the Queen, generated excitement amongst a minority of the non-aboriginal Hawaiian subjects and alien community, who were co-conspirators in the so-called 1887 constitution that illegally allowed aliens to vote in the Kingdom elections. This faction had convinced the Queen's ministers to delay her announcement at any cost, in order to formulate a counter. Thereafter, the Queen regrettably informed her guests that she yielded under the advice of her ministers, and promised that on some future day a new constitution would be sought. 27
38. In response to the Queen's delay, a meeting of approximately fifty to one hundred people, primarily resident aliens, met at a private office in Honolulu and selected a so-called Committee of Safety, which comprised of thirteen individuals. The national breakdown of this so-called committee were: (6) Hawaiian subjects, not of the aboriginal race, (5) American citizens, (1) British subject, and (1) German citizen. 28 Between the 14th and 16th of January, 1893, the committee had been meeting with the United States Minister assigned to the Hawaiian Kingdom, His Excellency John Stevens, to formulate a plan of annexing the Hawaiian Islands to the United States. 29 Although there exists no records of the meetings with the U.S. Minister, their true intention would become apparent as subsequent events began to unfold.
39. On January 16, 1893, a meeting was called by the so-called Committee of Safety to protest the Queen's alleged illegal actions. 30 Continuing to mask their true intentions, the committee sought to procure a resolution to be passed by those people in attendance that would denounce the Queen and empower the committee.
40. On that same day the so-called committee, which was comprised of only five (5) Americans out of thirteen (13), had sent a note to the United States Minister purporting that American lives and property were in danger and concluded that,
"We are unable to protect ourselves without the aid, and therefore pray for the protection of the United States forces." 31
41. After delivery of the note, the committee had re-evaluated their treasonous actions, and sent a small contingent to persuade the American Minister not to land the troops until the next day. The request was denied. 32 The American Minister, in violation of the international law of non-intervention, said that the orders have been issued and whether the Committee of Safety was ready or not, the troops will land. Captain Wiltse, U.S. Naval Commander of the U.S.S. Boston, was ordered to land a force,
"...for the protection of the United States legation, United States consulate, and to secure the safety of American life and property." 33
42. Thereafter, between the hours of 4 and 5 p.m., a detachment of over 160 well armed U.S. Marines with two (2) gatling guns were landed and marched through the streets of Honolulu to a position previously secured by Minister Stevens on January 16, 1893. 34 The location of the detachment was directly across the Government building and in plain view of the Palace.
43. Immediately following the unprovoked landing of the American troops, the Governor of the island of O'ahu sent a communication to the U.S. Minister protesting the landing of the troops and called it an unwarranted invasion of Hawaiian soil. 35 At the same time the Hawaiian Minister of Foreign Affairs sent a communication to the U.S. Minister and demanded an explanation for the landing of American troops. 36 The U.S. Minister evaded both communications. The American troops were located a few hundred yards from the Government building at a place between Music Hall and Arian Hall. This location was predetermined by members of the so-called Committee of Safety and the U.S. Minister before American troops disembarked the U.S.S. Boston. 37
44. On January 17, 1893, at about 2:30 p.m., members of this treasonous group proceeded in squads to the Government building, where the American troops were already situated, in order to read their so-called proclamation abrogating the monarchical form of government and seeking annexation to the United States. 38 But in order for these traitors not to be noticed and arrested by Hawaiian officials, they separated in their march. The Committee of Safety had sent Mr. A.S. Wilcox to see if there were any Hawaiian Government troops present at the Government building, and when informed there was none, they proceeded to the Government building and read the proclamation only a few hundred yards from the fortified position of American troops. 39 Only at the end of the reading of the proclamation did the insurrectionary troops, numbering a mere thirty (30) to forty (40), begin to assemble.
45. Rear Admiral Skerrett, ranking officer of the U.S. Naval Force in the Pacific, was later requested to comment on the location of American troops by U.S. Special Investigator James Blount who was investigating the circumstances of the so-called revolution. Rear Admiral Skerrett stated,
"In my opinion it was unadvisable to locate the troops there, if they were landed for the protection of the United States citizens, being distantly removed from the business portion of the town, and generally far away from the United States legation and consulate-general, as well as being distant from the houses and residences of United States citizens...Had Music Hall been seized by the Queen's troops, they would have been under their fire, had such been their desire. It is for these reasons that I consider the position occupied as illy selected. Naturally, if they were landed with a view to support the Provisional Government troops, then occupying the Government building, it was a wise choice, as they could enfilade any troops attacking them from the palace grounds in front." 40
46. In his investigation, U.S. Special Investigator James Blount also commented on the location of the American troops by stating that,
"A part of the Queen's forces, numbering 224, were located at the station house, about one-third of a mile from the Government building. The Queen, with a body of 50 troops, was located at the palace, north of the Government building about 400 yards. A little northeast of the palace and some 200 yards from it, at the barracks, was another body of 272 troops. These forces had 14 pieces of artillery, 386 rifles, and 16 revolvers. West of the Government building and across a narrow street were posted Capt. Wiltse and his troops, these likewise having artillery and small arms.
The Government building is in a quadrangular-shaped piece of ground surrounded by streets. The American troops were so posted as to be in front of any movement of troops which should approach the Government building on three sides, the fourth being occupied by themselves. Any attack on the Government building from the east side would expose the American troops to the direct fire of the attacking force. Any movement of troops from the palace toward the Government building in the event of a conflict between the military forces would have exposed them to the fire of the Queen's troops. In fact, it would have been impossible for a struggle between the Queen's forces and the forces of the committee of safety to have taken place without exposing them to the shots of the Queen's forces." 41
47. He concluded by stating that,
"A building was chosen where there were no troops stationed, where there was no struggle to be made to obtain access, with an American force immediately contiguous with the mass of the population impressed with its unfriendly attitude. Aye, more than this -- before any demand for surrender had even been made on the Queen or on the commander of any officer of any of her military forces at any of the points where her troops were located, the American minister had recognized the Provisional Government and was ready to give it the support of the United States troops!" 42
48. Thereafter, Mr. Samuel Damon, a member of the so-called Provisional Government, proceeded to the Station House, which was under the command of the Marshal of the Hawaiian Kingdom, Charles Wilson. At the Station House was also the Cabinet Council. Mr. Damon had demanded that Her Majesty's Cabinet and Marshal Wilson yield themselves to the Provisional Government because the U.S. Minister had already afforded the Provisional Government de facto recognition and that there ought not to be bloodshed. 43 After many discussions between the Cabinet and Mr. Damon, both parties went to the Government building. After verifying the fortification of American troops, Her Majesty's Cabinet and Mr. Damon, together with others, went to the palace and urged the Queen to acquiesce. The Queen was assured that she could file a protest against what had taken place and that she would be entitled to a hearing at Washington, D.C. After about an hour, the Queen and her Cabinet reluctantly yielded with the following protest.
"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.
That 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 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." 44
49. In accordance with the pre-arranged plan, the Provisional Government hastily sent off commissioners to Washington, D.C., to sign a treaty annexing the Hawaiian Islands to the United States. Actions subsequently taken by the insurgents in their failed attempt of annexation, together with the actions taken by the Queen and the American legation who subsequently investigated the circumstances surrounding the so-called 1893 revolution, are provided in Paragraphs 177 through 188 of Respondent's Memorial.
