|"Lance Paul Larsen vs. the Hawaiian Kingdom"
Permanent Court of Arbitration, The Hague
|News Arbitral Log
IN THE PERMANENT COURT OF ARBITRATION CASE NO 99001
The Hague, The Netherlands
Monday, 11th December 2000
LANCE PAUL LARSEN Claimant
THE HAWAIIAN KINGDOM Respondent
MS NINIA PARKS, ESQ appeared on behalf of LANCE PAUL LARSEN
MR DAVID KEANU SAI appeared on behalf of the HAWAIIAN KINGDOM
Transcribed by Harry Counsell & Co
(Incorporating Cliffords Inn Conference Centre)
Telephone: 00 44 20 7242 9346
Facsimile: 00 44 20 7831 2526
THE PRESIDENT: We meet this morning to hear the second-round presentations by the parties, but, before I call on Ms Parks, Professor Greenwood has a note of explanation.
PROF GREENWOOD: Chairman, thank you. With your permission, I would like to apologise to the parties and to the members of the public who have come to attend here today. I arrived at Cambridge Airport for my flight in good time, six o'clock this morning, to find that it was an hour delayed. When I realised how difficult it was to land at Amsterdam, I am just grateful to be here in one piece. I must apologise for the fact that I kept you waiting for an unnecessary hour.
THE PRESIDENT: Ms Parks.
MS PARKS: Aloha. It is nice to see you again. I am going to call Lance on the phone very briefly and ask him a few questions about his experience attempting to travel on his Hawaiian Kingdom passport. It should not be more than a 15-minute phone call. Then I will proceed to address the numerous issues that the Tribunal raised during Thursday's and Friday's testimony.
THE PRESIDENT: What is the status of the communication to Mr Larsen? Is he giving evidence?
MS PARKS: Yes, I am going to ask him four questions and he will be answering those four questions to further clarify some of the background of the legal dispute between the parties. Since there seems to have been some issue as to what precisely the legal dispute is, I thought that it would be wise. Also, because he is my client, I would like to bring his voice into this court room even though his presence in the physical sense is not here. Are there any objections?
THE PRESIDENT: Would you give us a moment, please? (The Tribunal conferred)
THE PRESIDENT: Under normal circumstances, this sort of material should have come in in the first round. Mr Sai, do you have any difficulty with asking Mr Larsen now these questions?
MR SAI: May I confer?
THE PRESIDENT: Yes. (Mr Sai conferred with his colleagues)
MR SAI: At this time we really do not know what it would bring out as far as the proceedings are concerned, but we do not want to prevent Ms Parks from presenting that, but we leave that up to the Tribunal to decide.
THE PRESIDENT: Ms Parks, there are two questions. There is the question of the circumstances in which Mr Larsen was not permitted to enter the Netherlands. You have actually tendered the refusal document, so there is no difficulty about our accepting that or accepting the reasons. You are welcome to ask him to confirm that, but I doubt that needs to take very much time. What is more important from the Tribunal's point of view is the definition of the dispute between the parties. That is a matter on which at this stage Mr Larsen is acting as claimant not as witness. In other words, we are not hearing the evidence on the substance. It helps us in terms of any award that we issue to know what the dispute is. The Tribunal will permit you to ring Mr Larsen to clarify with him what his perception of the dispute is on the basis of which you can make submissions, but I would be grateful if the conversation could be relatively short.
MS PARKS: Of course.
THE PRESIDENT: Thank you.
(A telephone connection was made to Mr Larsen)
MR LARSEN: Hello.
MS PARKS: Hello, Lance. Can you hear me?
MR LARSEN: Yes. I would like to just say "aloha" to Professor Crawford, Professor Greenwood and Mr Gavan Griffith, Queen's Counsel. I thank you for trying to help me to resolve this dilemma that I am in.
MS PARKS: Lance, we will be skipping the first two questions and proceeding directly to the third and the fourth questions that we had discussed earlier.
MR LARSEN: OK, which will be?
MS PARKS: Can you please briefly state for the record what your nationality is?
MR LARSEN: My nationality is a Hawaiian subject.
MS PARKS: Can you please describe what legal issue it is that you would like this Tribunal to address?
MR LARSEN: Basically, to have my Government, the Hawaiian Kingdom, protect my rights from the unlawful imposition of US laws over my person.
MS PARKS: At this point would you also consider that you need protection on a global level?
MR LARSEN: Yes, I would say that because my nationality has been denied, even when I tried to enter the Netherlands, which we have treaties with.
MS PARKS: Thank you. I am going to leave you on so that you can hear the proceedings. Feel free to interrupt at any time.
MR LARSEN: Thank you.
THE PRESIDENT: Ms Parks, feel free to interrupt at any time subject to the power that the Tribunal retain control over the proceedings.
MS PARKS: Of course, subject to the power of the judges, of course.
THE PRESIDENT: Before we proceed, we have here an article written by one of my colleagues, Mr Griffith and another, in relation to the UNCITRAL Rules and I will just pass copies of that down to each side in case they are of any assistance. I would not, for a moment, suggest that anything that Mr Griffith wrote was not of assistance!
MS PARKS: Before I discuss the jurisdictional issues that the Tribunal has raised in terms of a third party potentially being affected by this case, I first would like to place on the record a sense of urgency that Lance has been living as a Hawaiian national for many years now and has gone to every court that he has found within the Hawaiian Kingdom and he is aware that his Government has tried to go to the highest court in America to resolve this dispute. I would like to place a sense of urgency on this court hearing this case, because we have a Hawaiian national whose existence is being denied by the world. There may be certain parties that may have more guilt or less guilt, culpability, which has resulted in the denial of his nationality, but that is not the issue before the Tribunal. Lance is simply trying to find a party who will help him. When he filed his class action he named the Hawaiian Kingdom, the United States and every nation that the Hawaiian Kingdom has a treaty with, seeing as all of those nations pledged under solemn oath of treaty to acknowledge the Hawaiian nationality. Today in the year 2000 all of those nations have denied this nationality, except for the Hawaiian Kingdom. They were the one party that responded to the class action and said that they were willing to step forward to the next level and to discuss these issues. Whilst Lance may rather have some other party willing to talk with him about how he can protect his rights, it is the Council of Regency that has taken that responsibility and entered into that relationship with Lance, not simply because they have reinstated the Hawaiian Government but because they have agreed to waive their sovereign immunity and to discuss this relationship with Lance. I was given a chance this weekend to fully digest all of the three cases that were called to the parties' attention over the last two days and for the next few minutes I am going to distinguish our case from those three cases and provide our position as to why this court does have jurisdiction over the claim that exists between Lance Larsen and his Government. Briefly stated, the rule that comes out of the Monetary Gold, Nauru and East Timor cases is that a court cannot rule on the lawfulness of the conduct of a third state when that third state is not present. Reading further into the cases, specifically into the East Timor case, it seems that in any given international case there will be rights of third parties that will be affected. We now live in a world that is interconnected enough that any ruling between two parties on a global level will probably affect third parties. Therefore, the court must consider the interests of the third parties in a specific case and balance those interests against the parties that are in the case, specifically in this case here, Lance Larsen versus the Hawaiian Kingdom. The Tribunal has raised concerns about the United States as a third party. Therefore, the Tribunal must balance the interests of the United States as a third party with the interests of Lance Larsen, the claimant in this case. It is our position that, while the interests of the United States may be affected by any ruling in this case, those interests are not the very subject matter of this dispute. That is a line that was drawn in the East Timor case in balancing. A court is not prevented from adjudicating when the judgment it is asked to give might simply affect the legal interests of a state which is not a party to the case. When those legal interests form the very subject matter of the dispute, then the court must decline the jurisdiction. In this case the subject matter of the dispute is a relationship between Lance Larsen and the acting Council of Regency. Therefore, the United States interests are not the very subject matter of this dispute, as the interests of the Netherlands are not.
PROF GREENWOOD: I am very sorry, but you are going faster than I can take notes. Since I also speak very fast, I have sympathy, but could I ask you to pause just for a minute, because this is a very important submission.
MS PARKS: I can repeat all of that if that would be helpful.
PROF GREENWOOD: If you would like to repeat your definition of what you think "subject matter of this dispute" is.
MS PARKS: Of course. The subject matter of the case here today is the relationship between Lance Larsen and the acting Council of Regency. Both parties have introduced exhibits and set forth the facts of this relationship from when it began in 1996 until now. The incidents that recently occurred at the Amsterdam Airport have escalated this relationship in terms of Lance's sense of urgency that his Government do something to protect him. It is our position that for this Tribunal to discuss the relationship between the acting Council of Regency and Lance Larsen it is not necessary for the Tribunal to make any rulings on the legality or illegality of United States actions. While a ruling may affect interests of the United States, those interests are not the very subject matter of the dispute.
PROF GREENWOOD: You say that, but I have re-read the memorials and the essence of the claim that your client is putting forward is that the Hawaiian Kingdom has a duty to protect him.
MS PARKS: Absolutely.
PROF GREENWOOD: What does it have a duty to protect him against? The unlawful imposition of United States law upon him. Therefore, the heart of the question, surely, is whether there is, indeed, an unlawful imposition of US law upon him.
MS PARKS: I am very thankful for you bringing up that point. I, too, re-read the memorials and realised that up until the reply we were confusing some of the issues. I would say that the submissions in the reply accurately reflect the issues without the United States involvement. When I re-read the memorials and the counter-memorials submitted by both parties, I can see why a third party issue would be implicated in the way in which it was phrased in those documents. Specifically, our first definition of the issue was whether Lance Larsen's rights are being violated as a result of the occupation. Of course, that implicates the United States. Our understanding is evolving as we stand here, so I appreciate you bringing up that point because I would like to clarify for the record that the submissions at this point, the defining submissions that Lance and I would like to put forward, are those contained in the reply which asks specifically, has the acting Council of Regency failed to protect Lance's nationality? We are no longer asking you to rule on the unlawful imposition of American laws, because, frankly, his nationality is being denied on a global level. Whether the United States imposition of American laws has to do with that is irrelevant for him at this point, because he is being denied his existence on a global level.
THE PRESIDENT: The United States asserts jurisdiction over Mr Larsen on the footing (a) that he is present in the United States and (b) that he is a United States national - as I understand it, some combination of those two facts. Some of the things he has done the United States would assert jurisdiction over irrespective of nationality. I imagine that there are other things which would be dependent upon nationality. It is not so much that the United States fails to recognise that he has another nationality. For the United States that is, presumably, irrelevant. The United States asserts that he has its nationality. Why does the Tribunal in answering the question that you say is the subject matter of the dispute not have to rule on those questions?
MS PARKS: It is my understanding - and I am new at international law, so please correct me if I am wrong - that both of the parties agree upon the facts of the case. There are no factual disputes. One of the facts that is agreed upon is that the Hawaiian nationality and the Hawaiian Kingdom continues to exist under the international laws of occupation and treaties.
THE PRESIDENT: I am sorry, Ms Parks, I do not want to repeat myself, but the problem is for the reasons that were explored in discussion in the first round, those do not seem to be purely questions of fact. I put the example to Mr Sai and I will put it to you. Let us take the case of the German occupation of the Netherlands in the Second World War. A question could have arisen between a Dutch national and the Dutch Government in exile as to the Dutch Government in exile's failure to protect that person.
MS PARKS: Of course.
THE PRESIDENT: What difference would it make whether the occupation was lawful or unlawful in that situation? Would it make any difference in international law?
MS PARKS: I will have to guess to answer that question, but, again, I think whether the occupation is lawful or unlawful is irrelevant and is not an issue between the parties.
THE PRESIDENT: There is a distinction between it being irrelevant and it not being an issue between the parties. It is clear that it is not an issue between the parties. That is actually part of the problem. That it being irrelevant is a different matter. For example, would you be prepared for the case to go ahead - I am simply exploring possibilities - on the footing that the United States' occupation of the Hawaiian Islands is lawful?
MS PARKS: From Lance's perspective whether the occupation is lawful or illegal, his nationality is denied in both contexts. His main concern is not whether the occupation is legal or illegal, but the fact that his nationality is being ignored by the world.
THE PRESIDENT: Of course, this case is not against the world.
MS PARKS: Of course not.
THE PRESIDENT: It is against the Hawaiian Kingdom.
MS PARKS: And that it is not being protected by his Government. Whether the occupation is legal or illegal may or may not affect the acting Council of Regency's obligations to protect Lance, but, aside from that relationship, Lance is not concerned in this case with this legality of US conduct. He is concerned with the legality of the acting Council of Regency's conduct.
PROF GREENWOOD: But, Ms Parks, you are saying that the acting Council of Regency owes a duty to your client.
MS PARKS: Yes, we are.
PROF GREENWOOD: Secondly, you are saying that the acting Council of Regency has failed to discharge that duty.
MS PARKS: That is correct.
PROF GREENWOOD: It would only have failed to discharge its duty of protection if there were first some act requiring protection. There is no right under international law for a Government to protect its citizens against the lawful acts of other Governments, only against the unlawful acts. So a claim that there has been a failure to protect necessarily presupposes that there has been some illegal conduct which triggers that right.
MS PARKS: That is a very concise explanation that I have not heard before. I thank you for that.
