Hawaiian Kingdom Legal Team Complete

Dr. Keanu Sai recently returned from London after meeting with the Matrix Chambers who has joined his legal team in the international commission of inquiry proceedings stemming from the Larsen v. Hawaiian Kingdom (1999-2001) case held under the auspices of the Permanent Court of Arbitration. Matrix Chambers is one of the leading law firms in the United Kingdom and has represented countries before international courts and tribunals.

These proceedings were initiated on January 19, 2017 by Special Agreement between the Provisional Government of the Hawaiian Kingdom and Lance Paul Larsen. Both Parties agreed to the rules provided under Part III—International Commissions of Inquiry (Articles 9-36) of the 1907 Hague Convention for the Pacific Settlement of International Disputes. Once the Commission of Inquiry has been formed they will hold their hearings in the Hawaiian Kingdom. The formation of the Commission is moving forward. According to the Special Agreement,

“The Commission is requested to determine: First, what is the function and role of the Government of the Hawaiian Kingdom in accordance with the basic norm and framework of international humanitarian law; and, Second, what are the duties and obligations of the Government of the Hawaiian Kingdom toward Lance Paul Larsen, and, by extension, toward all Hawaiian subjects domiciled in Hawaiian territory and abroad in accordance with the basic norm and framework of international humanitarian law.”

Dr. Sai heads the Hawaiian Kingdom legal team as Agent, Professor Federico Lenzerini from the University of Siena Law School in Italy is the Deputy-Agent, and Ben Emmerson, QC, from the Matrix Chambers is Counsel. Mr. Emmerson is the former United Nations Special Rapporteur on Counter Terrorism and Human Rights. He was also elected by the United Nations General Assembly as one of the Judges for the International Criminal Court for Rwanda and the International Criminal Court for the former Yugoslavia. His expertise is in international criminal law and served as Special Advisor to the Prosecutor of the International Criminal Court.

The first allegations of war crimes committed in Hawai‘i, being unfair trial, unlawful confinement and pillaging, were made the subject of an arbitral dispute in Lance Larsen vs. Hawaiian Kingdom at the Permanent Court of Arbitration (PCA). Oral hearings were held at the PCA on December 7, 8, and 11, 2000. As an intergovernmental organization, the PCA must possess institutional jurisdiction before it can form ad hoc tribunals. The jurisdiction of the PCA is distinguished from the subject-matter jurisdiction of the ad hoc tribunal over the dispute between the parties.

Disputes capable of being accepted under the PCA’s institutional jurisdiction include disputes between: any two or more states; a state and an international organization, such as an agency of the United Nations; two or more international organizations; a state and a private party; and an international organization and a private entity. The PCA accepted the case as a dispute between a state and a private party, and acknowledged the Hawaiian Kingdom as a non-Contracting Power under Article 47 of the 1907 Hague Convention for the Pacific Settlement of International Disputes. As stated on the PCA’s website:

“Lance Paul Larsen, a resident of Hawaii, brought a claim against the Hawaiian Kingdom by its Council of Regency (“Hawaiian Kingdom”) on the grounds that the Government of the Hawaiian Kingdom is in continual violation of: (a) its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America, as well as the principles of international law laid down in the Vienna Convention on the Law of Treaties, 1969 and (b) the principles of international comity, for allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.”

The Government of the Hawaiian Kingdom, as it stood on January 17 1893, was restored in 1995, in situ and not in exile. An acting Council of Regency comprised of four Ministers—Interior, Foreign Affairs, Finance and the Attorney General—was established in accordance with the Hawaiian constitution and the doctrine of necessity to serve in the absence of the executive monarch. By virtue of this process a Provisional Government, comprised of officers de facto, was established. According to U.S. constitutional scholar Thomas Cooley,

“A provisional government is supposed to be a government de facto for the time being; a government that in some emergency is set up to preserve order; to continue the relations of the people it acts for with foreign nations until there shall be time and opportunity for the creation of a permanent government. It is not in general supposed to have authority beyond that of a mere temporary nature resulting from some great necessity, and its authority is limited to the necessity.”

Like other governments formed in exile during foreign occupations, the Hawaiian government did not receive its mandate from the Hawaiian citizenry, but rather by virtue of Hawaiian constitutional law, and therefore represents the Hawaiian state. The Provisional Government is not a new government, but rather a restoration of the Hawaiian Government that existed on January 17, 1893, before it was illegally seized and transformed into an insurgency by the United States. In 2001, Bederman and Hilbert reported in the American Journal of International Law,

“At the center of the PCA proceedings was … that the Hawaiian Kingdom continues to exist and that the Hawaiian Council of Regency (representing the Hawaiian Kingdom) is legally responsible under international law for the protection of Hawaiian subjects, including the claimant. In other words, the Hawaiian Kingdom was legally obligated to protect Larsen from the United States’ ‘unlawful imposition [over him] of [its] municipal laws’ through its political subdivision, the State of Hawaii. As a result of this responsibility, Larsen submitted, the Hawaiian Council of Regency should be liable for any international law violations that the United States had committed against him.”