50. Between December 19, 1893 and July 3, 1894, the self-proclaimed Provisional Government maintained its opposition to the restoration of the Hawaiian Kingdom Government as called for by U.S. President Grover Cleveland.
B. Legal Evaluation.
1. The American Thesis.
51. Between January 14, 1893 and December 19, 1893, there existed two U.S. Presidents and their administrations, being President Benjamin Harrison and President Grover Cleveland, respectively. The pattern of actions taken by these two Presidents toward the Hawaiian Kingdom, as an Independent State, were strikingly different within the framework of international law. President Harrison entertained the idea of annexing the Hawaiian Islands at any cost, while President Cleveland wholly dispensed with the idea after a thorough investigation was done into the events surrounding the so-called revolution, which concluded that the United States diplomat and military personnel were directly responsible for the so-called revolution.
52. Under the Harrison administration premature de facto recognition was afforded the Provisional Government by U.S. Minister John Stevens, seemingly with the approval of the President of the United States, on January 17, 1893. 45 By this intervention, the Provisional Government was afforded the international personality, as the presumed successor to the Hawaiian Kingdom Government, to negotiate a treaty of annexation with the United States on February 14, 1893. 46 Conversely, the actions taken by President Cleveland and his administration between the months of March and December of 1893 had effectively rescinded the notion of de facto recognition of the Provisional Government and its attempt to provide for annexing the Hawaiian Islands to the United States of America, without first legally obtaining State successorship from the Hawaiian Kingdom. 47
2. Illegality of the 1893 Revolution.
53. Revolution by definition is a State phenomenon. It is a legal act under international law that does not affect the continuity of the State, but when the insurgents have met the objective test of de facto will the continuity of the State cease to be protected. As the continuity of an independent State remains protected under international law during a revolution, its legality must be denied if it is a product of outside forces.
54. Marek explains,
"It is a well-known rule of customary international law that third States are under a clear duty of non-intervention and non-interference in civil strife within a State. Any such interference is an unlawful act, even if, far from taking the form of military assistance to one of the parties, it is merely confined to premature recognition of the rebel government." 48
55. It has been clearly noted in the U.S. Presidential investigation of the so-called revolution that the United States Minister John Stevens had conspired with a minority of insurgents between January 14th and 16th, 1893. It can be said that the U.S. Minister had encouraged the insurgents with his intent of landing American troops and providing de facto recognition of the Provisional Government once the Government building was in their control. As noted previously, there was no need to adversely seize the Government building because there were no Hawaiian government officials stationed in the area to oppose them. Clearly, these actions could not be considered to be protected under international law as a revolution, but rather evolved due to the unlawful acts of another independent State's intervention.
56. Oppenheim-Lauterpracht comments on the illegality of intervention by another independent State by stating,
"...while subversive activities against foreign States on the part of private persons do not in principle engage the international responsibility of a State, such activities when emanating directly from the Government itself or indirectly from organizations receiving from it financial or other assistance or closely associated with it by virtue of the constitution of the State concerned, amount to a breach of International Law." 49
57. Professor Marek concludes,
"Thus, there is intervention, and not revolution, if the revolutionary movement in one State is instigated and supported by a foreign State; if the alleged revolution is conducted by citizens, or, a fortiori, by organs of that foreign State; if it takes place under foreign pressure, as for example military occupation." 50
3. Puppet Character of the Provisional Government.
58. On January 16, 1893, American troops made an unwarranted invasion of Hawaiian territory and only made their intentions known on the following day when the self-proclaimed Committee of Safety declared the formation of a Provisional Government. The invasion of Hawaiian soil was a hostile act by a third State over the sovereign right of the Hawaiian Kingdom. In a letter of correspondence to the U.S. Secretary of State, Special Investigator James Blount commented on the illegality of the landing of American troops, by stating that,
"...the fact that the landing of the troops under existing circumstances could, according to all law and precedent, be done only on the request of the existing Government, having failed in utilizing the Queen's cabinet, resorted to the new device of a committee of safety, made of Germans, British, Americans, and natives of foreign origin, led and directed by two native subjects of the Hawaiian Islands. With these leaders, subjects of the Hawaiian Islands, the American minister consulted freely as to the revolutionary movement and gave them assurance of protection from danger at the hands of the royal Government and forces." 51
59. Regarding the occupation of the Hawaiian Kingdom, U.S. President Cleveland had concluded from the investigation that,
"...Hawaii 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 of an occupation by consent or as an occupation necessitated by dangers threatening American life and property." 52
60. The American military occupation was to support the future establishment of a provisional government that would seek annexation to the United States. Therefore it must be construed that the U.S. Minister, in an attempt to avoid international responsibility for an American invasion of Hawaiian soil, affords de facto recognition to a government it had previously helped to create. Thus you have an attempt to assimilate the differing characteristics of a de facto government, which arises out of a lawful revolution within an independent State, and a fake revolution, by intervention of a third State, and the subsequent creation of a puppet government. A puppet government is the organ of the occupant and any agreement or agreements made between them is really an agreement made by the occupant with themselves, as the puppet government can possess no standing under international law as a contracting party. 53
4. The Attitude of the International Community.
61. The very creation of a puppet government by a fake revolution is an illegal act that creates an illegal situation. The presumption to de facto recognition afforded by the international community was based upon the internal State phenomenon of revolutions, and not predicated upon an illegal occupation and intervention by a third State. It follows that the Provisional Government was not independent, but a puppet of the United States that provided a cover for its aggression and attempt of fraudulent annexation. As such, it did not have any affect upon the continuity and identity of the Hawaiian Kingdom as an independent State.
5. The Restoration of the Hawaiian Kingdom Government.
62. Acknowledging the actions taken by the U.S. Minister in January of 1893 as illegal, both under international and municipal laws, U.S. President Grover Cleveland called for the restoration of the Hawaiian Kingdom Government on December 18, 1893. In his message to the U.S. Congress, he rescinded the U.S. Minister's de facto recognition of January 17, 1893, by stating that the Provisional Government was neither de facto nor de jure, and admits to intervention by concluding that,
"The lawful Government of Hawaii 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 through its diplomatic and naval representatives." 54
63. Attached to the findings of fact, the President expressed
"...desire to aid in the restoration of the status existing before the lawless landing of the United States forces at Honolulu on the 16th of January last, if such restoration could be effected upon terms providing for clemency as well as justice to all parties concerned...In short, they require that the past should be buried, and that the restored Government should reassume its authority as if its continuity had not been interrupted." 55
64. What was not known by the President when he delivered the message to the United States Congress on December 18, 1893, was that Her Majesty Queen Lili'uokalani had reluctantly agreed with the proposed condition of amnesty in a communication with U.S. Minister Albert Willis, successor to U.S. Minister John Stevens, on the very same day President Cleveland addressed the U.S. Congress. 56 With all the conditions having been met, the United States failed to assist in the restoration of the lawful government of the Hawaiian Islands for more political reasons than that of a legal duty and obligation.
65. In view of what has been said regarding the historical background of the fake revolution and the creation of the puppet government called the Provisional Government, the continuity of the Hawaiian Kingdom as a subject of international law remained intact. Thus the problem of the continuity or disappearance of the Hawaiian Kingdom involves no doctrinal difficulty. It is dependent entirely on a correct legal appraisal of the historical events leading to the creation of the puppet government and its subsequent demise under international law.