THE PRESIDENT: I am sorry, perhaps we have not been clear enough, but this is our problem. Let us assume, for example, that Germany in the case I have given was imposing certain regulations on Dutch citizens in the Netherlands which fell within the scope of the powers of an occupant. It would be very difficult indeed to argue that there was any duty on the Dutch Government to prevent that. But let us assume that Germany was imposing forced labour or slave labour on the individuals. It is arguable that there might be some duty - at least not to connive, I am not suggesting that the Dutch Government connived, but at various stages the French Vichy Government connived with the use of its citizens in slave labour camps. One can well imagine after the War that that issue might have given rise to litigation. But the point is that it would have been predicated upon the illegality of the underlying conduct. That is the problem that we have here. The way in which the case is formulated in the pleadings, not excepting the two reply submissions, seems to predicate a judgment of illegality. You say, of course, that the parties agree on that. We have been through that. We are trying to find any way around it. The way I suggested in my analogy - perhaps an imperfect analogy - was that it was a question of fact whether a territory was occupied and not a question of law. As Professor Greenwood has pointed out, that creates the difficulty of where is the source of the obligation to protect against conduct which can neither be stipulated nor be held to be unlawful.
MS PARKS: Of course, the acting Council of Regency on some level has acknowledged its duty and that is what propelled the case forward, that both parties were agreeing that a duty exists. I can understand that for the Tribunal to acknowledge that a duty exists that they on some level have to make judgments on the actions of America, but I would challenge the Tribunal to try to view the actions of the Council of Regency free standing without seeing if it has a relationship with the United States. It is my understanding that the sovereignty of the Hawaiian Kingdom is not dependent upon any actions of any other nation, whether they are legal or illegal. Therefore, the acting Council of Regency acting upon that inherent sovereignty, the judgment of their actions should be able to be made solely based on their actions, not looking at who may be interacting in different ways around them. I am new at international law, that may not be an accurate statement, but it is our conception that their judgments can be judged on their own without looking at the different ways that nations have acted around them, especially given that they have acknowledged that they have this duty.
PROF GREENWOOD: Ms Parks, the issue you raise in your pleadings and in your oral submissions is not about the sovereignty of the Hawaiian Kingdom.
MS PARKS: No, it is not.
PROF GREENWOOD: That is necessarily a given as the basis for your claim.
MS PARKS: Of course.
PROF GREENWOOD: Your claim is that there has been a failure to protect. Let me give you an analogy. I flew from Britain to Amsterdam this morning, late. When I arrived at Amsterdam Airport, I showed my British passport. The immigration officer looked at it and waved me through. I would have no claim against the United Kingdom Government under UK law or international law for its failure to protect me against the Netherlands Government's act of checking my passport, because it is something that the Netherlands Government is perfectly entitled to do. On the other hand, if the Dutch officials had taken me into a side room and applied electric shock treatment to me or something like that, then I would have had a case that the UK should have protected me. Why? Because the Netherlands had acted illegally. If I brought proceedings in a court like this (an international court) against the United Kingdom for its failure to protect me against the Netherlands Government, I would have to show an illegal act on the part of the Netherlands Government, otherwise I simply would not have a case. The very fact that I would have to show an illegal act on the part of the Netherlands Government would mean that I was impleading the Netherlands, which runs us into the problem of East Timor. I think that that is the difficulty. That is what led to our Procedural Order No. 3 that we are putting to you. We want to give you every opportunity to show a way round that if you can.
MS PARKS: Again, let me first start with your analogy at the airport. Lance is not interested in whether the Netherlands Government acted legally or illegally when it denied his entrance and he is not interested in whether the United States has been acting legally or illegally when they deny his nationality in every court proceeding he has been in. What he is interested in is whether the acting Council of Regency has acted illegally when it has failed to protect his nationality. You just stated, Professor Greenwood, that it is necessary to determine what it is that the acting Council of Regency is protecting Lance from. That is correct. It is Lance's position that the acting Council of Regency is protecting him or should be protecting him from the global denial of his nationality, not just from America, but from the Netherlands and from the other nations that are not recognising the Hawaiian Kingdom passport. There are many other nations that are implicated in the illegality except just America. That may make our case even worse, that we have multiple third parties, but one thing that I am trying to do is to shift the focus away from America as the only third party. I think that another difference that I would like to mention at this point, and I am not trying to side track the discussion, is that in all of the three cases that I studied this weekend we are dealing with nations on both sides of the table and colonies, non-self-governing territories. I think that the difference in parties in our case can also distinguish our case from these three cases and that you have a national who has entered the PCA under the Optional Rules that are available for a state and a non-state. In 1993, I think it was, the PCA decided to open its doors to individuals and non-governmental organisations. I think that taking into consideration the importance of a national's plea for help when the world is denying that he exists is another consideration in terms of jurisdiction. Specifically the relationship that he would like clarified is between himself and the acting Council of Regency. I understand that to do that you may have to affect the interests of any third parties, the United States, the Netherlands and other nations that are not today recognising the Hawaiian nationality.
PROF GREENWOOD: I can see that. If you go to the East Timor case, the International Court of Justice only has jurisdiction in cases between states. You have got to establish that both the parties are states before the contentious jurisdiction of the court can come into play at all. The PCA's jurisdiction is broader under the various sets of rules that we have. But at the moment I just cannot see how the outcome in East Timor would have been any different if the parties had been East Timorise and the state of Portugal, with the East Timorise individual saying that Portugal, his state, had failed to protect him against Indonesia. It would be very strange, surely, if in a case where there was a real dispute between the parties, Portugal and Australia, the International Court had said, "We cannot exercise jurisdiction because the subject matter of the dispute is the legality or illegality of Indonesia's conduct", but would have come to a different conclusion if the parties had been an individual from East Timor, assuming for the moment that either the Rules in the ICJ would apply there or that the ICJ has a broader jurisdiction than it has. It would have been extraordinary if they had come to a different result in a case where the parties had been an East Timorise citizen and the Republic of Portugal.
MS PARKS: But, of course, that Court ruled that Indonesia was the necessary party, so that you would still be missing the necessary party if an individual came. I think having East Timor present would give jurisdiction in that case, though, because the rights of the East Timor people are the very subject matter of that case. It confused me - I guess that I agreed with the dissent in that case - that without someone representing East Timor interests that you actually were missing the necessary party because it is the East Timor people who were being injured. That is the beauty of this case. Lance is representing the very interests that are being harmed, his nationality.
PROF GREENWOOD: Which of the dissenting opinions are you referring to, Judge Weeramantry or Judge Shahabuddeen?
MS PARKS: Shahabuddeen. In the East Timor case it seemed that the very subject matter was the rights of the East Timor people. Well, where were they in that case?
PROF GREENWOOD: Can I just make the point that Judge Shahabuddeen, of course, is not giving a dissenting opinion. He is giving a separate opinion. He is voting to uphold the decision. Are you adopting Judge Shahabuddeen's argument, because it is quite important that we understand correctly what you are saying?
MS PARKS: There are several different arguments that were made. I actually agreed with different parts of the different arguments. I agreed with Judge Shahabuddeen when he was discussing the balancing of conflicting interests and he mentioned that any international court will have an affect on third parties and that it is up to the judges to decide how to balance the interests of the third parties with the interests of the parties before the court. Of course, here, because my client has nowhere else to turn - he cannot go to the ICJ - the courts within the United States have ignored him completely - that his interests are very heavy and very urgent in this matter. The judge that spoke about East Timor people not being available ...
PROF GREENWOOD: Take your time to find the reference.
MS PARKS: I think that it is actually Weeramantry.
THE PRESIDENT: I think that the judge you are referring to is Judge Vereshchetin, who made the point in a declaration.
MS PARKS: East Timor was a necessary party.
THE PRESIDENT: The people of East Timor were not necessarily represented by Portugal. Judge Vereshchetin was giving reasons for ...
MS PARKS: Can you say his last name again?
THE PRESIDENT: This is on page 138. Judge Vereshchetin. He says that there are several reasons for the court's decision, one is the absence of Indonesia's consent, but the other, in my opinion no less important reason, is the lack of any evidence as to the views of the people of East Timor on whose behalf the application is being filed.
MS PARKS: It is the very last paragraph of page 138.
THE PRESIDENT: Yes.
MS PARKS: That is one reason why I think that this case is so exceptional and that on a policy reason the PCA would be doing a great disservice to its own future if it refused jurisdiction over this case. It would, effectively, be turning away nationals who have no other international court to go to. The centennial papers were handed to me on Friday and a brief booklet and Kofi Anan and both the former and current Secretary-General of this court in all three addresses discussed the future of the PCA, where is it going and what kind of cases does it want to open its door to. It seems very clear that corporations have been invited to the PCA to discuss their issues. I beg with you here that, if you turn away a Hawaiian national, you are going to be slamming a door in the face of many people who are being denied international human rights and really have nowhere else to go.
THE PRESIDENT: That depends on a number of issues. First of all, the Optional Rules - this case for the moment is not being heard under the Optional Rules, though, of course, we listened to your submission on that point on Thursday - those rules remain available. For example, if you had a question between you and a consenting government which concerned the relations between the claimant and that government and did not as a necessary prerequisite involve a finding on the legality of the conduct of any other state, then the doors of the PCA would remain open. The question is whether the PCA is to act in accordance with general international principles of admissibility or not. It is not really a question for the Tribunal to decide that issue as a matter of policy. There is an issue, as we said the other day, whether the international rules of admissibility are exclusively applicable in the International Court or whether they are applicable for other tribunals. That is a question that you are welcome to address. If they are applicable to this Tribunal, then there is a difficulty and we cannot wish it away on policy grounds.
MS PARKS: Of course not. Again, I would state that a judgment of the legality of the actions of the United States is not necessary for the Tribunal to make in terms of further delineating the relationship between a government and its national. Lance has been asserting his nationality and entered into a relationship with his Government when he registered to vote with them. Notwithstanding any actions of any foreign government, Lance will continue to abide by the treaties and the constitution to which he is bound. If foreign nations disregard his nationality or try to impose their laws or to refuse entry into their country at Customs, none of that is going to detract Lance's commitment to what he sees under international law as his obligations. There are constitutions, civil and legal codes and treaties to which he is bound. Until he sees any evidence that he is supposed to follow another law, he has no choice but to follow the laws that are set forth for him to follow.
THE PRESIDENT: As a matter of international law, of course, the law applicable to an individual is not exclusively the law of that individual's nationality. If Mr Larsen had managed to get into the Netherlands, he would have been subject to Dutch law, not because of his nationality but because he was in the Netherlands. The only government which asserts jurisdiction over him by reference to his nationality is the United States Government.
MS PARKS: It is Lance's understanding and my understanding that international laws are what govern this case here and the legal dispute between himself and his Government also govern the powers that the Tribunal has to accept or decline jurisdiction. Under international laws, he sees the constitution of 1864 and the various treaties that bind him to follow Kingdom law, while other nations, specifically America, may have domestic laws that they can put forth to try to govern him or to make him an American citizen, he has never seen an international law that does that. The clarity of that situation, that there is no international legal instrument anywhere that would make him doubt his nationality is why his case has come this far and why his conviction is so strong of who he is. He has never been shown an international legal instrument that would apply in this case that would supersede any Kingdom laws, treaties or the constitution. That basic fact, it seems to me, also binds this Tribunal. Unless the Tribunal can point to some international legal instrument that casts doubt on Lance's nationality, the Tribunal is bound by those same international laws that the claimant is bound to.
THE PRESIDENT: International law of nationality and jurisdiction is not contained in a legal instrument. It is a matter of general international law. To take elementary propositions, in the Lotus case the Permanent Court of International Justice dealt with the application of Turkish law to a French national abroad and they said that in the circumstances it was not unlawful. The fact that the person was a French national in circumstances relatively extreme did not give the French captain an immunity from the application of Turkish law. It is not a question of there being a treaty on nationality or a treaty on jurisdiction, neither of those two exist. It is a question of what the general principles say.
MR GRIFFITH: Ms Parks, I was going to ask what do you tell us is a given between the parties?
MS PARKS: Between the parties they both acknowledge that the Hawaiian nationality continues to exist.
MR GRIFFITH: It would seem that your submission is that certainly the United States does not acknowledge that.
MS PARKS: And they are not a party that is necessary for these two parties to discuss their relationship.
MR GRIFFITH: You say that we can glean from the reply that you broaden the complaint to say, for example, the Netherlands would not agree with that.
MS PARKS: Our intention is not to bring other nations into this case, but the reason I mention that was to show that we ourselves have taken the focus away from legality or illegality of any United States actions. I think that in the Notice of Arbitration in the memorial we still were mentioning whether US imposition of laws was harming Lance and we are now trying to shift that focus away as we get a better understanding of the jurisdiction of this court and refocus it on the issue which is the relationship between Lance and the acting Council of Regency. There is a distinct legal and factual relationship between those two parties that we would like more clarity on. Perhaps this relationship is the focus, because this is the consenting Government. The other governments have not consented to any jurisdiction whatsoever. Perhaps, it is because the acting Council of Regency has played such an integral part in Lance in the most recent years understanding who he is and what laws he is bound to. There are many different aspects of the relationship that exist between the parties and those are the issues that Lance would like to explore further. Can he force his Government to take actions to protect him? Can he hold his Government liable for the fact that the Netherlands refused to allow him in? Can he hold his Government liable for any of the different denials of his existence that he has experienced? On some level we feel that the acting Council of Regency has taken that responsibility on as they have taken on administering on a temporary basis the sovereignty of our nation.
MR GRIFFITH: If that issue was a given, are you requesting us as a tribunal to make any determination about the given fact that the United States is an occupying power?