The Tribunal concluded that it did not possess subject matter jurisdiction in the case because of the indispensible third party rule. The Tribunal explained:

“It follows that the Tribunal cannot determine whether the respondent [the Hawaiian Kingdom] has failed to discharge its obligations towards the claimant [Larsen] without ruling on the legality of the acts of the United States of America. Yet that is precisely what the Monetary Gold principle precludes the Tribunal from doing. As the International Court of Justice explained in the East Timor case, ‘the Court could not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the lawfulness of the conduct of another State which is not a party to the case.’”

The Tribunal, however, acknowledged that the parties to the arbitration could pursue fact-finding. The Tribunal stated, “At one stage of the proceedings the question was raised whether some of the issues which the parties wished to present might not be dealt with by way of a fact-finding process. In addition to its role as a facilitator of international arbitration and conciliation, the Permanent Court of Arbitration has various procedures for fact-finding, both as between States and otherwise.”

The Tribunal noted “that the interstate fact-finding commissions so far held under the auspices of the Permanent Court of Arbitration have not confined themselves to pure questions of fact but have gone on, expressly or by clear implication, to deal with issues of responsibility for those facts.” The Tribunal pointed out that “Part III of each of the Hague Conventions of 1899 and 1907 provide for International Commissions of Inquiry.”

To date, there have only been five international commissions of inquiry held under the auspices of the PCA—the first in 1905, The Dogger Bank Case (Great Britain – Russia), and the last in 1962, Red Crusader’ Incident (Great Britain – Denmark). These commissions of inquiry formed under the 1907 Hague Convention for the Pacific Settlement of International Disputes serve in similar fashion to grand juries where they not only inquire into the facts of the case but also assign criminal or civil liability for another court or tribunal to prosecute.

Big Island Video News (BIVN): Teacher’s Union to Document Illegal Occupation

HILO, Hawaii – The political scientist, acting as an agent for the government of the Hawaiian Kingdom in international proceedings, believes the time is right to go forward with an International Commission of Inquiry at the Hague.

(BIVN) – “This is big,” announced Dr. Keanu Sai in the gymnasium of the Boys & Girls Club in Hilo on Saturday.

Sai, one of several featured speakers in a two day educational seminar organized in celebration of the Hawaiian holiday of La Ho‘iho‘i ‘Ea, was talking about the news that came from the National Education Association’s Annual Meeting and Representative Assembly in Boston, Massachusetts on July 4th.

A group with the Hawai‘i State Teachers Association – the NEA affiliate union representing the public school teachers of Hawaii – successfully convinced the teachers of America to approve New Business Item 37, which stated:

“The NEA will publish an article that documents the illegal overthrow of the Hawaiian Monarchy in 1893, the prolonged illegal occupation of the United States in the Hawaiian Kingdom and the harmful effects that this occupation has had on the Hawaiian people and resources of the land.”

HSTA credited Chris Santomauro, a teacher at Kaneohe Elementary, with introducing the proposal and Uluhani Waialeale, a teacher at Kualapuu charter school on Moloka’i, for presenting an “impassioned and articulate argument in favor of the Hawaiian overthrow measure” which “swayed a majority of teachers from across the country to support it.”

“That’s big. This is not political, this is education,” Sai said as he explained the HSTA proposal to those gathered for his talk in Hilo.

According to Sai, the HSTA Secretary/Treasurer is Amy Perruso, a teacher from Mililani High School. She was one of the first teachers to begin teaching about the illegal overthrow of the government of the Hawaiian Kingdom and the illegal American occupation that followed. Perruso even teaches from Sai’s textbook, Ua Mau Ke Ea—Sovereignty Endures: An Overview of the Political and Legal History of the Hawaiian Islands.

“I pretty much can guarantee you that the teachers that are teaching about Hawaii’s occupation probably came through one of our classes at the University of Hawaii,” Sai said, claiming he had nothing to do with the HSTA’s plan to draw up the agenda item. “That’s the impact right there,” Sai said, “where they are taking their kuleana and maximizing it.”

Ever since Sai’s first trip to the Permanent Court of Arbitration in 2001, where he represented the Hawaiian Kingdom government in the Larsen v the Hawaiian Kingdom case, Sai has made the education of Hawaii’s people his top priority.