66. Although the standing of the puppet government has been negated under international law, the individuals who embarked on this most treacherous course would not heed to the findings of the U.S. President nor to the lawful right of the Hawaiian Kingdom Government. Instead, they maintained their opposition to the law by taking advantage of the time that had elapsed during the U.S. investigation. In the absence of lawfulness, this self-proclaimed entity that arose out of illegal actions taken by the U.S. diplomatic and military personnel, were allowed to grow and recruit individuals seeking power and wealth, while the United States Congress addressed the Hawaiian issue as requested by U.S. President Cleveland in his speech on December 18, 1893. Since its illegal birth, the Provisional Government's intent was never to be an independent nation and a subject of international law, but rather sought annexation to the United States as a territory. Under the Cleveland administration the dream of annexation, which was brokered under the Harrison administration, soon became a nightmare of American liability and criminal acts, which to this day has not been resolved. Notwithstanding international law, this traitorous group, who called themselves the provisional government, maintained itself until a more sympathetic administration could replace President Cleveland's.
THE SELF-PROCLAIMED REPUBLIC OF HAWAI'I (circa. 1894-1898)
67. Created as an American puppet, the Provisional Government usurped the laws of the Hawaiian Kingdom by enacting pretended laws by its so-called executive and advisory councils. One of these laws called for a Constitutional Convention, and on May 30, 1894, a so-called convention was convened. 57 On July 3, 1894, Sanford Dole, President of the so-called Provisional Government proclaimed the establishment of a so-called Republic of Hawai'i by a constitutional convention. The proclamation read, in part, that
"...the constitutional convention convened in pursuance of the provisions of act no. 69 of the laws of the Provisional Government of the Hawaiian Islands, entitled 'An act to provide for a constitutional convention,' approved the 15th day of March, A.D. 1894, has, in conformity with the provisions of such act, framed and adopted a constitution providing for a permanent form of government for the Hawaiian Islands, under the name of the 'Republic of Hawaii,' and has declared, enacted, and proclaimed that on and after the fourth day of July, A.D. 1894, the said constitution shall be the constitution of the Republic of Hawaii and the supreme law of the Hawaiian Islands." 58
68. At face value the so-called Provisional Government gives an impression of independence, but careful review of its constitution shows otherwise, namely article 32, which provided,
"The President, with the approval of the cabinet, is hereby expressly authorized and empowered to make a treaty of political or commercial union between the Republic of Hawaii and the United States of America, subject to ratification of the Senate." 59
69. Under the so-called Act to provide for a constitutional convention, referred to as Act 69, aliens were encouraged to vote in order to isolate those loyal to the Hawaiian Kingdom who were barred from participating. Individuals who signed the following oath were allowed to vote, irrespective of their nationality. Section 18 of the so-called Act provided the oath for voter registration.
"I, _________, aged, ____ years, a native of ___________, residing at _________, in said District, do solemnly swear in the presence of Almighty God, that I will support and bear true allegiance to the Provisional Government of the Hawaiian Islands, and will oppose any attempt to reestablish monarchical government in any form in the Hawaiian Islands." 60
70. William O. Smith, serving as the so-called Attorney General for the Republic of Hawai'i, affirms the exclusion of Hawaiian subjects loyal to the Hawaiian Kingdom by making the following comment about the oath.
"The word 'oppose' in the form of the oath relates to the duties of those taking it, as voters and as delegates; the former binding themselves in voting for delegates to vote only for such persons as a opposed to a reestablishment of the monarchy; and the latter as members of the convention binding themselves to work in the convention against the introduction of any provision in the new constitution tending to a reestablishment of the monarchy. The word 'resist' was in the first draft of the oath, and was stricken out as possibly misleading." 61
71. The failed attempts made by the self-proclaimed Republic of Hawai'i to secure international recognition has been elucidated in Paragraphs 189 to 193 of the Respondent's Memorial. As the successor to the Provisional Government, the self-proclaimed Republic of Hawai'i could acquire no more authority than its predecessor. It too was neither de facto nor de jure, but self proclaimed. As a puppet creation by the United States on January 17, 1893, this illegal situation was not altered by the changing of its name to the Republic of Hawai'i, and all actions made by the same was to be measured by the international law prohibiting intervention by a Third State.
72. In 1897 the U.S. Presidency had undergone a drastic change. President Cleveland's four year term had expired and William McKinley was elected to be the next President. President Cleveland had already served two non-consecutive terms and was unable to run for re-election. This was an opportunity for the so-called Republic to exercise Article 32 of its constitution and sign a treaty of annexation with the United States.
73. Notwithstanding the illegality of the Republic of Hawai'i, a second attempt of a treaty of annexation was signed in Washington, D.C., on June 16, 1897, between representatives of the self-proclaimed Republic of Hawai'i and the newly elected President of the United States, William McKinley, but the treaty remained subject to ratification or approval by the United States Senate. 62
74. On June 17, 1897, in Washington, D.C., Her Majesty Queen Lili'uokalani filed in the U.S. State Department, a formal protest to the proposed treaty of annexation that attempted to transfer the territory and sovereignty of the Hawaiian Kingdom to the United States of America. 63 She called the second attempt of annexation a violation of the treaties between the Hawaiian Kingdom and the United States as well as the treaties entered between the Hawaiian Kingdom and other independent States. She also stated that
"...by treating with the parties claiming at this time the right to cede said territory of Hawai'i, the Government of the United States receives such territory from the hands of those whom its own magistrates (legally elected by the people of the United States, and in office in 1893) pronounced fraudulently in power and unconstitutionally ruling Hawai'i." 64
75. Her Majesty then called upon the U.S. President
"...to withdraw said treaty from further consideration," and asked the "...Senate of the United States to decline to ratify said treaty..." 65
76. Fortifying Her Majesty Queen Lili'uokalani's second letter of protest were three petitions from the Hawaiian organizations of the Men's Hawaiian Patriotic League, the Women's Patriotic League, and the Hawaiian Political Association. These Petitions which were signed by the Presidents of these organizations were filed with the U.S. Department of State in Washington, D.C., on July 24, 1897. 66 Notwithstanding these protests, the McKinley administration intended to submit the treaty of annexation to the Senate, which would convene in December, 1897. As a result, a signature petition protesting the annexation attempt was initiated in the Hawaiian Islands by the Men and Women's Hawaiian Patriotic League in September of 1897, and over 17,000 signatures were gathered, and made a part of the U.S. Congressional record. 67
77. As a result of these protests and other legal questions surrounding the self-proclaimed Republic of Hawai'i, the United States Senate failed to obtain the required 2/3's vote, as mandated by the U.S. Constitution, to ratify the purported treaty of annexation.
B. Legal Evaluation.
78. Neither the provisional government nor the Republic of Hawai'i ever intended to be independent, whether legal or actual. Its sole purpose was to transfer itself at some future date to the United States of America. It can also be said that the creation of the Republic of Hawai'i was an attempt to impress upon the United States a similarity of government which would make them much more attractable for a subsequent annexation. Either way, the so-called Republic could gain no more authority than the provisional government held. It too was neither de facto nor de jure, which arose out of intervention by a United States diplomat and naval representatives.
