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After reviewing the Hawaiian Kingdom’s Request for Judicial Notice regarding Civil Law on the “Juridical Fact” of the Hawaiian State and the Consequential “Juridical Act” by the Permanent Court of Arbitration, District Court Judge Leslie Kobayashi issued a Minute Order today setting dates for additional filings. Judge Kobayashi will be considering the Request for Judicial Notice as a Non Hearing Motion.
The Order stated that Defendants have until December 21, 2021 to file a Response Memorandum to the Hawaiian Kingdom’s Request for Judicial Notice of Civil Law. The Plaintiff, if it chooses, will need to file a Reply Memorandum by January 4, 2022. After the parties file their submissions, the “Court to issue Order.”
At the center of the federal lawsuit is the court’s jurisdiction, which is its authority to preside over the case. Without proper jurisdiction or authority, the Court cannot make any decision regarding the Hawaiian Kingdom’s allegations in its Amended Complaint, or even any substantive issues raised by the defendants through motions or statements of interest. In its Amended Complaint, the Hawaiian Kingdom explained:
3. While this court is operating within the territory of the HAWAIIAN KINGDOM and not within the territory of Defendant UNITED STATES OF AMERICA, its jurisdiction is found as a de facto Article II Court. According to Professor Bederman:
What, then, is distinctive about a court established under Article II of the Constitution? First, executive tribunals are established without an act of Congress or any other form of legislative concurrence. Congressional intent concerning the status of a presidential court is irrelevant because no congressional approval is needed. The fact that the President alone can create an executive court places it outside the scope of Article III of the Constitution, which demands that Congress shall establish courts inferior to the Supreme Court. Second, the executive courts are created pursuant only to the power and authority granted to the President in Article II of the Constitution. In practice, the only presidential power that would call for the creation of a court is that arising from his responsibility as Commander in Chief of the armed services and his subsequent war-making authority.
4. The authority for this Court to assume jurisdiction as a de facto Article II Court is fully elucidated in the Amicus Curiae brief previously lodged in these proceedings by virtue of the Motion for Leave to File Amicus Curiae Brief on July 30, 2021 [ECF 45] by the International Association of Democratic Lawyers (IADL), the National Lawyers Guild (NLG), and the Water Protector Legal Collective (WPLC). The Amicus brief is instructional for the Court to transition to a de facto Article II Court.
5. An Article II Court was established in Germany after hostilities ceased in 1945 during the Second World War. After the surrender, western Germany came under belligerent occupation by the United States, France and Great Britain. The military occupation officially came to an end on May 5, 1955, with the entry into force of peace treaties called the Bonn Conventions between the Federal Republic of Germany and the three Occupying States. During the occupation, these Article II Courts had jurisdiction “over all persons in the occupied territory,” except for Allied armed forces, their dependents, and civilian officials, for “[a]ll offenses against the laws and usages of war[,] […] [a]ll offenses under any proclamation, law, ordinance, notice or order issued by or under the authority of the Military Government or of the Allied Forces, [and] [a]ll offenses under the laws of the occupied territory or any part thereof.”
6. Like the Article II Court in Germany, this Court has Jurisdiction as a de facto Article II Court because this action arises under international humanitarian law—law of armed conflict, which include the 1907 Hague Convention, IV (1907 Hague Regulations), the 1907 Hague Convention, V, the 1949 Geneva Convention, IV (1949 Fourth Geneva Convention), and Hawaiian Kingdom law. Article 43 of the 1907 Hague Regulations states:
The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
7. The Court is authorized to award the requested declaratory and injunctive relief as a de facto Article II Court because it is situated within the territory of the HAWAIIAN KINGDOM that has been under a prolonged belligerent occupation by the United States of America since January 17, 1893.
On August 17, 2021, the International Association of Democratic Lawyers (IADL), the National Lawyers Guild (NLG) and the Water Protector Legal Collective (WPLC) filed a motion for permission to file an amicus curiae brief with the U.S. District Court for the District of Hawai‘i in support of the Hawaiian Kingdom’s complaint against U.S. President Biden and others for violations of international law, the commission of war crimes, and human rights violations in its prolonged occupation of the Hawaiian Kingdom. The motion was filed after the Hawaiian Kingdom filed its Amended Complaint on August 11, 2021.