MS PARKS: I do not think that the Tribunal need to make a determination. They could recite that both parties are operating under the premise that the Hawaiian Kingdom is being occupied by the United States. Given that premise, such and such and such. This is a procedural issue in terms of proving facts. The burden of proof from my understanding is on the parties to prove the facts that the case relied on. If the Tribunal has doubt as to those facts, there may be a separate procedure that the Tribunal needs to raise to bring those facts into question, but otherwise, it seems to me, that, if the parties are agreeing on that fact, that there is no need for the Tribunal to review those facts.
MR GRIFFITH: What if the parties agreed that President Cleveland was still alive?
MS PARKS: We have in our opinion provided sufficient legal justification for why we agree on those facts. It represents many, many years of research that different people have pulled together in Hawai'i on this topic. It is understandable that the Tribunal may not take it at face value, given the reception that we have gotten in other courts, but it seems to me that, if the issue is really whether or not the Tribunal believes our set of facts, that maybe we could discuss that as the primary issue rather than the interests of a third party coming in. It would be helpful for the parties, I think, to get a better understanding of if the issue is really affecting America or if the issue is really that maybe our facts are not well enough substantiated or that somehow the Tribunal does not have the power to acknowledge our facts, even though we agree upon them.
PROF GREENWOOD: I think that the problem is (to use an English metaphor) that you have a difficulty of avoiding both the devil and the deep blue sea on this.
MS PARKS: We will take the deep blue sea!
THE PRESIDENT: You are probably more familiar with it.
PROF GREENWOOD: The factual submissions that you have made are fascinating. I think that I speak for my colleague when I say that we have all found them of great interest. But international arbitration tribunals exist to decide disputes. Either there is a dispute between the two parties or there is not. If there is not a dispute, there is nothing for us to decide. If there is a dispute, it has to be formulated in such a way that the subject matter of it is not the interests of a third party, unless, of course, you can convince us that the East Timor rule does not apply in arbitral proceedings at all and that we, therefore, have nothing to worry about in this area or, as Mr Dubin was suggesting on Friday morning, that the East Timor rule is actually wrongly formulated by the ICJ and that it should be a matter of prejudice that would be a somewhat different task to apply to the facts of this case. It seems to me that you are in broad agreement with counsel for the Hawaiian Kingdom that your client is a national of the Hawaiian Kingdom and that the Hawaiian Kingdom has a duty to protect him. The question is whether it has violated that duty.
MS PARKS: Absolutely.
PROF GREENWOOD: But that comes back to the legality or illegality of what someone else, who is not present here, has done. It is impossible to reach that question without looking at it.
MS PARKS: I guess whether or not the Tribunal accepts the Council of Regency as a valid party may come to the issue of whether the United States actions were legal or not. If the United States actions were legal, then why would the Council of Regency even be here?
PROF GREENWOOD: Perhaps it would help, Ms Parks, if you would clarify for us - the point cropped up in Mr Griffith's questions - what is the remedy your client is asking the Tribunal to give?
MS PARKS: We would like a declaratory judgment delineating the relationship between the acting Council of Regency and Mr Larsen. What is the extent of the acting Council of Regency's duties to Lance and does that include the absolute protection of his nationality? If it does, then it seems pretty apparent that they have violated that duty. If their duty falls short of that, then perhaps Mr Larsen does not have a case against them. That is a question to which we do not know the answer.
PROF GREENWOOD: That comes back to the problem that I just put to you. International arbitral tribunals decide disputes. They do not give advisory opinions. You have not come to a PCA as a client goes to an attorney asking "What are my rights on this subject?" We cannot do that. We cannot give advice to claimants. We can only decide disputes.
MS PARKS: I think that the dispute is that the acting Council of Regency has set forth in its pleadings that it has taken every action it knows how to take to protect Lance's nationality and that that is sufficient. Lance would argue that that is not sufficient, that until his nationality is restored they have not fulfilled their job.
PROF GREENWOOD: What is he saying they should have done and have not done?
MS PARKS: Unfortunately, he does not know the answer of what they could be doing to better protect him, but he feels that there must be something else that they could be doing that would more thoroughly protect his nationality. He respects the many acts that they have taken, filing in the Supreme Court and the other steps they have taken to try to protect his nationality, but it has not worked. He is still being denied that he even exists and he would like his Government to do something about that.
THE PRESIDENT: We talk about the devil and the deep blue sea, I think that we have probably introduced the high mountain range. The third problem is that, if you do not know what they could have done, then you have not specified the subject matter of the dispute. It is not a case of res ipsa loquitur. It is not a case where it is obvious that they have done nothing. Indeed, you said that yourself in your first round. You have to establish your case. You have to point to concrete things which the respondent could do and is refusing to do.
MS PARKS: Lance would like them to end the occupation.
THE PRESIDENT: You want us to give the defendant advice as to how to do that.
MR GRIFFITH: Is that not the essence of what you are moving towards, to say that the answer is that the occupation should be ended and your client says that the Council of Regency has the duty to do that? Is that not the real content?
MS PARKS: I think that you could flip it around, and it would sound a lot better, that his nationality must be recognised. He is experiencing a form of genocide that the world is refusing to admit that he even exists. At Customs they are saying, "You are an American". He is saying, "No, I am not". He is being denied who he is and this is the one party that is willing to help him come out of the closet and show the world who he is. He is very grateful that the acting Council of Regency has taken this on and really hopes that there is some way that they can make the necessary changes so that the world will recognise who he is. Unfortunately, we do not know enough about international law to tell them exactly what to do or we would have probably told them to do it and we would not have to be here. But he is looking for someone to protect his nationality.
MR GRIFFITH: Ms Parks, we are not in a position that we can give advice about what your client can ask for, but, as you put the submission, I would discern that the essence of his request is that he wishes his Government to ensure that the occupation by the United States ceases. Is that a fair summary?
MS PARKS: Well, it could happen in other different ways too. If other nations started to recognise his nationality, it might happen that way. It does not depend on the actions of any particular nation. It depends upon what he experiences throughout the different nations. Ending the occupation may not be the best way to do it. It may be that the Council of Regency needs to appeal to other nations first. I am not prepared to explore the different ranges of possibilities. I can understand that you guys cannot issue an advisory opinion; if you could discuss the parameters of the legal relationship between the two that might be helpful. Does he even have a right to hold them accountable for the denial of his nationality?
MR GRIFFITH: Let us go back to the pick up truck. The reality is that his complaint about that could only be remedied by the laws of the state of Hawai'i as a state of the United States ceasing to apply. Is that right?
MS PARKS: I think it would be possible to come up with other hypothetical ways to remedy that situation as well. I think that may be the most obvious but I am sure that there are other ways to approach the situation besides just stopping America.
THE PRESIDENT: If I drove a pick up truck in Hawai'i, assuming that I was allowed into the territory, and it was unregistered then I would be fined and the fact that I was an Australian would be irrelevant.
MS PARKS: Actually your rights .....
THE PRESIDENT: Why is it relevant that your client is an Hawaiian?
MS PARKS: Actually your rights as an Australian residing or visiting the Hawaiian Kingdom are protected under the treaty between the Hawaiian Kingdom and Australia, so you as a foreign national visiting the Hawaiian Kingdom would also have a case against the acting Council of Regency because they are not protecting your nationality in their country.
MR GRIFFITH: Perhaps we will have to step down and become a claimant rather than a Tribunal!
THE PRESIDENT: I will make sure not to drive pick up trucks in the future! Proceed, Ms Parks, we have grilled you quite enough.
MS PARKS: Just a few final remarks. I would like to apologise for the confusion in the legal issue that has resulted from the different ways we have rephrased our submissions starting from the notice of arbitration through the memorial, the counter memorial and the reply; and would like to say that the reply on the claimant's perspective formulates the issues in a way that does not result in a judgment that is predicated on the legality or illegality of the United States actions. The reply does attempt to specifically identify the legal issue, the claim between the parties, that is the relationship and the parameters of the relationship between the acting Regency and Lance Larsen as an Hawaiian national.
PROF GREENWOOD: Ms Parks, I am sorry, having just said we would not interrupt you again I am going to break the solidarity on that. I want to be absolutely clear about this. Are you telling us that the reply is the definitive formulation of the dispute as far as you and your clients are concerned, rather than your earlier pleadings?
MS PARKS: The submissions which are in the reply are the submissions that the claimant would like to govern over any other submissions.
PROF GREENWOOD: You will appreciate that that is a most important point; whether we agree with you about the affect of that or not is another matter.
MS PARKS: Absolutely; and I again apologise for any confusion that the submissions and the memorial which kind of leave open the United States without naming them has caused.
PROF GREENWOOD: No apology is needed.
THE PRESIDENT: If counsel to arbitrations had to apologise for confusion then arbitrations would never end.
MR GRIFFITH: Ms Parks, that is a very brief document. The last part, part 2, states the particular relief that you seek. Does that remain the relief?
MS PARKS: Part 2 of the submissions and task of the Court on page 7. I will read it on to the record so that there is absolute clarity. "Having regard to the considerations set forth in the memorial, counter memorial and the reply the claimant Mr Lance Paul Larsen requests the arbitral tribunal to adjudge and declare that (1) the acting Council of Regency of the Hawaiian Kingdom has an obligation and a responsibility under international law to take steps to protect claimant's nationality as an Hawaiian subject. (2) because the acting Council of Regency of the Hawaiian Kingdom has failed to adequately protect claimant's nationality as an Hawaiian subject it is liable to the claimant for redress of grievances".
MR GRIFFITH: Taking you to that paragraph 1, that is not in dispute; is that right?
MS PARKS: We feel that the acting Council of Regency has acknowledged that duty. I would defer to them to address that for themselves though.
MR GRIFFITH: Under claim 2 I think the position at the moment is that you merely assert that there has been a failure but you do not identify with any particularity what should be done. Is that right?
MS PARKS: That is true. I am not experienced enough in international law to know exactly what should be done. The question is is there liability? If there is liability then we can take whatever steps are necessary from there to discover what is the extent of the liability, what specifically can be forced upon them, things like that.
THE PRESIDENT: The rules of responsibility in international law are no different in this respect than the rules of liability in the Anglo=American common law systems, if Mr Dubin will forgive me for mentioning them in the same breath, which is that you have to specify the breach of the respondent with particularity. There is no such thing as liability in the air any more than there is such a thing as negligence in the air. So you have to say in what respect there has been a breach.
MS PARKS: The breach is when Lance was incarcerated because he was treated as an American citizen back in Hawai'i. The Breach is all of the tickets and the fines that are imposed upon him. The denial of his passport at the Netherlands customs. I very easily could reformulate the issues in a duty, breach, causation more of a tort type analysis. The way the international pleadings were set forth did not seem to lend to that. But the specific actions mentioned in the documents in terms of the consistent denial of his nationality. That is the breach; the failure of them to protect him in those instances.
MR GRIFFITH: It is not the acts themselves, you say it is the failure to protect him.
MS PARKS: It is not acting when they are supposed to be acting.
MR GRIFFITH: Can you just tell us how they should have acted with respect to those matters?
MS PARKS: They should have intervened in some way and prevented him from being incarcerated, perhaps taken him into custody as an Hawaiian national through whatever agent would be proper. Keanu Sai did testify at one of the hearings but it did not prevent his incarceration, so perhaps they could have filed a case against the State of Hawai'i, trying to get an injunction against the incarceration of Mr Larsen.
MR GRIFFITH: Ms Parks, are you not really saying that they should have ensured that the laws of the State of Hawai'i did not apply to him?
MS PARKS: Less important than ensuring that his nationality is recognised. If the United States is going to impose its laws at least they can recognise the nationality of the people they are imposing them on. It is the consistent treatment of him as an American citizen that is the main injury that he is suffering. He is telling people who he is and they look at him in the face and tell him he is wrong and tell him that he does not exist. That is the main injury that we are trying to find an avenue of redress for. Not so much that a law is being imposed on him or that customs deny him, but that no one will acknowledge who he is.
PROF GREENWOOD: So the main grievance is that the acting Council of Regency has failed to prevent the authorities of the United States of America treating your client as a citizen of the USA?
MS PARKS: Global authorities. Notably because the acting Council of Regency has failed to adequately protect claimant's nationality as an Hawaiian subject in the world.
PROF GREENWOOD: But the way you formulated it a moment ago was the treatment of him as a United States citizen. That is slightly different from the denial of his Hawaiian Kingdom citizenship. Let me put this hypothetical to you. You can turn up at Immigration in the Netherlands or Singapore or Japan or wherever and produce a Hawaiian Kingdom passport and get the response "We have never heard of the Hawaiian Kingdom, it is not a state as far as we are concerned, you do not have valid travel documents."
MS PARKS: That is exactly what we experienced.
PROF GREENWOOD: That is step one. Step two: "You must be a citizen of the United States" is a separate step. First of all, it is not an essential step in the proceedings. You can be turned away from the Netherlands because you did not have what they regarded as a valid travel document. They did not have to tell you where you should have gone to get a valid travel document in their view. But, if they do, then it is because the Netherlands recognises United States sovereignty over Hawai'i and, therefore, regards Mr Larsen as a citizen of the United States. It all comes back to the assertion of sovereignty by the USA over Hawai'i as a whole and over Mr Larsen in particular.
MS PARKS: Unfortunately, the Customs officials committed an international crime when they called Lance an American, because the Netherlands does have a treaty with the Hawaiian Kingdom. Lance did show it to the Customs officials. It was concluded here in The Hague. Unless the Customs officials can somehow show that that international title has been diminished unknowingly because of the perpetuation of lies that has occurred in the last 100 years, they are breaking the law. I do not think that it is their fault. They do not know that they are breaking the law.
PROF GREENWOOD: Ms Parks, I think that we should be a bit careful. This Tribunal does sit in the Netherlands and we owe a certain courtesy to the laws and institutions of the host state.