79. Professor Lauterpracht explains,
"If a community...were to become, legally or actually, a satellite of another State, it would not be fulfilling the primary condition of independence and would not accordingly be entitled to recognition as a State." 68
80. Attached to this problem is the fact that the Republic's predecessor was the provisional government which arose as a puppet government of the United States Minister resident in the Hawaiian Islands, and whose sole purpose was to negotiate a treaty of annexation with the United States of America. This purpose was not altered when the provisional government declared themselves to be the Republic of Hawai'i by a so-called constitutional convention. As an instrument of disguised law-breaking, puppet creations escape all legal definition.
81. The relationship between the Republic of Hawai'i and the United States of America seems to bear a remarkable resemblance to the relationship between Japan and the Republic of Manchukuo (circa. 1931-45). As Professor Marek explains,
"Following her attack on China in 1931, Japan refrained from a straightforward annexation of Manchuria, preferring to set up in that part of China a puppet State which served all the purposes of annexation in everything but name." 69
82. The only differing aspect in this comparison is that the United States of America had attempted to annex the Hawaiian Islands by entering into a treaty with its puppet governments, and not by the consent of the de jure Hawaiian Kingdom government. Very much like the United States Presidential 1893 Fact Finding Commission which concluded that "The Lawful government of Hawai'i was overthrown...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 through its diplomatic and naval representatives," 70 the League of Nations Report of the Commission of Enquiry into the Sino-Japanese relations, including the question of Manchukuo, stated,
"It is clear that the Independence Movement, which had never been heard of in Manchuria before September 1931, was only made possible by the presence of the Japanese troops. ...The evidence received from all sources has satisfied the Commission that while there were a number of factors which contributed to the creation of 'Manchukuo', the two which, in combination, were most effective and without which, in our judgment, the new State could not have been formed were the presence of Japanese troops and the activities of Japanese officials, both civil and military." 71
83. As President Cleveland concluded that the provisional government "...was neither de facto nor de jure," and called for the restoration of the Hawaiian Kingdom Government, the League of Nations Commission concluded, inter alia, that,
"...the maintenance and recognition of the present regime in Manchukuo would be...unsatisfactory." 72
84. Subsequent actions taken by the so-called provisional government, who later called themselves the Republic of Hawai'i, continued to maintain a subversive relationship with the United States of America as it did when it was called the provisional government. Evidence of this subversive relationship clearly revealed itself after the so-called 1897 Treaty of Annexation between the Republic and the United States was killed in the United States Senate as a result of the protests of Her Majesty Queen Lili'uokalani and her people. The United States government who was intent on getting the Hawaiian Islands at any cost, enacted a domestic law entitled Joint Resolution no. 55 "to provide for annexing the Hawaiian Islands to the United States." In that resolution it stated,
"Whereas the Government of the Republic of Hawai'i having, in due form, signified its consent, in the manner provided by its constitution, to cede absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies..." 73
UNITED STATES' OCCUPATION OF THE
HAWAIIAN KINGDOM (circa. 1898-present)
85. The belligerent occupation of the Hawaiian Kingdom by the United States of America has been drawn out in Paragraphs 199 to 209 of the Respondent's Memorial and in Paragraphs 40 to 49 of its Counter-Memorial. As a belligerent State who was at war with the Kingdom of Spain since April 21,1898, the United States fell under the international laws of war, neutrality and occupation. Rights of the Hawaiian Kingdom as a neutral State, and her territories were to be considered inviolable, but instead, the United States again violates Hawaiian sovereignty by disguising the occupation of her territory by annexation.
86. Acting upon the abovementioned Joint Resolution no. 55 to provide for annexing the Hawaiian Islands to the United States which was passed by the U.S. Congress on July 6, 1898, the Klondike steamer entered Honolulu Harbor just one month later on August 13, with American troops of the 1st New York Volunteer Infantry and U.S. Volunteer Engineers on board to fight the Spanish in the Pacific theatre. 74 These troops were stationed at the first American military post established in the Hawaiian Islands called Camp McKinley, being located below Diamond Head in Waikiki on the island of O'ahu. Hawai'i thereafter rapidly became the staging point for American troops fighting the Spanish in Guam and the Philippines.
87. Under the international laws of occupation, more particularly the 1907 Hague Convention IV, the occupying government must establish a system of direct administration of the laws of the country that its occupying. 75 In other words, the United States government, as an illegally occupying government in the Hawaiian Islands since its unprovoked incursion by its troops on August 13, 1898, was mandated to administer Hawaiian Kingdom law over the territory and not its own, until they withdraw. This is not a mere descriptive assumption by the occupying government, but rather it is the law of occupation.
88. Benvenisti states that,
"Modern occupants came to prefer, from a variety of reasons, not to establish such a direct administration. Instead, they would purport to annex or establish puppet states or governments, make use of existing structures of government, or simply refrain from establishing any form of administration. In these cases the occupants would tend not to acknowledge the applicability of the law of occupation to their own surrogates' activities, and when using surrogate institutions, would deny any international responsibility for the latter's actions." 76
89. Instead of establishing a system to administer Hawaiian Kingdom law in 1898, the United States, by its Congress in 1900, created a puppet government. 77 This government, called the Territorial Government of the Hawaiian Islands, would enforce American law throughout the Hawaiian Kingdom. As its governor, United States President William McKinley appointed the most heinous criminal in the Kingdom, Sanford B. Dole. Sanford B. Dole, a traitor to the Kingdom, was given authority by a United States President to punish and even put to death any Hawaiian subject or loyalist to the Kingdom who would threaten his so-called authority. United States military bases sprang up throughout the islands and together with the Territorial Government they imposed their rule over Hawaiian nationals. American citizens unknowingly flocked to the Hawaiian Islands, under the false impression that it was lawfully annexed, and soon overwhelmed the population of Hawaiian nationals.
90. In 1945, the United Nations was created with the United States as one of its charter members. According to its Charter, the United Nations would promote the protection of human rights and establish a process of de-colonization for those people who have not yet attained independence as a nation. This process of decolonization was termed self-determination and it applied to colonies which were called non-self-governing territories. United Nations Resolution 1514 provides that
"...all peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." 78
91. In accordance with Article 73 (e) of the United Nations Charter, member States who have colonial possessions were required to report yearly to the Secretary General the status of their colonies in relation to self-determination. It was at this point that the United States committed fraud before this international organization by erroneously reporting the Hawaiian Islands as one of its colonies together with Alaska, American Samoa, Guam, Panama Canal Zone, Puerto Rico and the Virgin Islands. 79 The underlying problem here was that the Hawaiian Kingdom had already achieved independence for the Hawaiian Islands since November 28, 1843, and this independence was also recognized by the United States and other members of the Community of States. 80 Independence though, could not be claimed for the territories of Alaska, American Samoa, Guam, Panama Canal Zone, Puerto Rico nor the Virgin Islands.
92. This attempt to mask the American occupation of the Hawaiian Kingdom is what forged the creation of the puppet State of Hawai'i in 1959. 81 In 1959, the American Ambassador to the United Nations reported to the Secretary General that,
"...since 1946, 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 21, 1959 Hawai'i became one of the United States under a new constitution taking effect on that date. In the 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 (e)." 82
93. In regard to the continuity of Statehood during occupation Professor Marek states,
"Since the law relating to the continuity of the occupied State is clear and unequivocal, any acts of the occupying power which are not in accordance therewith are clear violations of international law." And "...a disguised annexation aimed at destroying the independence of the occupied State, represents a clear violation of the rule preserving the continuity of the occupied State." 83
A. Alien Population Explodes during American Occupation.
94. In order to arrive at some estimation as to the population of Hawaiian subjects presently residing in the islands today, an analysis can be made by comparing the last census report in the Hawaiian Kingdom, being 1890, 84 and the 1990 United States census 85 a century later. Here we would be able to develop an increase factor to estimate the number of Hawaiian subjects (both aboriginal and non-aboriginal) presently in the islands as compared to the foreign national population.