An amicus curiae is “one (such as a professional person or organization) that is not a party to a particular litigation but that is permitted by the court to advise it in respect to some matter of law that directly affects the case in question.” The amicus brief was attached to the motion for the court to consider. In its request for permission, the IADL-NLG-WPLC stated:
1. The nongovernmental organizations whose views are represented in this brief have expertise in public international law, international human rights, humanitarian law, and norms regarding statehood, sovereignty, and self-determination.
2. Movants submit this brief to ensure a proper understanding and application of the international law and historical precedent relevant to this case regarding Article II occupation courts. The amici are additionally human rights organizations that have an interest in ensuring an informed interpretation of international human rights law in domestic jurisprudence.
On September 30, 2021, Federal Magistrate Rom Trader issued an Order granting permission for the IADL-NLG-WPLC to file their amicus brief that supports the Hawaiian Kingdom’s claim that the Court must transform itself into an Article II Court. By granting permission, the Court will not only utilize the amicus brief to assist in its decision regarding its transformation into an Article II Court, but it also acknowledges the merit of the IADL-NLG-WPLC’s argument. If it were a frivolous argument, the Court would not have granted permission to file the brief because granting permission is at the discretion of the Court. The Court was able to issue this Order without having resolved its jurisdiction, because the brief addresses jurisdiction for the Court to consider when it transforms itself into an Article II Occupation Court.
The IADL-NLG-WPLC filed their amicus brief on October 6, 2021 and opened with:
The purpose of this brief is to bring to the Court’s attention customary international law norms and judicial precedent regarding Article II occupation courts that bear on the long-standing belligerent occupation of the Hawaiian Kingdom by the United States at issue in this case.
In assessing the legality of the US occupation of Hawai‘i, the Court should be cognizant of customary international law and international human rights treaties that are incorporated into domestic law by virtue of Article VI, section 2 of the Constitution (the “Supremacy Clause”). International law, which includes treaties ratified by the United States as well as customary international law, is part of U.S. law and must be faithfully executed by the President and enforced by U.S. courts except when clearly inconsistent with the U.S. Constitution or subsequent acts of Congress.
The question here is not whether the Hawaiian Kingdom has standing in an Article III court. The question is whether this court can sit as an Article II occupation court and whether the claims of the Hawaiian Kingdom can be redressed. The answer to both questions is yes.
It is evident that the Court has accepted the arguments that it is not properly constituted because it is located in the territory of the Hawaiian Kingdom and not within the territory of the United States. Adding to the serious consequences of this case was the closure of three consulates of the Czech Republic, Finland, and India. This prompted the United States Department of Justice to file a Statement of Interest on November 5, 2021, that was asking the Court to dismiss the thirty consulates from the lawsuit because the United States claimed they had immunity.
Of the summons that were served, 12 foreign consulates failed to respond within 21 days and entries of default were entered by the Clerk of the Court. These foreign consulates include Austria, Belgium, Chile, Germany, Japan, Luxembourg, Netherlands, Norway, Philippines, South Korea, Spain, and Thailand. Default is where a defendant has failed to defend against a claim that has been brought by the filing of a complaint. By default, these foreign consulates accept the allegation of the Hawaiian Kingdom that it is true they are unlawful. The next stage is to get a judgment of default by the judge so that they can be ordered to close. The Hawaiian Kingdom, however, is prevented from filing a motion for judgment of default because the Court is not an Article II Court that operates in territory belligerently occupied by the United States.
The Hawaiian Kingdom filed a Response to the United States Statement of Interest on November 7, 2021, stating the consulates cannot claim to be immune from the lawsuit because they were never lawful under international law to begin with because the Hawaiian Kingdom did not give its permission to have the consulates established within its territory. Rather, these consulates, as stated by the United States in its Statement of Interest, were established by the United States Department of State. In its Response, the Hawaiian Kingdom also maintained that the “Court is compelled by international and U.S. constitutional law to first transform itself from an Article III Court to a de facto Article II Court before it may lawfully assert subject-matter and personal jurisdiction to address any of the issues raised.”
On November 29, 2021, the Hawaiian Kingdom filed a Supplemental Response to the United States’ Statement of Interest that explained the significance of the action taken by the Permanent Court of Arbitration (PCA) through the civil law tradition of understanding of the “juridical fact” of the Hawaiian Kingdom’s continued existence under the rules of customary international law, and the consequential “juridical act” by the International Bureau of the PCA that acknowledged the Hawaiian Kingdom’s existence, which authorized the PCA to form an arbitral tribunal on June 9, 2000 to resolve the dispute in Larsen v. Hawaiian Kingdom.