MS PARKS: Of course.
PROF GREENWOOD: I think before you accuse an official of that state of an international crime, which is quite a serious matter ...
MS PARKS: I did say that I do not think that they acted illegally because they did not know. Unknowingly they did trample on the international human rights of another national.
THE PRESIDENT: No national has a human right to be admitted to another country not his own. And you are not suggesting that Mr Larsen is a national of the Netherlands.
MS PARKS: No.
THE PRESIDENT: The notion of international crime in the context of the actions of state officials is extremely controversial. I think that we should best steer away from that. What you are saying is that they acted in contradiction to the treaty rights which the claimant asserts still exist in relation to the Hawaiian Kingdom.
MS PARKS: And it is our understanding that until notice is given that a treaty has been terminated, that that treaty still binds and the Hawaiian Kingdom has never ...
THE PRESIDENT: That is only true in relation to two states in international law that continue to exist. If a state ceases to exist - take the South African Republic which ceased to exist at the end or nearly at the end of the Boar War. At the point that it ceased to exist, it ceased to have any treaties by definition, because you cannot have any treaties if you do not exist. The United States position would be - I do not know what position it has taken with respect of succession to Hawaiian treaties - that there are no such treaties because Hawai'i has ceased to exist.
MS PARKS: But, of course, both parties are operating under the premise that the Hawaiian Kingdom does exist. I no way mean to implicate any Netherlands officials. They do not know the facts of the history of who we are. It just exemplifies our frustration in trying to live who we are in a world that has been given, in our opinion, a lot of misinformation.
PROF GREENWOOD: I am grateful for that and I think that it important that you made that point on the record.
MR GRIFFITH: Ms Parks, is it a fair summary of the very short reply to say that it broadens the aspect of specific complaint beyond the relationship with the United States and the State of Hawai'i to express it as a complaint that the acting Council of Regency has not established the status of the Hawaiian Kingdom with the rest of the world?
MS PARKS: Actually, I would say that it simplifies and brings into focus the issue between the two parties. The injury is one that is now a global injury, but the focus is not who is creating that source of injury. The focus is who is not protecting Lance from that injury. I think that the reply tries to narrow and focus the issue rather than broaden it.
MR GRIFFITH: If you say that you have to protect us from this, you have to define what the "this" is.
MS PARKS: The denial of his nationality from all other nations. That is what he wants.
MR GRIFFITH: All other nations?
MS PARKS: All other nations.
MR GRIFFITH: That is how I was seeking to express it. If I could preface my next remark by saying that I intend that to assist the parties. This article that was handed down which I have recently written (I do not think that it is yet published) does make the point I think that the UNCITRAL rules recognise the autonomy of the parties. Although Procedural Direction No. 3 raised the issue as to whether or not UNCITRAL rules were confined to a commercial dispute, the function of this article was perhaps to give some indications to say that the UNCITRAL rules are put in the public arena to be adapted by principles of party autonomy for the parties to pick up such parts as they wish, to re-write parts as they wish, to apply with respect to providing procedural rules for an arbitration of the dispute agreed by the parties to the arbitrators by some processes between them, whether supervised by an institution such as the PCA or the ICC or some other parties or not, so that the parties do have a useful and workable set of procedural rules. If that approach were correct, it might be suggested that there is no occasion to restrict the applicability of the UNCITRAL Rules to a contractual dispute or commercial dispute. That is the reason that the article has been given to you in case it is of some assistance in making submissions along those lines. Perhaps the parties could indicate if they object to the Tribunal having regard to the matters covered by the article which make propositions to that effect.
MS PARKS: Absolutely. I thank you very much and again on the issue of the rules the claimant is interested in the case moving forward to the merits. So whatever rules the Tribunal finds are more appropriate, the claimant would be willing to adopt.
MR GRIFFITH: Or speaking for your client, if the Tribunal takes the position that it is the issues of substance that are important rather than the question of which of the applicable rules, would your client be content for the matter to go ahead as has been agreed hitherto on the basis of the UNCITRAL Rules?
MS PARKS: Of course. I will summarise briefly the submissions. First, the claimant would submit that this Tribunal can exercise jurisdiction over this case between Lance Larsen and the Hawaiian Kingdom to further clarify the relationship and liability between the acting Council of Regency and the claimant. While a decision on this issue, this relationship may affect a third party, whether it is the United States or the Netherlands or any other nation, that relationship is the subject matter of the jurisdiction and the rights of any third parties is not the very subject matter of the jurisdiction. As several opinions in the East Timor case mentioned, it is up to the Tribunal to balance those interests of the third parties versus the interests of Lance Larsen. I plead today that Lance Larsen's interests are urgent, very heightened and would outweigh any potential effect on a third party. Seeing that Lance has no avenues that he is aware of to go from here to receive a fair judicial determination of his rights with respect to the Council of Regency, if this Tribunal should choose to exercise jurisdiction over this case, the reply sets forth the submissions that the claimant would like to be judged, namely whether the acting Council of Regency has an obligation to protect Lance's nationality on a global level. If so, whether the acting Council of Regency has fulfilled this obligation. Thank you very much.
MR GRIFFITH: Just on the question of the parties, you will remember Procedural Direction No. 3 indicated the issue that parties could be a matter considered on the merits rather than the preliminary issues which are raised by ....
MS PARKS: If they are intertwined, correct.
MR GRIFFITH: And Mr Dubin I think in his submissions on Friday indicated, for example, that, if the PCA Optional Rules were picked up, there would then be an immediate issue as to whether or not the Hawaiian Kingdom was a state party within the meaning of the Convention and the Optional Rules. Hitherto, as I understand it, the proceedings have been conducted on the basis that issues of identifying whether there truly are legal entities as parties to this dispute, which might be regarded to some extent as a matter of identifying the parties ...
MS PARKS: Or a question of standing.
MR GRIFFITH: And any substantive issues which are identified on page 85 of the transcript by Mr Dubin that would be necessary to be deferred for full consideration at the determination of the merits are, as I understand it, to be left over until after we consider these preliminary objections? Is that your understanding of the position?
MS PARKS: My only concern with that route is that that would implicate the requirement of the United States being necessary to ... I am sorry, can you clarify?
MR GRIFFITH: It is a question of what we are doing in these proceedings. As I understand it, they arise from our Procedural Direction No. 3 indicating that there are preliminary issues.
MS PARKS: Jurisdictional issues.
MR GRIFFITH: One was the question of the applicable rules which we seem to have somewhat resolved in the course of the exchanges. The second is the question of identifying the dispute. The third is the issue of the necessary parties, whether or not that applies. You have made submissions on each of those three matters. To that point, we have not addressed as an issue on the merits the question of, is there in fact two legal entities as parties to this dispute.
MS PARKS: There is the acting Council of Regency and Lance Larsen.
MR GRIFFITH: There is the question of the Hawaiian Kingdom as a state party, perhaps.
MS PARKS: Specifically the acting Council of Regency.
MR GRIFFITH: That has been an issue which would be held over were these procedural issues to be resolved in a way which ....
MS PARKS: I understand.
MR GRIFFITH: So that on any view my understanding is that we do not resolve all issues in this arbitration as have been raised by the parties' Arbitration Agreement as amended. Is that your understanding?
MS PARKS: Yes.
THE PRESIDENT: When Mr Griffith said "all issues", he meant, I think, all issues of admissibility. In other words, there are certain questions of admissibility which have been treated by agreement and where the Tribunal has not intervened to say, "No, we want the issues on admissibility argued". There have been certain issues of admissibility treated by agreement as matters intertwined with the merits. The question of the standing of the respondent is one of them.
MS PARKS: Of course.
THE PRESIDENT: More accurately, it is two of them, because there are two issues associated with the standing of the respondent; one is whether the Hawaiian Kingdom exists and the second is whether the person representing the Hawaiian Kingdom are entitled to do so. Those questions are matters of the merit.
MS PARKS: Yes, they are.
THE PRESIDENT: I have a second question which is whether you had a response to the question on fact finding from the Tribunal on Friday.
MS PARKS: It is the claimant's position that fact finding is inappropriate because the facts of the legal dispute are not at issue. If this court were to decline jurisdiction over this case and dismiss this case without addressing any of the substantive matters, then the claimant would be interested in the possibilities of fact finding, but would prefer to cross that bridge at that point. I hope that that is an adequate answer.
THE PRESIDENT: Yes, it is perfectly adequate. It has this implication; that is that it will not be a matter for this Tribunal, because the parties have to agree on the establishment of a fact-finding commission. The respondent in paragraph 130 does seem to have agreed, but without any clarity as to the specification of facts in dispute. You have not agreed. That being so there is no agreement between the parties.
MS PARKS: We would like the chance to sit down with the acting Council of Regency and further discuss which issues would be subject to fact finding.
THE PRESIDENT: That would then be the subject of a separate agreement within the meaning of the Optional Rules and a separate procedure. That would be dealt with on its own terms and in due course.
MS PARKS: Thank you.
THE PRESIDENT: Mr Sai, would you be in a position to respond at, say, 2.15? Does that give you enough time to prepare?
MR SAI: It will be more than enough. Would two o'clock be OK?
THE PRESIDENT: Yes. We will reconvene at two o'clock.
(Adjourned for a Short Time)
THE PRESIDENT: Mr Sai.
MR SAI: I will yield over to the second deputy.
MR DUBIN: Gentlemen, I am pleased to have this opportunity to address you again. In answer to some of your questions, we prepared a two-page summary which I would ask you to just put aside for the moment. Then we will get back to it. First of all, let me say that all of us on the respondent's side have enormous respect for Mr Lance Larsen and for his counsel, but we also have enormous differences in terms of how the issues here are viewed. Perhaps some of you may remember the painting called "The Man with the Hoe" and Mr Marken's poem "The Man With the Hoe" after that painting. The painting showed a worker slumped over a hoe in the field. I remember that the poem ended with something of the nature of "How will we answer this dumb creature's questions when he rises to judge the world after the silence of the centuries?" What we are faced with today is not the silence of the centuries, but the silence of one century. I must correct a misimpression that you three arbitrators may have from what you have heard so far. Rather than this arbitration being some kind of maybe historic evaluation of days gone by, to the contrary, Lance Larsen is just one of thousands of Hawaiian subjects, maybe tens of thousands, all of whom have different ideas as to what should be done to rectify what they consider to be a violation of their rights. The reason why the present Government of the Hawaiian Kingdom accepted this responsibility to participate in this arbitration was the belief that it provided a vehicle to get an informed opinion from individuals such as yourselves sitting in the role of arbitrators as to the situation, the facts and the law pertaining to this unique situation. In no way was this intended as some kind of a moot issue where the parties agreed on everything. Additionally, there is no attempt on our part to take your procedures and mould them into our needs. What we have to do is to take a very unusual historic situation and try to mould our situation into your procedures. Frankly, I think that it was quite a challenge, but I really do believe that we have done that. I think that there is no better way to demonstrate that to you than to take your challenge to identify the specific issues that need to be decided. If you can look at the summary that I have passed out to you, you will see on the first page that we have identified the claim that has been made, that through the inaction of the Hawaiian Kingdom Lance Larsen has experienced his problems. We have been talking about concepts like, is it possible that there could be two sovereigns and one territory? The reality of it is that the United States Government itself has recognised the fact that the overthrow of the Hawaiian Kingdom Government was unlawful. The United States itself has recognised that the sovereignty of the Hawaiian Kingdom, in fact, was never terminated. I call your attention to paragraph 372 of the memorial of the Hawaiian Kingdom Government which references the 1993 apology resolution. By the way, that apology resolution is set forth as Public Law 103-150 as Annex 31 to the claimant's memorial. In that resolution passed by both Houses of Congress and, as a joint resolution, signed by the President of the United States, the Congress goes through the history of the Hawaiian nation, it takes responsibility for the fake revolution, recognises that the wishes of the Hawaiian people (the Hawaiian nationals) were never consulted, for example, says that "whereas the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States either through their monarchy or through a plebiscite or a referendum" and officially apologises to the Hawaiian people. If that is not enough, in the recent case of Rice v Cayetano, decided by the United States Supreme Court, the Solicitor-General of the United States - and we know how important an office that is - has pointed out in paragraph 375 ...
MR GRIFFITH: Is that an annex, Mr Dubin?
MR DUBIN: Yes, it is. It is annex 31 of the claimant's memorial. Paragraph 375 is the Hawaiian Kingdom memorial. But the Solicitor-General is telling the United States Supreme Court between 1826 and 1893 "the United States recognised the Kingdom as a sovereign nation and signed several treaties with it. The United States has concluded that it bears a responsibility for the destruction of their Government" - not the nation, but their Government - "in the unconsented and uncompensated taking of their lands". What is significant about this is that this represents a judicial admission which is as binding or more binding than a stipulation, I submit to you acknowledging the continued existence of the Hawaiian Kingdom.
MR GRIFFITH: Mr Dubin, did you say annex 31, because that seems to be the joint resolution?
MR DUBIN: What I have here says annex 31. It is the memorial of Lance Paul Larsen, 22 May, 2000.
MR GRIFFITH: I have the joint resolution as annex 31.
MR DUBIN: Yes, it is the joint resolution, Public Law 103-150.
THE PRESIDENT: But you are reading from the Solicitor-General's argument in Rice -v- Cayetano.
MR DUBIN: I am. I first started out by reading from the joint resolution.
THE PRESIDENT: That is reference to Rice v Cayetano?