95. According to the 1890 census it listed the population at 96,073. 48,117 (50.1%) comprised the Hawaiian nationals and 47,956 (49.9%) comprised the foreign national population. Of the Hawaiian national population the census listed the aboriginal Hawaiian at 40,622 (84.4%) and those Hawaiian nationals of foreign origin at 7,495 (15.6%). Of the foreign national population the census listed Japanese nationals at 18,474 (38.5%); Chinese nationals at 15,570 (32.5%); American nationals at 1,928 (4%); British nationals at 1,344 (3%); German nationals at 1,034 (2%); Portuguese nationals at 8,602 (18%); and all other nationalities at 1,004 (2%). 86
96. As a result of the illegal occupation of the country there has been no Hawaiian Kingdom government officials naturalizing foreigners in accordance with Kingdom law since 1893 to the present, and unlike the United States, people who are born on Hawaiian soil do not become Hawaiian subjects. The only way to acquire Hawaiian citizenship was either born of Hawaiian subject parentage or by naturalization under the laws of the country. 87 The increase or decrease of the foreign population is arbitrary. The importance is the Hawaiian national population.
97. In the 1990 United States census, aboriginal Hawaiians grew to a population of 138,742 from 40,622 in 1890. An increase of 98,120 or a factor of 3.4 (138,742 — 40,622). If we apply this same factor of 3.4 to the 1890 population of Hawaiian nationals of foreign origin it would compute to 25,483 (7,495 x 3.4), with an increase of 17,988. Therefore, taking the entire population of Hawai'i in 1990 at 1,108,229, we can safely estimate that 164,225 (14.8%) were Hawaiian subjects; 944,004 (85.2%) were foreign nationals.
98. These calculations serve as a very conservative estimate of the population breakdown of Hawaiian nationals versus foreign nationals here today in the islands. It does not include those Hawaiian nationals (both aboriginal and foreign origin) residing outside of the country. When these numbers are attainable the amount of Hawaiian nationals will surely increase.
99. Between 1890 and 1990 the population in the Hawaiian Islands had grown from 96,073 to 1,108,229, with an increase of 1,012,156. If we assume that the foreign population of 1890 remained in the islands we could apply the same increase factor of 3.4 and arrive at a foreign estimation of 163,050. Combined with the estimation of Hawaiian nationals today, being 164,225, you would have 327,275, which leaves 780,954 foreign nationals migrating here under United States control. The onslaught of foreign nationals arriving in country have clearly overwhelmed the national population by 85.2%.
B. Legal Evaluation.
100. The actions taken by the United States of America during the prolonged occupation of the Hawaiian Kingdom, together with the international community, by the United Nations, have given rise to three overriding principles of international law. First, illegal occupation cannot of itself terminate statehood; 88 secondly, there exists a duality of legal orders in an occupied State; 89 and, thirdly, the sovereignty of an established State cannot be affected without its consent. 90
1. Illegal Occupation cannot of itself terminate Statehood.
101. Occupation is a definite legal situation which is strictly limited by the Hague Regulations. As such, the limitations imposed upon the occupant is determined by the international principle of the continuity of the occupied State. This principle, in its negative aspect, limits the authority of the occupier, but, in its positive aspect, it provides for the unchanged international personality of the occupied State. Professor Brownlie explains,
"...that a state remains 'independent', in the sense of retaining separate personality, if a foreign legal order impinges on it, provided that the impingement occurs under a title of international law. It follows that illegal occupation cannot of itself terminate statehood. Elsewhere the general question of balancing effectiveness and the principle ex injuria non oritur jus is considered. Here it must suffice to point out that, when elements of certain strong norms (the jus cogens) are involved, it is less likely that recognition and acquiescence will offset the original illegality." 91
102. Regarding the provisional aspect of occupation, the British Manual of Military Law, 1929, provides,
"...the sovereignty of the legitimate owner of the territory is only temporarily latent, but it still exists and in no way passes to the occupant. The latter's rights are merely transitory, and he should only exercise such power as is necessary for the purposes of the war, the maintenance of order and safety, and the proper administration of the country...The occupant, therefore, must not treat the country as part of his own territory, nor consider the inhabitants as his lawful subjects." 92
103. Along the same lines the United States Basic Field Manual, Rules of Land Warfare, provides,
"Military occupation is a question of fact...It does not transfer sovereignty to the occupant...the sovereignty of the occupied territory is not vested in the occupying power. The occupation is essentially provisional." 93
2. Duality of Legal Orders in an Occupied State.
104. Attached to the principle of international law providing for the continued existence of an established State during occupation, the legal order of the occupied State logically remains intact. Although its effectiveness is greatly diminished by the fact of occupation, its legality provides its sustainability. As such, the Hague Regulations provides for the co-existence of two distinct legal orders, that of the occupier and the occupied. The former is regulated by international law, while the latter is determined by the occupied nation's organic and municipal laws. Professor Marek explains,
"...of these two legal orders, that of the occupied State is regular and 'normal', while that of the occupying power is exceptional and limited. At the same time, the legal order of the occupant is...strictly subject to the principle of effectiveness, while the legal order of the occupied State continues to exist notwithstanding the absence of effectiveness. It can produce legal effect outside the occupied territory and may even develop and expand, not by reason of its effectiveness, but solely on the basis of the positive international rule safeguarding its continuity. Thus, the relation between effectiveness and title seems to be one of inverse proportion: while a strong title can survive a period of non-effectiveness, a weak title must rely heavily, if not exclusively, on full and complete effectiveness. It is the latter which makes up for the weakness in title. Belligerent occupation presents an illuminating example of this relation of inverse proportion." 94
105. Professor Marek concludes,
"Belligerent occupation is thus the classical case in which the requirement of effectiveness as a condition of validity of a legal order is abandoned. The explanation of this unusual fact is to be found in the temporary nature of belligerent occupation. International law could not permanently relinquish the requirement of effectiveness, since this would mean reducing international law and relations to a pure fiction. But belligerent occupation is by definition not of a lasting character. Sooner or later it is bound to end..." 95
3. Sovereignty of an established State cannot
be affected without its consent.
106. As the Hawaiian Kingdom's existence is a matter defined by international law, any challenge of its sovereignty must be made before an international tribunal possessing the proper jurisdiction to render such challenge warranted. To date, there has been no legal challenge by any other State or international organization to the continued existence of the legal personality of the Hawaiian Kingdom as an independent State in accordance with customary and conventional international law. Along these lines, Professor Marek asserts that the laws of occupation,
"...has positively outlawed the creation of puppets as a means of indirectly violating the international occupation regime. It has branded them as illegal. Whatever their claims, they are unable to the break the continuity of the occupied State to which they are in no way related, whether they take the form of puppet States or puppet governments. In the event of the creation by the occupant of a puppet State or States on the territory of the occupied State, the latter survives, with its legal status unchanged." 96
107. In the absence of any judicial award extinguishing Hawaiian statehood, the Hague Regulations not only outlines the duty and obligations of the occupier, but maintains and protects the international personality of the occupied State, even in the absence of effectiveness. Notwithstanding the violations of the duties imposed upon the United States by both customary and conventional international law over the territory of the Hawaiian Kingdom, the Hawaiian Kingdom's sovereign status and its legal order remains unaffected, and capable of being reasserted at some future point.