Now, inspired by stories like the one of the HSTA in Boston, Sai feels affirmed that “it’s time to go fact-finding.”

“I think the time is right. Let’s enter into an agreement with Lance Larsen, go fact-finding,” Sai said, adding that during the 2001 proceedings before the the Permanent Court of Arbitration, the tribunal “didn’t say you can create the fact-finding within 20 years. It said all it needs is an agreement.”

Sai said two of the arbitrators are now sitting judges on the International Court of Justice.

“So, what we’re going to do is convene the original arbitrators who made the statement to be that Commission of Inquiry,” Sai said. “Because I found out that sitting judges on the International Court of Justice can also serve as arbitrators and commissioners at the permanent Court of Arbitration.”

Commissions of inquiry under the auspices of the Permanent Court serve in a similar capacity as grand juries, Sai told the audience. Commissions of Inquiry not only review sets of facts, but also assign responsibilities regarding these facts. That could be civil liability or criminal liability in international law, Sai said.

To date there have only been five International Commission’s of Inquiry, Sai said. The first was Great Britain and Russia in 1905. The most recent was Great Britain and Denmark in 1962.

“This is not… a happy time, but this is a serious time,” Sai said. “Now, what’s important here is, this agreement which will form three commissioners under the Hague Convention… they will answer the first question. First, what is the function and role of the government of the Hawaiian Kingdom in accordance with the basic norm and framework of international humanitarian law?”

Humanitarian law is the law of occupation and laws of war, Sai said. “Before you can address what is the role of the Hawaiian government during occupation, you have to do that in the light of what happened since 1893. You have to address what the United States did or didn’t do that got us into this situation of possible culpability of the Hawaiian government toward one of its Nationals. Is it our fault that everybody’s brainwashed?

Who’s responsible for that?”

Before the commission can answer that question, they have to “address over a hundred years of non-compliance to humanitarian law,” Sai said. “That’s how it works. Then, in light of all this… what do we do? Are we liable?”

Sai says the commission will also ask, “what are the duties and obligations of the government of the Hawaiian Kingdom toward Lance Larson and – by extension – toward all Hawaiian subjects residing in Hawaii, and abroad?”

“What do we do about Lance Larson? Do we sign a reparation where we now have to pay him?” Sai asked. “Do we report the crimes to the International Criminal Court for prosecution? Where do we go?”

“Let them tell us,” Sai said. “They have the authority. We’re in the procedures. So, I don’t know what they’re going to say. I don’t. Just as I didn’t know what they would say during the proceedings of arbitration. I just know I have to take every step to protect the Hawaiian government. Because we’re in it. We’re now being put to that test.”

Sai added that once the Commission has been convened, they are going to make an important recommendation. “We’re gonna have the hearings in Hawaii,” Sai said, to a round of applause.

“I mean, this is not a political stunt. This is procedural,” Sai said. “Because… back in the year 2000, we entertained whether or not the tribunal could have their hearings in Hawaii. That was under consideration. And, after complete review, we said ‘no, there is confusion at home’. Now, I think our people are ready. They have the knowledge, they have the understanding.”

Sai again pointed to the recent HSTA victory in getting their “illegal occupation” proposal passed at the NEA meeting in Boston.

“Can you now understand,” Sai asked the crowd, “the Commission of Inquiry will probably be looking into these very issues.”

Big Island Video News (BIVN): Denationalization in the Hawaiian Kingdom

HILO, Hawaii – Kauai’s talk was entitled “Understanding the impact of denationalization in the Hawaiian Kingdom”.

(BIVN) – As a part of the two day La Hoʻihoʻi ʻEa educational seminar held at the Boys & Girls Club in Hilo, Dr. Wille Kauai gives a talk, Understanding the impact of denationalization in the Hawaiian Kingdom.

The presenter delved into the history and issues surrounding nationality, race, and citizenship in the context of the prolonged occupation of Hawaii by the Untied States.

Big Island Video News (BIVN): Provisional Government of the Hawaiian Kingdom

HILO, Hawaii – Sai’s talk was entitled “The current role of the Acting Hawaiian Kingdom government in the prolonged occupation”. 

(BIVN) – As a part of the two day La Hoʻihoʻi ʻEa educational seminar held at the Boys & Girls Club in Hilo, Dr. Keanu Sai gives a presentation, The current role of the Acting Hawaiian Kingdom government in the prolonged occupation.

Sai talks about how there is a state of war between the United States and the Hawaiian Kingdom, his efforts as lead agent for the Kingdom at the Permanent Court of Arbitration, and the ongoing education of Lāhui.