MR DUBIN: Since it had just been decided, it was listed, as a number of the Supreme Court cases, 98-8-18.
THE PRESIDENT: But that is not in the pleadings, is it?
MR DUBIN: Yes, it is. It is in footnote 532 of the memorial of the Hawaiian Kingdom. Also it is quoted in paragraph 375 of the memorial of the Hawaiian Kingdom.
THE PRESIDENT: Could you just read what the Solicitor-General said about it again?
MR DUBIN: This is only a part of it, but it says, "Between 1826 and 1893 the United States recognised the Kingdom as a sovereign nation and signed several treaties with it. The United States has concluded that it bears a responsibility for the destruction of their government and the unconsented and uncompensated taking of their lands".
THE PRESIDENT: That is a verbatim quotation from the Solicitor-General?
MR DUBIN: That is correct.
THE PRESIDENT: It does not actually say that the Hawaiian Kingdom continues to exist, does it?
MR DUBIN: No.
THE PRESIDENT: It says that the United States has a responsibility?
MR DUBIN: It does not say that. Actually in the joint resolution there is more the substance of that, but what is important is that the sovereignty of the Hawaiian people is now being recognised by the Government of the United States. There has recently been before Congress a bill to recognise the sovereign status of the Hawaiian people in the same way in which the Indian tribes are given sovereign within the Department of Indian Affairs. Many people in Hawai'i - many Hawaiian nationals - have subscribed to that as an alternative. That is what makes this arbitration so important, because there are alternatives, such as the sovereignty within a sovereignty. Others feel that they do not really want to wear loincloths and be known as a tribe, because the key distinction that we are advocating as a matter of international law is that the Hawaiian nation was not a nomadic tribe, but had the indicia and the recognition of a nation state. That is the key distinction as we understand it. That, we feel, is being lost in the debates today. The reason why the Hawaiian Kingdom Government re-established agreed to this arbitration was in the hope that through this arbitration that principle of international law could be clarified and then the people in Hawai'i would have guidance which they do not have today. That is the real reason why the Hawaiian Kingdom Government saw this as an important opportunity to get the judgment of an international tribunal as to those relationships, because that information/that focus is not receiving attention. Yet those who have done the research and those who have re-established the Hawaiian Kingdom Government have come to the conclusion that those are the fundamental rights of a nation state under international law that deserve to be addressed and given attention. We feel that if, in fact, we are correct and if, in fact, this arbitration can address those issues, that that will be an important step in the re-establishment of the Hawaiian Government as well as the protection of the Hawaiian nation state or Hawaiian Kingdom. That is the importance of this case. This case has nothing to do with Lance Larsen's passport. That is not even before this arbitration. It has nothing to do with what the Netherlands Government may have done in relationship to deporting him. It has nothing to do with other nations in the world. It has to do really with the role of the Hawaiian Kingdom Government in dealing with the problems that it now has with a thousand or more Lance Larsens, each with their different view of what should be done.
MR GRIFFITH: Can I ask a question about that? Is the concept of sovereignty which you address that of sovereignty over Hawaiian nationals or is it a geographical sovereignty, namely sovereignty over the entire Hawaiian Islands, including all those who are resident there, whether they be Hawaiian nationals or for the moment regarding themselves as not Hawaiian nationals but nationals of the United States?
MR DUBIN: I think that you have asked a number of questions.
MR GRIFFITH: That is true.
MR DUBIN: I think that the simple answer is both, but that does not mean that, obviously, a lot of careful consideration has not to be given to unwinding a hundred years, if someone, for example, went further than the apology resolution, went further than the Department of Indian Affairs concept, but actually said, "We apologise and we have got to do something about it". To most people that does not mean that you kick everybody out. To most people it means that you have to provide for citizenship of the people who are there if they wish it. But the international community has amazing versatility in figuring out the answer to complex problems. That would be another stage along the process. We are here because the Hawaiian Kingdom and the Hawaiian nationals need a better understanding of the position of the Hawaiian Kingdom in international law, given the complexity of the present situation. There is nothing moot about that because this Man with the Hoe, as it is, is waking up. Lance Larsen and others have thrown away the hoe and they are asking important and embarrassing questions. We are not dealing with the Nazi occupation of the Netherlands during World War Two. We are dealing with the United States of America which is attempting to deal with an embarrassment in the best way that they can. As the American people become more understanding of what actually happened, one can anticipate that there is going to be a lot of public pressure to do something about it. This Tribunal can make an incredible contribution to those choices and those alternatives in that debate by answering the questions that I posed in the handout that I gave to you. It starts on page 1 with the claim. The Hawaiian Kingdom is liable towards the complainant with respect to his injuries by allowing - I want to emphasise - through its inaction the imposition of United States municipal laws over his person within the territorial jurisdiction of the Hawaiian Kingdom. That is the claim. When you are in the predicament in which the Hawaiian Kingdom is, you have to take each claim for what it is worth. That claim may not be as well written as some would like it to be, but it has brought us here before all of you. The argument that I am presenting to you, and partly in response to your question for the parties regarding what facts would be submitted to a commission of inquiry, is to suggest to you on page 1 that, essentially, there are four major factual threshold issues that need to be resolved between the parties.
MR GRIFFITH: Mr Dubin, I do not want to take you out of order, but, having regard to the headings of these three columns, referable to the PCA Optional Rules, were the Tribunal to take the position that these questions could equally be addressed under the presently-applicable UNCITRAL rules, would you have any difficulty about that?
MR DUBIN: No, I have to tell you honestly that we are delighted to proceed under any of the three. We started with the Optional Rules because we thought that that put the clear focus, because, in order to proceed under the Optional Rules, one of the parties has to be a state. Therefore, the threshold jurisdictional issue is, is the Hawaiian Kingdom a state? That is a very important part of our work.
MR GRIFFITH: But I understood your submissions on Friday to be that that issue would come up whether you proceed under the Optional Rules or the UNCITRAL rules.
MR DUBIN: Absolutely. In other words, we have the obligation of fitting ourselves into your pigeon holes or the pigeon holes of these institutions.
MR GRIFFITH: That is not exactly right. You are the parties and you have agreed on the rules and that is the rules under which we have been constituted.
MR DUBIN: But that is the easy part of it, because each body of rules has its peculiar things. With the Optional Rules you have to have a state. Until today I thought that under the UNCITRAL rules it had to be a commercial dispute.
MR GRIFFITH: We have not ruled on that, but I think that you can take it that it does not have to be.
MR DUBIN: Well, that is fine with us. What we really wanted was the three of you and we have got you and we are trying to keep you.
MR GRIFFITH: But you defined the pigeon holes and the first three pigeons in the holes was us three who you appointed, but there is no obvious reason why it cannot proceed under the UNCITRAL rules and you make the same submissions.
MR DUBIN: No, that is fine. It appeared to us like we could not, but we would be happy to proceed under the UNCITRAL Rules.
THE PRESIDENT: The point is that even if it were the case that the UNCITRAL Rules - I mean, there is a textual problem with the UNCITRAL rules which we pointed out, but, even if it was the case that the UNCITRAL Rules on the face of them required that the dispute be characterised as commercial, that is a matter between the parties and the basic principle of the UNCITRAL rules is part of the autonomy. Between yourselves you can waive that requirement without any difficulty. The problem is that it is more difficult to waive the requirement of the consent of the third state, if there is such a requirement.
MR DUBIN: That is the issue. That is the entire issue. Can we proceed in the absence of the United States?
MR GRIFFITH: Mr Dubin, that is the issue whether you go under one set of rules or the other.
MR DUBIN: Exactly. I have categorised this first issue, does the Hawaiian Kingdom continue to exist as a nation, as a historical fact, because it had the attributes of a nation state. If one looks through the history, one can see that those attributes were never terminated.
PROF GREENWOOD: Mr Dubin, with respect, while there is obviously a factual issue there, the issue cannot be regarded simply as one of fact. It is a matter of legal characterisation of the facts. It is like the old chestnut that you set a first-year undergraduate student: the difference between fact and law in a case of tort. There are factual issues to be resolved, but the question whether a defendant is liable is a question of law. It is the application of law to the facts.
MR DUBIN: Again, after almost four decades of practising law, I once again feel that the distinction between law and fact is the conclusion of thought not the trigger of thought. For example, I do not think that there is anything that is a pure fact. Even if there is an issue as to where the vessel was when the accident took place, you would not be asking me the question unless no one was quite sure where the vessel was. What may decide that may be presumptions which are really questions of law as to how you are going to resolve them. There are things that are more factual and there are things that are more legal, but most legal propositions have factual under bellies.
PROF GREENWOOD: Can we try to tease that out a little? If the question is was this ship two and a half miles off the coast at the time or three and a half miles off the coast, which was the case in at least one of the fact-finding inquiries, the reason why you ask that question is because of the rule of law which in those days was that the extent of territorial waters was three miles. But there is still a question of fact which is where was the ship at the time? But that is a question of fact just like am I sitting here in the Peace Palace listening to you this afternoon?
MR DUBIN: But the only way you may resolve that question of fact is by applying law which would be presumptions, as, for example, who had the burden of proof? Because in the law we never really know what the facts are, it is what we decide we are going to assume and take to be the facts. Proof is what we are really looking at not the facts.
PROF GREENWOOD: All right. The means of ascertaining what the facts are - there are various rules of law about how you do that, rules on the admissibility of evidence, rules on the burden of proof. In international law, these are (shall we say?) not quite as stringent as they are in domestic law, and certainly not in the common law system. But, nevertheless, there is still a difference between an issue of fact and an issue of law and that difference is critical when you are looking at the possibility of fact finding. That is where I have a bit of a concern about the link between your first and third columns here. If you were merely using the first column to define what are the issues that need to be resolved, then I would not be disputing the point with you now, but to describe them as four major factual issues - has the Government of the Hawaiian Kingdom been re-established pursuant to its laws as a contemporary fact? Well, that is preeminently a question of law. Does the Government of the Hawaiian Kingdom have a duty to act to protect its nationals? That is even formulated as a question of law.
MR DUBIN: You are going to apply law, but you are going to be looking at the facts.
PROF GREENWOOD: That is always going to be the case. I say "always" - it is almost always going to be the case.
MR DUBIN: I agree. Unless you have pure questions of fact like the vessel situation, it gets close to it. You are always going to have mixed questions of law and fact.
PROF GREENWOOD: Mixed questions of law and fact are not generally suitable for fact finding. A fact-finding process is for finding facts. It is not for resolving questions of law and finding facts.
MR DUBIN: Let us say, for example, that you were to conclude that the Hawaiian Kingdom did exist and you were to conclude that a nation state is terminated when a plebiscite takes place which shows that the people have changed the sovereignty, for example, and there was a factual issue as to what happened during that plebiscite and actually who voted during that plebiscite. Were those people qualified to vote in terms of that standard of international law? Would you not then have agreement on the law? The issue would be what the facts were. The conclusion would be whether or not the nation state existed, but it would be based upon a factual inquiry that triggered the law which was accepted and not disputed.
MR GRIFFITH: Mr Dubin, you can never have agreement on the law. If you have a tribunal or a court, they have to take a view as to what the legal position is. They cannot be bound by the parties' agreement on what the law is.
MR DUBIN: There is no suggestion that any tribunal would be.
THE PRESIDENT: In your questions one and two you seem to be drawing a distinction between historical facts and contemporary facts. Question one is, does the Hawaiian Kingdom continue to exist as a nation state as a historical fact?
MR DUBIN: Because most of those events took place significantly in the past.
THE PRESIDENT: Yes, there is no difficulty with accepting the existence of the Hawaiian Kingdom as a state in the 19th Century, whatever might have happened at the time of the joint resolution or thereabouts, but that question seems to be formulated in terms of the present day rather than the 19th Century.
MR DUBIN: You could bring it up to 1959. We would still be in historical facts.
THE PRESIDENT: Yes, but if we bring it up to 2000. Presumably, at the merit stage it will be necessary for the Tribunal to answer question one as at 2000.
MR DUBIN: If nothing changed, that would be true. The actual date would be 1959, I think, for all practical purposes, and that was statehood.
MR GRIFFITH: Your question one really has two issues. One is was the Hawaiian Kingdom a national state, say, in 1895? One might say that that is something that can be established.
MR DUBIN: 1895?
MR GRIFFITH: Yes, as a historical fact. Then your question one is really predicated on a "yes" answer to the first question, is it not?
MR DUBIN: Yes. In other words, you can take each of these issues. That is why I called them factual issues. You can break them up. They are really sets of facts. For example, you could do fact finding if everything was clear except for the facts. But, again, honestly, we are trying to fit this unique case into the pigeon holes that we have.
MR GRIFFITH: I may have a false impression, but I understood that we had a consensus more or less that neither party wished us to go for fact finding. Is that not the case? Your paragraph 138 seemed to leave it as very much last and not the preferred choice, but, as I re-read the transcript, it seemed to me that the parties very much expressed the view on reconsideration that they felt that it was not appropriate to maintain the request for fact finding. Is that not the position?
MR DUBIN: I believe the position of the Hawaiian Kingdom Government is that we prefer to proceed under the Optional Rules because we feel that the Tribunal would then have a duty to address the jurisdictional issue as to whether or not the Hawaiian Kingdom Government was a state. We think that that gets us directly at the issue. That is why on Friday I suggested that I disagreed with the Tribunal's fourth procedural order in suggesting that you would not get to that until this other jurisdictional issue was decided. Because we think the Optional Rules actually present that issue, because you have got to have a state; failing in that, we would certainly be happy to proceed under the UNCITRAL Rules if, in fact, it was appropriate and allowable to do so. If we could not do that, then, if we could fit ourselves under fact finding, we would be happy to go and do that, too, because the fourth alternative is the exit door.