RE-ESTABLISHMENT OF THE HAWAIIAN
KINGDOM GOVERNMENT (circa. 1995-present).
108. Chapter VII of the Respondent's Memorial outlines in meticulous detail the process by which the Executive Branch of the Hawaiian Kingdom government was re-activated by certain Hawaiian nationals in accordance Hawaiian organic and municipal laws. The creation of the Hawaiian Kingdom Trust Company, a Hawaiian general partnership, as noted in paragraphs 227 to 248 of Respondent's Memorial, was used as the vehicle to activate the executive branch of government. In the absence of all governmental officials and an Executive Head of State, the principals of the trust company assumed the role of acting for and on behalf of these officers as defined by statutory law, until the Legislative Assembly can be constitutionally re-assembled to elect by ballot a permanent executive Head of State.
109. The purpose of establishing the Hawaiian Kingdom Trust Company was two fold; first, to serve as a company acting for an on behalf of the Hawaiian Kingdom government, and second to manage the vested undivided rights of certain aboriginal Hawaiian subjects by and through a fiduciary duty established by certain deeds of trust. The first purpose of the trust company provided for the re-activation of the corporate body of the Hawaiian Kingdom government, by its executive branch, in an acting authority, and the latter provided for the legal and contractual basis for the quieting of all fee-simple titles within the territorial jurisdiction of the Hawaiian Kingdom as noted in paragraphs 249 to 266 of the Respondent's Memorial, on behalf of those beneficiaries who possessed a vested undivided right in all the lands of the Hawaiian Kingdom.
110. In the capacity of acting for and on behalf of the Hawaiian Kingdom government, the trustees of the Hawaiian Kingdom Trust Company had secured the appointment of an acting Regent to serve in their stead, and subsequently resolved to dissolve the trust company and transfer by deed all rights and duties acquired by certain deeds of trusts to the office of the acting Regent. As the Hawaiian Kingdom Trust Company possessed two functions, so did the acting Regent. On the one hand the acting Regent served as an officer acting for and on behalf of the Monarch as provided by Article 33 of the Hawaiian Constitution, while simultaneously possessing a fiduciary duty to the beneficiaries as an assignee of the trustees of the Hawaiian Kingdom Trust Company. Governmental offices, as defined by statute, began to be filled by commissions from the acting Regent, and the duties and obligations defined by both Hawaiian statutory law as well as the international obligations defined by international law began to be implemented. Presently the acting Regent has resumed the office of the Minister of Interior, and together with the other members of the Cabinet Council, they serve as the acting Council of Regency.
B. Legal Evaluation.
111. While legal measures of the occupant are strictly limited by the Hague Regulations, the legal order of the occupied State continues not only to be valid, but can be enforced outside of the occupied territory. Thus Professor Marek explains,
"...whether 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 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 of the occupying power, but by a clear, objective rule of international law." 97
112. The right of Hawaiian nationals to reinstitute their government, by its statutory provisions, is clear and unequivocal under the international principle of the continuity of the occupied State and its legal order, and Professor Marek emphasizes that,
"...it is always the legal order of the State which constitutes the legal basis for the existence of its government, whether such government continues to function in its own country or goes into exile; but never the delegation of the territorial State nor any rule of international law other than the one safeguarding the continuity of an occupied State. The relation between the legal order of the territorial State and that of the occupied State, represented by its exiled government, is not one of delegation, but of co-existence." 98
113. The legal basis for the reassertion of the Hawaiian Kingdom government, by and through a Hawaiian Kingdom general partnership statute, is clearly extraordinary, but the exigencies of the time had demanded it. In the absence of any Hawaiian national(s) adhering to the statutory laws of the country as provided by the country's constitutional limitations on December 10, 1995, a process was established for the creation of the Hawaiian Kingdom Trust Company to serve as a company acting for and on behalf of the absentee government, pending the reconvening of the Legislative Assembly to elect by ballot permanent officers of the government as provided for under Article 33 of the Hawaiian Constitution. Professor Marek concludes that
"It would therefore appear that, while the requirement of internal legality must in principle be fulfilled for an exiled government to possess the character of a State organ, minor flaws in such legality are easily cured by the overriding principle of its actual uninterrupted continuity." 99
CONCLUSION TO PART I
114. The facts set out in the Hawaiian Kingdom's Memorial, Counter-Memorial and in the present Reply regarding the occupation of the Hawaiian Kingdom by the United States of America, demonstrates and distinguishes the legal relationship between the occupied State and the occupying State. The present dispute before the Tribunal is an issue of a Hawaiian national's rights being violated within the confines of the occupied territory and the ensuing legal relationship with his government, being the organ of the occupied State. The issue of the United States involvement in the violation of the Hawaiian national's rights on Hawaiian soil is a matter of fact and not an issue of law.
115. The sovereignty of an established State under international law cannot be affected without its consent, especially during the illegal occupation of its territory. This principle is based upon the basic doctrine of the law of nations, which represents the sovereignty and equality of States. Professor Brownlie states the principle corollaries of sovereignty and the equality of States are: "(I) a jurisdiction, prima facie exclusive, over a territory and the permanent population living their; (2) a duty of non-intervention in the area of exclusive jurisdiction of other States; and (3) the dependence of obligations arising from customary law and treaties on the consent of the obligor. As international law provides the duties and obligations of States as equal members of a community, it conversely provides the necessary protection of a State's personality from the abuse of another State(s)."
116. Based upon this principle of equality Professor Brownlie also states,
"If international law exists, then the dynamics of state sovereignty can be expressed in terms of law, and, as states are equal and have legal personality, sovereignty is in a major aspect a relation to other states (and to organizations of states) defined by law." 100
117. Furthermore, Professor Marek explains that an established State,
"Were the occupant to remain within the strict limits laid down by international law, he would never have recourse to the formation of puppet governments or State. It is therefore not to be assumed that puppet governments will conform to the Hague Regulations; this the occupant can do himself; for this he does not need a puppet. The very aim of the latter... is to enable the occupant to act in fraudem legis, to commit violations of the international regime of occupation in a disguised and indirect form, in other words, to disregard the firmly established principle of the indentity and continuity of the occupied State...To place the acts of puppet government or States on the same level as the acts of the normal organs of the occupant, would mean endowing them with a legality which is not contemplated by the Hague Regulations. 101
118. As the United States is an illegal occupier of the territorial dominion of the Hawaiian Kingdom, it can possess no sovereign right over the territorial dominion of the Hawaiian Kingdom. Moreover, as a result of the prolonged occupation of the Hawaiian Kingdom, there exists within the occupied territory a duality of legal orders deriving from the existence of two separate and distinct States, but these States cannot be construed to have equal rights under international law within one and the same territory. The occupied State has a sovereign right by international law, and the occupying State has a duty mandated by international law. A sovereign right is contradistinguished to a duty mandated by international law, and, as such, the United States of America can claim no sovereign rights within the territorial jurisdiction of the Hawaiian Kingdom, except through treaty law.
JURISDICTION AND ADMISSIBILITY
JURISDICTION OF THE TRIBUNAL
119. The present Chapter will address the two main issues proposed by the Arbitrators relating to the jurisdiction of the Arbitral Tribunal as provided in Procedural Order no. 3. In Section 1 below, the Hawaiian Kingdom will address the first of two preliminary issues raised by the Tribunal in Procedural Order no. 3 and 4, in particular the concern of the Tribunal as to the applicability of the UNCITRAL rules. The Hawaiian Kingdom will then discuss the question of the jurisdiction of the Tribunal as it applies to the United States of America as a non-party. The Hawaiian Kingdom will therefore show in Section 2 that the Tribunal's preliminary concern regarding the rights and duties of the United States, as an illegally occupying government, is remedied according to the Hague Regulations, and that the Tribunal does possess the jurisdiction to hear the dispute without affecting the rights of the United States as a matter of international law.
1. Preliminary Issue of the Tribunal Concerning
the Applicability of the UNCITRAL Rules.
120. When the Parties entered into the October 30, 1999 Arbitration Agreement, the Hawaiian Kingdom waived its sovereign immunity in order to settle a dispute with one of its nationals for the violation of his constitutional rights. Taking into consideration the nature of the dispute between a government and one of its nationals, Paragraph 1 of Article I of the Arbitration Agreement provided that the
"Parties agree to submit the following dispute alleged in the Complaint for Injunctive Relief filed on August 4, 1999, to final and binding arbitration in accordance with the Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between the Two Parties of which Only One Is a State." 102
121. On November 8, 1999, Claimant initiated arbitral proceedings in accordance with Article 8 of the October 30, 1999 Arbitration Agreement and pursuant to Article 3, Section 1 of the Permanent Court of Arbitration Optional Rules for Arbitrating Disputes between the Two Parties of which only one is a State. 103
122. Both Parties were later notified by correspondence of the Appointing Authority on December 3, 1999, that he had spoken to Deputy Secretary General Phyllis Hamilton wherein she stated that both Parties must amend the arbitration rules to reflect the UNCITRAL Rules. The letter of the Appointing Authority to the Parties notifying them of the International Bureau's direction stated:
"As the appointing authority in this matter, I spoke to Phyllis Hamilton, Deputy Secretary General, last night. She stated that your client, Lance Paul Larsen, and the opposing side must both amend by agreement the Notice of Arbitration to cite the proper authority before we can officially proceed in this matter. Ms. Hamilton stated she would fax you a message to request that you recite the UNCITRAL rules to govern the proceedings. Apparently, the optional rules for arbitrating disputes between two parties on which only one is a state is inappropriate." 104
123. The Hawaiian Kingdom submits that as an occupied State under international law it operates on the presumption of its continued existence and the protection that international law provides to it, but this reality is not shared amongst the international community, and perhaps the Permanent Court of Arbitration. If it were so, the Deputy Secretary General would not have directed the Parties to change the arbitration rules from the Optional Rules for Arbitrating Disputes between the Two Parties of which only one is a State to the UNCITRAL Rules of arbitration. The position taken by the International Bureau of the Permanent Court of Arbitration is regrettably understandable, given the seemingly look of American sovereignty over the Hawaiian Islands, but, more so, given the lack of understanding of the legal history of Hawaiian Statehood, which has been kept from the world by the United States, as the occupier.
124. Benvenisti better articulates the position that the Hawaiian Kingdom finds themselves.
"It would seem that measures taken by an annexationist state, or by any other regime that illegally attempts to alienate permanently an occupied territory from its lawful sovereign, do not mandate any deference under international law. The occupant who establishes such a regime does not seek international protection for its interests, and, indeed, is not entitled to it. There is no point in trying to encourage this occupant's observance of the law: this occupant is indifferent to the reaction of the ousted sovereign simply because it has no intention of relinquishing its hold. As it fails to share power with the lawful government under the auspices of international law, the latter is not precluded by the same law from taking whatever countermeasures it can in order to protect its interests during and after the occupation. Under such circumstances, the ousted government, from exile or upon its return, is under no obligation to respect those measures that would have been lawful had the occupant respected the basic norm of international occupation law. The message to the occupant, upon its assumption of power, is that there is but one way of receiving recognition of its measures, and that is by administering the territory in accordance with the framework of the law of occupation. For this message to be effective, it is required that third party states also refuse to recognize such measures." (emphasis added) 105
125. After reviewing the Memorials and Counter-Memorials of the Parties, the Arbitral Tribunal, in its Procedural Order no. 3 of July 17, 2000, raised a preliminary issue as to the applicability of the UNCITRAL rules to the present dispute. Procedural Order no. 3 provided, in pertinent part,
"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 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 I of the Agreement is an arbitrable dispute under the Rules."
126. The Hawaiian Kingdom's position is that the present dispute between the Parties does not fall within the UNCITRAL Rules, as there exists no "international commercial relations" between the Parties as referred to in the preamble to the United Nations General Assembly resolution 31/98, December 15, 1976. Further, as evidenced by the Parties' October 30, 1999 Arbitration Agreement citing the Optional Rules for Arbitrating Disputes between the Two Parties of which only one is a State, the Claimant's Notice of Arbitration of November 8, 1999, the selection of the arbitrators constituting this Tribunal, whose field of expertise centers around the laws of occupation and Statehood, and the text of the Parties' pleadings, it cannot be construed to be the will of the Parties that the present dispute should find itself under the wrong rules for arbitration, which serve as an impediment to resolving the present dispute now before the Tribunal. The Hawaiian Kingdom firmly believes that the Optional Rules for Arbitrating Disputes between the Two Parties of which only one is a State, as originally agreed upon with the Claimant, remains the appropriate set of rules to govern these proceedings. As such, the Hawaiian Kingdom stands ready to correct this unfortunate situation by whatever means necessary.
127. To the extent that the UNCITRAL Rules are clearly not applicable to this particular dispute, the Arbitral Tribunal, with the consent of the Parties, has the power to permit the arbitration to proceed pursuant to the Optional Rules for Arbitrating Disputes between the Two Parties of which only one is a State. The Hawaiian Kingdom, though, understands the concern of the Tribunal of proceeding upon this "hypothesis or assumption" of Hawaiian Statehood, and therefore requests that the Tribunal first inquire into the merits of the case as it only applies to the issue of Hawaiian Statehood and not the merits of the present dispute. Because the occupation of the Hawaiian Kingdom occurred over a century ago, the Arbitral Tribunal would be able to assess the status of Hawaiian Statehood based solely on evidentiary facts and law.
128. Should the Arbitral Tribunal find that it cannot proceed in the legal assessment of Hawaiian Statehood, for jurisdictional purposes, under the UNCITRAL Rules or the Optional Rules for Arbitrating Disputes between the Two Parties of which only one is a State, the Arbitral Tribunal, with the consent of the Parties, has the power to reconstitute itself as a fact-finding commission pursuant to the Permanent Court of Arbitration Optional Rules for Fact-Finding Commission of Inquiry. Whether such arbitration, in such situations, is to proceed pursuant to the UNCITRAL Rules, the Optional Rules for Arbitrating Disputes between the Two Parties of which only one is a State, or the Optional Rules for Fact-Finding Commission of Inquiry, as a pre-condition for making such a jurisdictional determination, the Arbitral Tribunal must first inquire into the history and status of Hawaiian statehood.