THE PRESIDENT: But, in fact, the effect of what Ms Parks said this morning was that, in the event that the Tribunal were to decide that the case could not proceed either under the UNCITRAL Rules or under the Optional Rules as an arbitration, that it would then be a matter for the claimant to sit down with the respondent and talk about the possible constitution of a commission of inquiry for fact finding, though that would not be part of these proceedings. Since it requires the agreement of both parties to do it, that position seems to dispose of the question in so far as these proceedings are concerned, whatever your attitude is. That is a question.
MR DUBIN: What is the question? We would be happy to proceed under a fact-finding rule.
THE PRESIDENT: The question is, do you agree with the proposition that it would be necessary for the parties to be ad idem, that is to have an agreement on submission to fact finding?
MR DUBIN: Yes, I would. Let me just go back to the decision path on page 2. We felt that the logical order of progression would be a determination as to whether the Hawaiian Kingdom continues to exist and has the Government been re-established. Then does the Hawaiian Kingdom have a duty to protect its nationals in avoiding the unique situation that we are in. Then, furthermore, outside seeking help in the international community.
MR GRIFFITH: You say in your submission that the answer to questions one, two, three and four is "yes". Is that your submission to us?
MR DUBIN: Yes.
MR GRIFFITH: The claimant would say that, too. You are agreed on that?
MR DUBIN: I believe that the claimant has said that.
THE PRESIDENT: So it is only question five on which there is disagreement?
MR DUBIN: Yes, but you cannot get to question five unless you go through this logic. I tried in this chart on page 1 of my handout to argue that you could proceed to look at each of these issues under either the Optional Rules, certainly the UNCITRAL Rules, or even fact finding. I looked through the fact-finding cases and at least the reasoning of those cases was more involved there than just pure fact finding, as far as I could see it, but the real issue, as we know, is this phrase "the very subject matter of the dispute", because, when Monetary Gold, East Timor and Nauru were decided, the International Court of Justice reasoned using this standard "the very subject matter of the dispute".
MR GRIFFITH: I think that it was only in East Timor that they got to that. It was a progression.
MR DUBIN: That is right. Then they referred back to the other cases and brought them into that rubric. I just wanted to summarise for you that everything in our case comes in five. I want to summarise for you the five reasons why we believe that this language "the very subject matter of the dispute" - and, by the way, sometimes it just says "subject matter" and sometimes it says "very subject matter" - should not be a bar to our proceeding forward. First, as you know, I have tried to distinguish the cases, because I, frankly, do not feel that the three cases that we have looked at had to be decided on that rationale in the first place and that this phrase "very subject matter of the dispute" is to me not a very satisfying standard and I doubt that it will be around much longer as we get more and more cases in this area. First, I tried to distinguish those cases. I think that it is important to understand that, contrary to the implications and the questions that Professor Greenwood was asking Ms Parks, we feel that the arbitration could proceed on the assumption as to whether the Hawaiian Kingdom is not performing its duties by not appropriately challenging the legality without concluding itself that the occupation was illegal. It is not really illegal or legal, it is illegal or legal or maybe illegal. That is the first thing that we were trying to do with this "very subject matter of the dispute" language - distinguish the cases. The second thing that I tried to do was to reject the reasoning and suggest to you that I find it much more satisfying to use the standard of prejudice. At least in these cases they are all prejudice. Theoretically, there would be no prejudice in the United States, except I understand that sovereigns in the international community should not have their hands slapped, so maybe it would be taken as a hand slap. Obviously, if this Tribunal decided that the occupation of Hawai'i was illegal, they are not going to start dismantling Pearl Harbour. The third attack that we have on this "very subject matter of dispute" language is that we can apply these cases and still go forward. Now I have provided you with what I think is the best given that you could come up with - and that is a stipulation by a party that they acknowledge that the overthrow and the takeover was unlawful. They apologise for the takeover and they have a bill to recommend - and the President recommends it - that we create a dual sovereignty and give the Hawaiian people some form of sovereignty just like an Indian nation. In the law a judicial admission is stronger than an admission or a stipulation. Here we have the United States Governments making a judicial admission in an active case in the United States Supreme Court just a few months ago, so we feel that, even if you do take these cases seriously, as we have to, I suppose, like East Timor, we have a given which was certainly much better than the given that was argued in that case. It was not satisfactory. We have the mother of all givens.
MR GRIFFITH: Mr Dubin, usually to bind a party with an admission, you have to have them as a party in the proceedings.
MR DUBIN: That is true except that here we have a judicial admission, which means that that became part of the case. If the United States Supreme Court, for example, had said that Hawai'i is an independent sovereign state, then we could have taken that, I suppose, as some sort of higher authority for this Tribunal to rely upon.
MR GRIFFITH: But the United States Government could say in an international tribunal that they got it wrong.
THE PRESIDENT: More likely they could say that what they said did not go as far as you had presented it, in the sense that there are certainly admissions in the joint resolution or Public Law 103-150, but they do not go so far as accepting the continued existence of the Kingdom of Hawai'i.
MR DUBIN: I am not sure that the language really cannot be read to go that far.
THE PRESIDENT: I am sorry, Professor Greenwood has been seeking to ask a question for about five minutes and I can restrain him no longer.
PROF GREENWOOD: Do you want to finish your five and then I will come back to you?
MR DUBIN: The fourth answer that we have to the "very subject matter of the dispute" is that there is enough here to, we believe, conclude that the jurisdictional issues are so intertwined with the merits that the matters ought to be looked at together. There is a web of treaties, declarations, agreements, reliances, estoppels, admissions and apologies that have not stopped, such that the merits are so intertwined with this that we should not conclude yet that the "very subject matter of the dispute" is a bar. Fifth, if fact finding were to allow us somewhat more flexibility, we would certainly be willing then to retreat to a fact-finding inquiry by commissioners. Those are my five arguments.
PROF GREENWOOD: Might I get back now to my question? The problem, it seems to me, that you have is that, even reading the apology act in as extensive a way as possible, it still, surely, falls far short of an acceptance by the United States, even if it were an acceptance on which we could actually act, given that the United States is not here before us, of the sort of matters that you raise in questions four and five. It is certainly not an acceptance by the United States Government that its occupation of the territory amounts to national genocide. I think that it would be fair to say that it is not obvious to me, at least, that in the statements that you have read to us the United States Government has acknowledged that its imposition of US municipal laws over the people within the territorial jurisdiction of the Hawaiian Kingdom is an unlawful act. If you look at that fifth question, which you frankly told us is the only one of the five you have outlined on which there is a difference of view between the parties in this arbitration - and I hope that Ms Parks will make clear to us if she does, in fact, disagree with you about anything to do with questions 1 through to 4 - but, if you look at question five - is the Hawaiian Kingdom liable towards the claimant with respect to his injuries by it allowing through its inaction the imposition of United States municipal laws over his person within the territorial jurisdiction of the Hawaiian Kingdom? - the Hawaiian Kingdom could only be liable in respect of the imposition of the United States municipal laws if the United States is not entitled to impose its municipal laws. If you then turn to the passage at the top of page 33 of Monetary Gold - I ought to be reading it in French because it is a judgment given in French, but I am afraid that my French pronunciation is such that ----
THE PRESIDENT: Please don't.
PROF GREENWOOD: - I think that it would be better if I did not. The top paragraph on page 33 says, "It is also contended that any decision of the court on the questions submitted by Italy in her application would be binding only upon Italy and the three respondent states and not upon Albania. It is true that under Article 59 of the Statute a decision of the court in a given case only binds the parties to it and in respect of that particular case. This rule however rests on the assumption that the court is at least able to render a binding decision. Where, as in the present case, the vital issue to be settled concerns the international responsibility of a third state, the court cannot without the consent of that third state give a decision on that issue binding upon any state, either the third state or any of the parties before it". My question for you is, does question five not raise exactly this issue, the vital issue to be settled concerns the international responsibility of the third state? Because, absent that responsibility, the Hawaiian Kingdom has no liability to Mr Larsen?
MR DUBIN: No, because it could have liability for not challenging the illegality of the United States presence in the Hawaiian territories. Secondly, this conclusion did not need to be drawn from the facts of the Monetary Gold case. So I suppose many times like in the common law it depends which case gets there first. Let us assume that the Hawaiian Kingdom case had gotten there before Monetary Gold. A different distinction might have been drawn. Then the Monetary Gold case would have come up. Then somebody would have read the reasoning in the Hawaiian Kingdom case and then said, "Well, you can easily go and affect the third party". Then someone would have had to say, "Well, the Hawaiian Kingdom case was different". I submit to you that the Monetary Gold case could have been resolved without getting into this broad language at all and does not really address what we have here. What we are saying is that the claim here is that the Hawaiian Kingdom Government is not doing what it should do in order to challenge the lawfulness of the United States.
PROF GREENWOOD: But, Mr Dubin, the fact that the court could have decided the case on a different basis does not in itself invalidate the decision that it did not take, particularly given that it has reaffirmed that decision in two subsequent cases, one of which falls on one side of the line and the other on the opposite side.
MR DUBIN: But even in those cases the facts could have led to a result which would have been the same but not for the same reasoning. There is nothing logically or from a fairness point of view offensive in the notion that a national can argue that his Government is not challenging an occupation that has all the indicia of legitimacy. That issue being decided without having to decide whether or not it is actually legitimate, because, especially in the case where the occupying power or the new sovereign, let us call it, apologises for the overthrow, that even suggests the possibility of dual sovereign status. If you were a national of that state, you might not be satisfied to have distributed to you loincloths and become a part of the Department of the Bureau of Indian Affairs. In truth what is happening here is exactly what I am talking about. The question is, of course, to what extent efforts have been made by the re-established Hawaiian Government? In fact, this is one of the efforts that is being made.
PROF GREENWOOD: I will not interrupt you further on it, I have the submission. Thank you.
MR GRIFFITH: Mr Dubin, if we are on column five at the moment, I think Ms Parks's submissions were that something should be done to protect Mr Larsen. Do you have any submissions to make in denial of that claim?
MR DUBIN: I suppose maybe, if we do not succeed here, they could argue we did not do a good enough job.
MR GRIFFITH: The question is that it is put that unspecified actions should be taken to protect Mr Larsen. Part of the exchange with the Tribunal was, in effect, to ask whether in essence that meant to take action to remove the occupying power. I think that that was one of Ms Parks's propositions in the end. Inasmuch as the respondent denies liability with respect to any content of the duty that has been breached, is there any specific content to say that, inasmuch as Mr Larsen is a national, which is agreed, the duty runs so far and no further, when we do not know what the content is of what is alleged not to have been done or what is denied as an obligation?
MR DUBIN: It is not our position that we should remove the United States from the Hawaiian territory. That is not the responsibility of the Government. But we do accept responsibility as the Government of the Hawaiian Kingdom to secure the recognition of the continued existence of the Hawaiian nation.
MR GRIFFITH: And do you submit that you have done all you can or do you say that this proceeding was part of that?
MR DUBIN: I suppose that, if we do not win here, then Mr Larsen could criticise us for doing a bad job.
PROF GREENWOOD: I am sorry, I do not see that at all. If you do not win here on the merits, then that can only be because Mr Larsen has won. So how could he possibly regard that as a case of you not having done your job sufficiently?
MR DUBIN: No, I am talking about jurisdiction, not the merits.
PROF GREENWOOD: I am still a little puzzled, because that suggests that you regard these proceedings on the part of the Hawaiian Kingdom as being one of the means by which you discharge your responsibilities to Mr Larsen.
MR DUBIN: I think that one of the ways in which we discharge our responsibility is by defending to show that we have taken action and in the process establishing the legitimacy of the Hawaiian Kingdom and its re-established Government. That would be one of the ways in which we would show that. In conclusion, I think that I would submit to all of you that this is a very unique case.
MR GRIFFITH: That is not possible, Mr Dubin. You can have unique or not unique, but you cannot have "very unique".
MR DUBIN: Then how can you have the "very subject matter of the dispute"? This is a unique case because it falls between the situation that may be moot and the situation that may require the presence of the United States as a party. We tried to design our part of the arbitration so that it did fall in the middle, although there are many people in Hawai'i (nationals, sympathisers with Hawaiian causes) who would like us to do so, but we have tried to steer a middle course on that issue. It is unique because the Optional Rules, the UNCITRAL Rules, the fact-finding rules, seem to fit, yet they do not seem to fit. It is unique because in a way in the Nauru case, the Monetary Gold case and the East Timor case the reasoning all seems to suggest that you cannot do it without the United States being there, but, if you look at those cases and the way in which they were decided and the fact that there is no interim relief being sought here, there is no resulting interference with absent third party contractual relationships, this is a unique case. One of the problems with unique cases is that tribunals can sometimes go either way. All I can suggest to you is that this is certainly not an intellectual exercise. This is a very important issue nationally so far as the confines of the United States are concerned. It is important to the Hawaiian nationals and it should be important to the international community. That is the downside. The upside on the unique cases is that they tend to put in bold relief and perspective. In some cases, such as Monetary Gold and East Timor, it is just taken for granted. I think that we have gone the entire spectrum. We have come very close to a given. If the only given is a decision by the International Court of Justice, then, once again, you might as well throw away the concepts of a given, because, if you had a decision by the International Court of Justice, you would not have to refer to givens. I think that we have come pretty close to answering your questions factually and legally concerning whether you have jurisdiction to proceed.