129. The Hawaiian Kingdom submits that these proceedings are not to be viewed as inconsistent with any proceeding that may be instituted against the occupying State by the Hawaiian Kingdom before any other international tribunal, but as fully compatible therewith, providing the international community with an important analysis of the legal rights and responsibilities between the Hawaiian Kingdom, as an independent State, and its subjects that will assist such other tribunals in distinctly different decision making tasks.
2. Preliminary Issue of the Tribunal Concerning
the United States of America as a non-Party.
130. In response to Procedural Order no.3, regarding the Tribunal's concern as it pertains to the first question "that his (Lance Paul Larsen) 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" is, in the opinion of the Hawaiian Kingdom, a determinable question to be adjudicated by the Tribunal. The Hawaiian Kingdom recognizes that, although it possesses the ability and competency to determine whether or not Mr. Larsens civil and constitutional rights were violated under Hawaiian domestic law, the Hawaiian Kingdom does not feel that it is competent to make a reliable determination as to the violation of Mr. Larsens rights under international law.
131. In response to the Tribunals understandable concern of affecting the rights of a third party, in this case, being the United States, the Hawaiian Kingdom humbly submits that, should this case proceed, it can arrive at no possible scenario which could be interpreted as having compromised or affecting the rights of the Untied States. What the parties seek from this Tribunal is to provide a clear understanding of the legal relationship between a national and his government. The Hawaiian Kingdom is reminded that the present dispute before the Tribunal, is in fact a dispute between a national and his government, and should not affect the rights or duties of any third party. Moreover, the purpose of having three (3) arbitrators of intellectual and scholarly status in the international legal community, was to ensure that no relevant position would be overlooked or not inquired to.
132. Further, as the Tribunal has been made aware, an invitation was respectfully delivered to the United States Department of State to participate in whatever manner it believed appropriate (paragraph 23, Respondent's Memorial). The participation of the U.S. in these proceedings may well have proven useful. However, the United States is not in fact, either an indispensable or necessary party as those terms are generally understood, both in the common law and in the international community.
133. The Tribunal now has before it, all of the evidence, much of which, is from the United States public records. Therefore, it does not appear, that were the United States a participating party, it would not be in a position to augment the arguments or supplement the records in any material way. The evidence, germane to this dispute, is already a matter of public record, the completeness of which is fully attested to in the attachments to the memorials.
134. The purpose of this case as it pertains to the parties, is to achieve a better understanding as to the relationship between the Claimant and the Respondent. But on a broader level, this case can serve to clarify an understanding to assist in providing harmony between nationals and their governments. Any award which might come from this case is not going to be enforced by national courts. However, this does not mean the findings and conclusions will not have persuasive affect in other international proceedings, in which the history and status of the Hawaiian Kingdom may become an issue. Indeed, by doing its work here, the Tribunal may be able to add immeasurable insight, within the context of law, in related decision making processes as it relates to the Hawaiian Kingdom.
In view of the above the Hawaiian Kingdom respectfully requests the Arbitral Tribunal to find that:
It is appropriate for the Arbitral Tribunal to exercise its jurisdiction to hear and to determine the dispute referred to in the January 25, 2000 Special Agreement.
Date: Honolulu, Island of O'ahu, Hawaiian Kingdom, November 14, 2000.
David Keanu Sai, Acting Minister of Interior
Peter Umialiloa Sai, Acting Minister of Foreign Affairs,
1st Deputy Agent
Gary Victor Dubin, Acting Attorney General
2nd Deputy agent
Kau'i P. Goodhue, Acting Minister of Finance
3rd Deputy Agent
DECLARATION OF DAVID KEANU SAI
I, DAVID KEANU SAI, declare:
- I am the Agent for the Respondent Hawaiian Kingdom Government in the Lance Paul Larsen vs. the Hawaiian Kingdom arbitration case at the Permanent Court of Arbitration. I make this Declaration in support of Respondent's Reply and based upon my personal knowledge unless otherwise stated.
- Attached hereto as Annex "1" is a true and correct copy of the Letter of Correspondence from Deputy Secretary General Phyllis Hamilton to Mr. Keoni Agard, appointing authority, January 3, 2000.
- Attached hereto as Annex "2" is a true and correct copy of the Letter of Correspondence from the British Commissioner to the Hawaiian Kingdom Government, July 7, 1854, enclosing Neutral Declaration and Privy Council Resolution. Hawai'i Archives, 403-11-170, Foreign Officials in Hawai'i, Great Britain, January-July 1854.
- Attached hereto as Annex "3" is a true and correct copy of the French Neutral Declaration, with translation, March 29, 1854. Hawai'i Archives, 403-5-79, Foreign Officials in Hawai'i, France, April-August 1854.
- Attached hereto as Annex "4" is a true and correct copy of the Hawaiian Kingdom Privy Council Resolution of June 15, 1854, Privy Council Minutes, vol. 6, p. 333. Hawai'i Department of Land and Natural Resources.
- Attached hereto as Annex "5" is a true and correct copy of the Hawaiian Kingdom Privy Council Resolution of July 17, 1854, Privy Council Minutes, vol. 6, p. 363. Hawai'i Department of Land and Natural Resources.
- Attached hereto as Annex "6" is a true and correct copy of the Letter of Correspondence from the American Commissioner to the Hawaiian Kingdom Government, December 6, 1854. Hawai'i Archives, 403-24-377, Foreign Officials in Hawai'i, U.S. Commissioners, December 1854.
- Attached hereto as Annex "7" is a true and correct copy of the Letter of Correspondence from the American Commissioner to the Hawaiian Kingdom Government, January 12, 1855, enclosing a copy of the 1854 Russian-American Treaty of Neutral Rights. Hawai'i Archives, 403-24-377, Foreign Officials in Hawai'i, U.S. Commissioners, January 1855.
- Attached hereto as Annex "8" is a true and correct copy of the Hawaiian Kingdom Privy Council Resolution of March 26, 1855, Privy Council Minutes, vol. 7, p. 15. Hawai'i Department of Land and Natural Resources.
- Attached hereto as Annex "9" is a true and correct copy of the Hawaiian Kingdom 1855 Declaration Acceding to Principles of Neutral Rights. Hawai'i Archives, 403-24-378, Foreign Officials in Hawai'i, U.S. Commissioners, February-March 1855.
- Attached hereto as Annex "10" is a true and correct copy of the 1871 Anglo-American Treaty, U.S. Statutes at Large, vol. 17, pp. 863-877.
- Attached hereto as Annex "11" is a true and correct copy of the United Nations General Assembly Resolution 66 (I), Transmission of Information under Article 73(e) of the Charter, December 14, 1946.
- Attached hereto as Annex "12" is a true and correct copy of the United Nations Agenda item 36, Information form non-Self-Governing Territories transmitted under Article 73 e of the Charter: reports of the Secretary General and of the Committee on Information from non-Self-Governing Territories, Annexes, 14th Session, 1959.
- Attached hereto as Annex "13" is a true and correct copy of the Letter of Correspondence from Mr. Keoni Agard, appointing authority, to the Parties, December 3, 1999.
Date: Honolulu, Island of O'ahu, Hawaiian Kingdom, November 14, 2000.
David Keanu Sai, Acting Minister of Interior
|Synopsis History||"Lance Paul Larsen vs. the Hawaiian Kingdom"
Permanent Court of Arbitration, The Hague
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