PROF GREENWOOD: Am I right in saying that the essence of your quest, if you like, is this, that you acknowledge that on the one side is the whirlpool of dispute, which is not really a dispute at all and it is moot, on which we therefore cannot pronounce, on the other side is the rocky shore of a case that cannot be decided in the absence of the United States? Is there, in fact, a way between those two? If there is a way between those two, have you actually brought yourself within it? Have you found that path?
MR DUBIN: If we have not, we have come pretty close in the last couple of days, because we are not asking for an adjudication that the United States occupation is illegal. I think that that is a major difference. I think that we are sailing between the rocks.
MR GRIFFITH: If I have understood your submissions, including these tables, it is in the context of an understanding by all present that this hearing is for the purpose of addressing the preliminary issues raised in our Order No. 3 as further addressed in Order No. 4 to deal with the issues of admissibility to the extent of arbitrability and also the issue of necessary parties, with the further matter of applicable rules also raised, which I think that we can put to one side for the moment. For myself, I hear your submissions on these issues, including this table in the context of responding to those issues. Is that your understanding as well?
MR DUBIN: That is correct, although we are at a little disadvantage, because we do not have the time and it was not in the procedural orders to present the merits of the case.
MR GRIFFITH: It is not a question of not having the time. We are happy to sit here for a week or a month to let the parties argue exhaustively all issues, but it is in the context - speaking for myself, and I will let the President express it in his own way for us all - that it is my understanding that the submissions by both parties in the last three days have been for the purpose of assisting us to determine these preliminary issues which were identified and set down for hearing. We do not want it to be thought for a moment that the parties have not had an opportunity to put all arguments that they wish on those issues. For myself, I will cancel my flight to Australia on Wednesday and stay here until Christmas if the parties feel that they need a further opportunity to present their arguments.
MR DUBIN: No, I was just saying that we feel that the merits are intertwined with the jurisdictional issues.
MR GRIFFITH: Of course, I understand that.
MR DUBIN: And you have a better understanding.
MR GRIFFITH: That is how, listening to you, I am regarding these submissions, that, in the context, I understood on Friday you submitted that, if we took the Optional Rules, we may have to advance consideration of this issue of the merits that you identified on page 85 of the transcript, issues which must be determined as part of a resolution/determination of the merits, but I understood those submissions to be made in the context of assisting us to decide these preliminary issues and that my understanding is - and I hope the position of the parties also is the same - that it is not the function of this hearing finally to determine all issues on the merits.
MR DUBIN: Correct.
MR GRIFFITH: That is your understanding.
MR DUBIN: Mr Sai is here and he was going to follow up, if you desired it, and go through this issue of the continued existence of the Hawaiian state in terms of the merits.
MR GRIFFITH: That is very useful and I must say that I found the summaries in the memorials and also the presentation on Friday a great help in bringing to the forefront of my attention this, as I could call it, very solid history.
THE PRESIDENT: Mr Dubin, obviously international tribunals have some discretion as to which points they take and in which order. The point of our procedural orders was to exercise that discretion to identify certain issues and not others. There were some other issues that might conceivably have been taken as preliminary questions, but we tended to agree with your position that those issues, in particular the continued existence of the Hawaiian Kingdom, was so intertwined with the merits that they were better not taken as preliminary issues. In any event, that is the way in which we have done it. Whether we get to those issues and in what subsequent order depends on the outcome of these proceedings.
MR DUBIN: We feel that by applying acknowledged principles of international law and the reasoning in the acknowledged text to the factual history which is not in dispute, one could conclude that the Hawaiian Kingdom as a state had never been terminated. That does not necessarily mean that the occupation of the United States is illegal. In fact, the United States has offered sovereignty now to the Hawaiian nationals in a certain form. In fact, the United States recognises, I think, hundreds of Indian tribes that have a sovereignty within a sovereignty.
THE PRESIDENT: Just as a matter of interest, would the recognition by the United States of the Hawaiian Kingdom as having the same status as the recognised tribes be consistent with Rice v Cayetano? I do not ask this because I think that anything hangs on this, because I do not think that anything does.
MR DUBIN: Some people would say that it was not, but the concept there is self-determination. We reject the concept of self-determination because we are coming from the perspective of a nation state and not a nomadic tribe that needs the auspices of the General Assembly to protect it so that it can have self-determination. There already was self-determination.
MR GRIFFITH: Mr Dubin, going back to your reference to not having the time, I am really most concerned that we do not adjourn without the parties making it clear either that they require more time or that they accept that they have had all the opportunity that they need to make written or oral submissions to us or, if they require an opportunity to make closing written submissions within a reasonable time after this adjournment, if they could indicate if they wish that opportunity.
THE PRESIDENT: I was, of course, going to ask those questions and have that discussion when your submission was concluded, but, obviously, that is matter of which the Tribunal as a whole would need to be satisfied, that both parties felt that they had had adequate opportunity to present their case on the issues identified in Procedural Orders Nos. 3 and 4. We could also have a discussion on whether either of you feel that a further opportunity for written submissions within a fixed and not too long a period of time would be useful. I simply note that. Perhaps you could finish your submissions on any remaining issues and we will come back to that right at the end.
MR DUBIN: I just wanted to say that I have to talk to my colleagues regarding that, but I think that we would like the opportunity to show that the Hawaiian Kingdom continues to exist as a nation state as a basis for satisfying the requirements of the Optional Rules.
THE PRESIDENT: The position on which the case has proceeded so far is that the parties, having sought to agree to submit the matter to arbitration pursuant to or under the auspices of the Permanent Court of Arbitrary, eventually agreed that it would be submitted pursuant to the UNCITRAL Rules, though they have both indicated their preference for doing so under the Optional Rules. It is an issue in this phase of the proceedings whether there is any difficulty about proceeding under the UNCITRAL Rules. If the Tribunal were to come to the conclusion that the UNCITRAL Rules were unsuited for these parties by reason of the nature of the subject matter or whatever other reason and that the Optional Rules were the better vehicle, there might then arise a question whether this issue was arbitrable under the Optional Rules and we would not decide that issue without giving you an opportunity to make that demonstration. That is a contingency at present.
MR DUBIN: As the Tribunal knows, we started out under the Optional Rules, then it was suggested that we should proceed under the UNCITRAL Rules and then we changed it.
THE PRESIDENT: You say "started out", but what happened was that the Permanent Court of Arbitration, as I understand it, was not prepared to act as the supervising authority except on the basis of the submission under the UNCITRAL Rules and the parties proceeded on that basis, affirming, nonetheless, while doing so their preference for the Optional Rules. The question of that choice is still open, but, nonetheless, the proceedings have gone on on the basis of the UNCITRAL Rules. Mr Griffith has pointed out that if and when the Tribunal were to get to the merits the same issues of merits would have to be resolved. I do not think that anyone denies that, to the extent that questions are admissible between the parties, whether they involve the continued existence of the Hawaiian Kingdom, the validity of your retainer or any other delicate questions, those issues would have to be resolved either under the UNCITRAL Rules or under the Optional Rules, so neither party is prejudiced in that respect by the choice of rules, although we understand your preferences.
MR DUBIN: Are there any other questions that the panel has?
THE PRESIDENT: At the moment the Tribunal is going to adjourn for five or ten minutes because I think Ms Parks may need, if Mr Larsen does not mind being rung again, just to confirm - at least she needs to consider herself whether she is in a position to respond to the questions that I am going to raise and what the response should be. Before we get to that, do either of my colleagues have any further questions on the issues? [No response] Mr Sai, is there anything else that you wanted to say on the issues that we have debated over the last three days, subject to the question of possible written post-hearing briefs to which I will come in a moment? Is there anything else that you needed to say today?
MR SAI: Yes, I would like the opportunity.
THE PRESIDENT: Good. Mr Sai.
MR SAI: Good afternoon, Mr President and members of the Tribunal. Before I begin I would say that I have had a lot of time to reflect on what has been happening through the proceedings, trying to come to clarity as to what are the specific issues as they relate to both the rules as well as the jurisdictional issue. Listening to what has been happening, I felt that it was imperative that I need to present another side to the story, I believe a side that was not presented. That is not one of an emotional sense, but rather on a previous understanding before the arbitration actually began, as I am the agent representing the Hawaiian Kingdom, but I am not an attorney. I am more of a historian. My job is acting Minister of Interior. A lot of these arguments were based upon issues of law, but yet the jurisdictional issue is really interwoven with some of the merits, as the primary concern is the continuity of statehood. One of my biggest concerns here, as the agent representing the Hawaiian Kingdom, is that there seems to have been a blend between occupation and de facto status, in a sense placing the United States as a sovereign state on an equal footing with the Hawaiian Kingdom as a sovereign state within one and the same territory. That there must be a point of demarkation. What came first - the chicken or the egg? In this regard I wanted to share and submit some of my thoughts on a matter of international law, again subject to the Tribunal's expertise and professionalism. I believe that the concern for the United States and its statehood and the effect to itself as a state should be equally applied to the Hawaiian Kingdom. 1893 and 1898, which are really the main points at which we are looking, we are not really looking at today. I think today is more of a consequence of the past. We are really looking at ramifications. But during that time in 1893 and 1898 it was clear that Hawai'i was a state as defined by the Montevideo Convention. Yes, it did have a government; yes, it did have a fixed territory. As we stated in our memorials, we actually went into the square mileage, the latitude and longitudes, and not basically seeing it as an expression of Hawaiian sovereignty, but actually referring to declarations made before certain resident ministers citing what were these Islands, the three-mile limit that extended around each of the Islands and also the four additional Islands that were acquired through the doctrine of discovery during the era of the Hawaiian Kingdom as an independent state. It was clear that in 1893 and 1898 the Hawaiian Kingdom was not a vessel state of any other state, it was not a dependent state of any other independent state and I believe most of all the Hawaiian Kingdom was not a non-self-governing territory, which would fall under the category that we call today self-determination, which is synonymous with decolonisation.
THE PRESIDENT: I am sorry, Mr Sai, just as a point of historical interest, you mentioned four islands discovered during that period. I take it they were discovered by people from the Hawaiian Kingdom and the Hawaiian Kingdom took advantage of the doctrine of discovery to acquire additional Islands. That is interesting. I did not know that.
MR SAI: It is actually fully stated in the memorials. It goes to the exercise of Hawaiian sovereignty, the doctrine of discovery. In a sense, you might say that the Hawaiian Kingdom actually began the colonisation process in these Islands while they were uninhabited., But, again, they still were acquired. I am sure that these Islands were considered terra nullius, which allowed the Hawaiian Kingdom to acquire by discovery as they had no other claim from any other independent state.
MR GRIFFITH: Mr Sai, did you say that you are not a lawyer?
MR SAI: I was a former military officer and I never move on speculation, I need intelligence reports before we seize an objective. I need concrete facts. I do have common sense, though, and I hope that helps me.
THE PRESIDENT: Let us hope that you do lose it in your acquisition of further legal skills!
MR SAI: The issue of the Hawaiian Kingdom as an independent state was not dependent upon any other state to be independent, but rather was dependent upon the Hawaiian Kingdom itself. That is what brought forth the 1843 Anglo-Franco proclamation. That was not brought about by the United States assisting the Hawaiian Kingdom to have some type of legal relationship or political confederation, yet, indeed, the Hawaiian Kingdom did possess an independent personality from not just the United States but rather all other independent states. That was distinguishable by its distinct population, by its Government, which at this time was constitutional in form, by a fixed territory and also the ability to enter into international relations, as I tried to show in the Powerpoint presentation on Friday. These all go to the exercise of basically Hawaiian sovereignty as an independent state. The question of occupation really is an aftermath in regard to statehood. Only by using statehood as a backdrop can really occupation become understandable. And not necessarily occupation will determine if you have statehood, but rather, if you are an established state, the presumption is that you are still a state during occupation. Whether that occupation is legal or illegal - and I submit legal in the sense of according to the Hague Conventions - we would not be here if the United States administered Hawaiian Kingdom law. Mr Lance Larsen would not be arrested for driving his vehicle according to Hawaiian Kingdom law if the United States was adhering to the Hague Convention and the laws of occupation. Rather what we find is that the United States has never expressed itself as an occupier. Who would? That is an admitted. You would never get it. For us to try to look into areas of contemporary judicial documents or statements or joint resolutions, it will not be self-incriminating for an occupier. Therefore, I have to assume that they will never admit to occupation. Yet to admit to occupation is in a sense to admit to the continued existence of the Hawaiian Kingdom as an independent state, which is really the crux of the matter, which is actually what is holding up, you might say, this issue to be resolved between a national and his government. The underlying question would be does the Hawaiian Kingdom continue to exist as an independent state, thus the legal order, thus the re-establishment of the Government, thus the relationship between its nationals.
THE PRESIDENT: To be slightly unkind but thus the issue in rem, the point is that, if the Hawaiian Kingdom continues to exist, its existence is in rem. It is not in personam. The Hawaiian Kingdom does not exist solely in the opinion of Mr Larsen. It exists. That is the problem.
MR SAI: Correct. But that existence should not be dependent upon an occupier, because you basically put the occupier on an equal footing with the Hawaiian Kingdom in its own territory. Really what needs to be addressed is what came before the occupation, whether the statehood or whether the legality or illegality of the Hawaiian Kingdom, not the illegality or legality of the United States as an occupier, but rather the Hawaiian Kingdom, has it met those particulars of international law that would warrant its continued existence, irrespective of any action taken by a third party upon that sovereignty. I believe that the principle of international law is really the equality of states and that, as the equality of states comes into being, I believe that the United States cannot be construed to have an equal right within another state's territory, but rather they are equal within their own territorial jurisdictions which affords the international relations that come either through trade agreements or actually war - but at least the war is somehow regulated. I am anticipating, Mr Griffith, that you have a question.
MR GRIFFITH: No. I am just listening with interest as you seem to read without notes.
MR SAI: Should the Tribunal find that it has jurisdiction, we are prepared to submit an offer of proof as to the merits of this case to show the web of international treaties, declarations, agreements, reliances, admissions and apologies. I have to stress that, in order to determine Hawaiian statehood, it actually should be determined by the Hawaiian Kingdom's actions and not by anyone else. If those actions met within the confines of international law, then I believe that the presumption of that continuity of statehood could withstand any type of occupation, whether belligerent, non-belligerent or prolonged occupation as we have today. In that regard we come from the presumption that the Hawaiian Kingdom continues to exist but yet in the face of the world everybody assumes or the presumption is that the United States exists in our country. Yet nobody has ever taken it previous to the occupation. It was always assumed post-occupation. We cannot stop what an occupier can do. That is not really in our best interests and our people did find that out when they began to occupy us after the Spanish-American War. You had the most heinous criminal in the Hawaiian Kingdom made its governor. That governor now wielded life and death and executive authority. What our people are actually coming out of is a mode of survival and, as we come out of survival, we are now realising the legal responsibilities that apply to a nation state and not to what we have been taught or told that we are a non-self-governing territory seeking self-determination and, thus, you have the creation of the state of Hawai'i. Now they are trying to reinvent the wheel of self-determination by now trying to convince the native Hawaiians that it is an indigenous matter that falls under the self-determination process of the UN decolonisation, which we find does not apply, but it is all from one side. You do not hear this ever coming from the Hawaiian Kingdom. If you do hear it coming from certain individuals who may refer to themselves as Hawaiian, they are not referring to themselves as Hawaiian nationals, but rather they think they are indigenous people seeking the rights of self-determination within Article 73 of the United Nations Charter. We felt that this Tribunal would offer some clarity so that for the first time we have a third party to which to present these types of merits, that can be scrutinised by international law rather than taking it before a United States tribunal which could not rule on it to the detriment of itself. You do not walk into the court of a criminal and declare that person a criminal. In that sense there is really no other way to address this issue and the opportunity did arise, because it was Mr Larsen who was adhering to Hawaiian Kingdom law and, if the United States was adhering to occupation, not whether they are illegal or legal, but, if they were adhering to the laws of occupation, we would not be here right now. We would probably have addressed the issue of ending the occupation through diplomatic process, but we do not find ourselves in that situation. If the Tribunal feels - and I strongly submit - that they can address the issue of Hawaiian statehood without the United States, because you are looking at Hawaiian statehood before the occupation, whether the occupation was legal or illegal, and whether international law safeguards the continuity of a state during occupation ... If I may, I will take a statement from Professor Merrick. There is not too much literature on states that have been extinguished, but there is a lot of literature on states that have been created. The creation of a state in the 20th Century was quite different from how it was in the 19th Century. I believe in the 19th Century it relied more on recognition and basically sponsorship into the family of nations, whereas the 20th or 21st Century relies more on not just recognition but actually acceptance, exercise and those kind of things. May I ask a question that I think might need some clarity. Is Professor Merrick a woman or a man - Christina Merrick?
THE PRESIDENT: She was a woman. She is now dead.
MR GRIFFITH: Mr Sai, if you are a lawyer you can only quote someone as an authority if they are dead.
THE PRESIDENT: That used to be the case, it is not any more.
MR SAI: She explains that where a law breaking attitude of the occupying power makes it possible for the legal order of the occupied state to retain a certain amount of effectiveness in the occupied territory, or, as in our case, whether in disregard of the Hague Conventions the occupant eliminates even the last traces of that effectiveness, the continuity of the occupied state is safeguarded, not by an act of will by the occupying power but by a clear objective rule of international law. That is what we are basing our existence on. Not the will of the occupier through its apology resolutions, through its amicus curiae with Rice -v- Cayetano; what we are relying on is international law, safeguarding our continuity as it was Her Majesty Queen Lili'uokalani and our former countrymen who were also relying on that higher order to protect them against the attacks made by the United States. Granted the United States did not invade Hawai'i, it was not like the Dutch and the invasion by the Nazis; rather we were basically muscled as a neutral state to fight another belligerent in Guam in the Philippines. That could have been a lawful occupation, but lawful does not mean that it is permanent. It is supposed to be provisional, they were supposed to have administered the laws when they occupied Hawai'i. They did not; instead they created puppet governments and puppet states which were unilaterally done by the United States legal order, but has no connection to the legal order of the Hawaiian Kingdom under its existence as a state. One last point that I wished to make is also a quote from Professor Merrick. Since the law relating to the continuity of the occupied state is clear and unequivocal acts of the occupying power which are not in accordance therewith are clear violations of international law. We are not taking the whole of that quote but rather the first part. We are not here to address the actions taken by the occupying power, I believe both parties are bringing those points out as far as clarifying what is the real issue. But rather it is the continuity of the occupied state which had to have existed before the occupation occurred. That is the area that we would like to present as far as an evidentiary hearing to substantiate that continued existence. We have prepared witnesses. We have custodians of records who will authenticate the treaties and declarations made by the Hawaiian Kingdom. We have experts ready on Hawaiian history, on Hawaiian demographics and the breakdown of the population. We have experts on US municipal laws who will testify on the legality of the United States. We also have experts on estoppel and the legal effect of agreements between heads of states as we presented on Friday that agreement between Lili'uokalani and President Cleveland. And finally we also have experts on trust and contract law as it relates to the restoration of the Hawaiian government by and through a Hawaiian Kingdom trust company, a general partnership. Very extraordinary means because we are in a very extraordinary circumstance.
MR GRIFFITH: May I ask you about that, Mr Sai; perhaps it is not appropriate to ask you if you disclaim being a lawyer, but if there was continuity why was there a necessity to reconstitute yourself as a trust company?
MR SAI: I am glad you have brought that up, sir. We did not intend to reestablish the Hawaiian government. What we did intend, and it is reflective in the memorials, was to follow Hawaiian Kingdom law much in the same way as Mr Larsen. In that respect we wanted to establish a general partnership to do title research called Perfect Title Company. Now Perfect Title Company was established in accordance with the laws which met the criteria of filing in the bureau conveyances which would meet that requirement. According to the statute that we fell under it was an Act of 1880 that required all general partnerships to register within, to generalise, the executive branch of government. Once we had registered it was pretty much a unilateral act. We had to make it a bilateral act to consummate our adherence to the law of registering partnerships. There was no one there accepting our registration. It was basically a statement that was following the law.
MR GRIFFITH: You just said under the pre-existing Hawaiian Government Act.
MR SAI: Yes, under the Act of 1880. Since that time there was no Hawaiian legislature to reconvene to amend or repeal that Act.
MR GRIFFITH: And was there any continuing registry or anything?
MR SAI: What is very ironic is what we have in Hawai'i. The United States did not create a legal order, what they basically did was just capitalise on what was there, so the bureau of conveyances that exist today was established by statute in 1845. That same physical body is still there today with land records that go back to 1845. So we were basically following our laws, but you might say there was a different gatekeeper at the gate. We were not in a position to argue with the gatekeeper, given the situation, so we basically were adhering to the laws not because of the gatekeeper but rather because of our obligation to follow the law in accordance with our civil code. As a result that provided a necessity to create a proxy of the Hawaiian Kingdom government by its executive branch through what was called the Hawaiian Kingdom Trust Company, to merely serve as a vehicle to assume the role or chain of command within the executive branch. Now for this part I fall to my background as a military officer. In the military we know that a private can be a general in extraordinary circumstance, but that private is not a general, he is an acting general until relieved by a properly commissioned officer. It does not take away the responsibility and duties of that private but he now has to act like a general. In a sense we followed that logic to assume the chain of command in the absence of all other qualified privates. Now if there were other privates who were adhering to the law on record then we would be looking at time and grade, who had the time and grade to assume the chain of command. I am a former captain, I was in the field artillery. We did a lot of training in Korea and Japan. Those situations always arose, and sergeants did find themselves in captains positions; they were not prepared but the first thing they always did was "Where are the standard operating procedures?" Basically in our case it was the laws. Those were our standard operating procedures. It is a very interesting way of how this process of reestablishing the government occurred, but again it goes to the survivability of nationals within prolonged occupation. You do not necessarily have the luxury of actually saying you are a Hawaiian subject, and I am sure you will notice in the memorials we were attacked and we were actually prosecuted criminally. So those points are real in Hawai'i. But what we bring here is not that. What we bring here is more clarity to the issues, specifically the continuity of statehood, in that it would help you get over that hurdle of jurisdiction to look at the merits. So again I submit that we would like to submit for an evidentiary hearing to address those issues, more particularly the questions posed in my colleague's 1 through 4. We feel it is imperative that we need to get 1 through 4 before truly addressing the fifth issue, because it really goes to the standing of the parties. But the United States should not and cannot be affected by this type of determination as far as the merits are concerned. We do not want to introduce any unilateral act done by the United States, we want to rely on the acts done by the Hawaiian Kingdom, past, present and to this point. Are there any more questions?
THE PRESIDENT: Thank you, Mr Sai; No. I have some questions for both parties but thank you for your submissions. In a moment the Tribunal will adjourn just to enable the parties to consider their responses. We really have one very simple question, which is simply to confirm that there is no issue as to the costs of the arbitration so far, including the costs of the parties, by reason of Article 5 of the original agreement. I understand that to be the case so there is no question of our making any order for costs whatever. The second question is in two parts. First of all I would like confirmation from both parties that they feel that they have had a sufficient opportunity to address the issues which were raised in our procedural orders 3 and 4, bearing in mind of course that there are certain questions which are reserved to the eventual merits of the case if we arrive at the merits, in particular the question of the continued existence of the Hawaiian Kingdom and the entitlement of the respondent to represent the Hawaiian Kingdom. That is an issue reserved to the merits, or possibly to an intermediate phase at which the potential alternative application of the optional rules was to be considered. So question 1; do you feel you have had a sufficient opportunity to address the issues raised in procedural orders 3 and 4? Question No. 2 which would arise especially if the answer was No, but might arise in any event; do the parties feel that it would be helpful to be given a further opportunity to express in writing their views on those questions within a short timeframe - we would envisage something of the order of three weeks. Of course you may feel that the issues have been sufficiently ventilated and we can simply go away and produce an award on these questions, but given that there has been discussion and further consideration obviously issues have been developing and Ms Parks has learnt more about international law I infer and Mr Sai has become more of a lawyer than he was before! The question is whether it would be useful to have another opportunity to have a post hearing brief. This is not something to be encouraged, though they are certainly proliferating, but if the parties feel it would be helpful then of course that allowance can be made. We will adjourn for about five minutes to enable you to consider separately or collectively your answers to those questions, and then we will come back and wind up.
THE PRESIDENT: First of all I take it that there is no question that we need to decide on any issue of costs?
MS PARKS: No, there is no question on that.
THE PRESIDENT: Turning to the other procedural question I raised first of all could the parties confirm or deny as the case may be that they feel that they have had every opportunity to present oral argument on the issues identified in procedural orders 3 and 4?
MS PARKS: Yes, the claimant has had every opportunity to present arguments on issues raised by the Judges in procedural orders Nos. 3 and 4, we submit.
MR SAI: Yes, we have addressed the issues on the UNCITRAL rules and the jurisdictional issues. We would like to submit that we are not particularly concerned on the necessary applicability of the optional rules, but we are perfectly comfortable under the UNCITRAL rules.
THE PRESIDENT: Thank you very much. Everything we can do to make you comfortable consistent with our discipline we will do, Mr Sai. Do the parties feel the need for post hearing written briefs?
MS PARKS: No, the claimant does not.
MR SAI: We feel we have submitted the best we could and will rest on what we have presented.
THE PRESIDENT: In that case there is no order for post hearing briefs. The Tribunal will consider the making of an award on the issues identified in procedural orders 3 and 4 and will do so within 90 days of today's date. That order will be communicated to you by the Registry. Can I thank the parties for their clear, often entertaining, and always candid arguments presented with considerable ability. These are difficult questions. One of the reasons they are difficult is that we are just coming to a period in the development of international arbitration where the classical structure of state to state arbitration is being tested by mixed procedures which are not purely contractual, and there are therefore quite difficult questions about the application of classical rules of admissibility to mixed proceedings. This is not just a figment of this particular case, it is a general problem. So I think the issues have been difficult and the parties capacity to grapple with them is one which the Tribunal acknowledges with thanks. Is there anything else that either party wishes to say?
MS PARKS: "Mahalo" - thank you very much.
MR SAI: On behalf of the Hawaiian Kingdom, "Mahalo".
MR GRIFFITH: Can I just add that in the context that civil lawyers usually plead with the Tribunal not responding I appreciate it very much that the parties seemed to have participated in the exchange of questions and answers, sometimes each way with members of the Tribunal. For myself I have found that a very useful part of the argument, and I appreciate that each party has acted as common law counsel, as it were, and without at all indicating our views on the matters where we have exchanged information for myself the questioning process was very useful in this arbitration.
THE PRESIDENT: Thank you very much. The proceeding is adjourned and I hope that people travel well and safely and get admitted back to their respective destination.
DAY ONE DAY TWO DAY THREE
Home Synopsis "Lance Paul Larsen vs. the Hawaiian Kingdom"
Permanent Court of Arbitration, The Hague
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