Here is a link to an explanation by the University of California, Berkeley Law School of the civil law tradition and the common law and why they are distinct. The United States and the Hawaiian Kingdom are common law systems where juries determine “facts” and the judges determine “laws.” In a civil law system, there are no juries and the judge determines both laws and facts, which is why there are certain facts, called “juridical facts,” that create legal consequences, as opposed to other facts that don’t create legal consequences.
The Supplemental Response also explained the consequences of the United States and the thirty countries that have their consulates named in the lawsuit of serving on the PCA’s Administrative Council and acknowledged the Hawaiian Kingdom as a non-Contracting State to the 1907 Hague Convention under customary international law, opinio juris.
Yesterday, the Hawaiian Kingdom filed a Request for Judicial Notice regarding Civil Law on the “Juridical Fact” of the Hawaiian State and the Consequential “Juridical Act” by the Permanent Court of Arbitration. Attached to the Request is a legal opinion by Professor Federico Lenzerini from the University of Siena, Italy, which is a civil law country. In its Request, the Hawaiian Kingdom stated:
Plaintiff HAWAIIAN KINGDOM hereby requests that, pursuant to FRCP Rule 44.1, the Court take judicial notice of the civil law regarding the juridical act of the Permanent Court of Arbitration (“PCA”) recognizing the juridical fact of the Statehood of the Hawaiian Kingdom and the Council of Regency as its government.
Attached to the accompanying declaration as Exhibit “1” is an expert opinion of Professor Federico Lenzerini, a professor of international law at the University of Siena, Italy. Italy’s legal system is civil law and Professor Lenzerini is very familiar with the civil law tradition providing the ontological legal basis of the juridical fact of the Statehood of the Hawaiian Kingdom and the Council of Regency as its government, and of the juridical act taken by the PCA within the “reasonings and analogies of the…civil law.” Furthermore, the PCA is situated in the Netherlands, which is a civil law country like Italy.
Plaintiff contends, in support of its amended complaint for declaratory and injunctive relief, that the Court’s transformation to an Article II Court has a direct nexus to the PCA’s juridical act of acknowledging the Hawaiian Kingdom, a juridical fact, as a non-Contracting State to the 1907 Hague Convention for the Pacific Settlement of International Disputes. Accordingly, in support of said allegations and such evidence, Plaintiff requests that the Court takes judicial notice of the relevant provisions of the civil law regarding juridical facts and juridical acts.
FRCP Rule 44.1 provides as follows:
A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination shall be treated as a ruling on a question of law.
The recent filing brings in an expert’s legal opinion on the role that civil law had when the International Bureau of the PCA acknowledged the Hawaiian Kingdom’s continued existence as a State to be a “juridical fact.” Civil law refers to the action taken by the International Bureau as a “juridical act.” The International Bureau is headed by a Secretary General who is Dutch by nationality, and that the Netherlands, like Italy, is a civil law system. In other words, the Secretary General would have been familiar with a “juridical fact” and the consequential “juridical act” in accepting the international dispute of Larsen v. Hawaiian Kingdom under the jurisdiction of the PCA. In his legal opinion, attached to the Hawaiian Kingdom Request for the Court to take judicial notice, Professor Lenzerini explains:
According to a civil law perspective, the juridical act of the International Bureau of the PCA instituting the arbitration in the case of Larsen v. Hawaiian Kingdom may be compared – mutatis mutandis – to a juridical act of a domestic judge recognizing a juridical fact (e.g. filiation) which is productive of certain legal effects arising from it according to law. Said legal effects may include, depending on applicable law, the power to stand before a court with the purpose of invoking certain rights. In the context of the Larsen arbitration, the juridical fact recognized by the PCA in favour of the Hawaiian Kingdom was its quality of State under international law. Among the legal effects produced by such a juridical fact, the entitlement of the Hawaiian Kingdom to be part of an international arbitration under the auspices of the PCA was included, since the existence of said juridical fact actually represented an indispensable condition for the Hawaiian Kingdom to be admitted in the Larsen arbitration, vis-à-vis a private entity (Lance Paul Larsen). Consequently, the International Bureau of the PCA carried out the juridical act consisting in establishing the arbitral tribunal as an effect of the recognition of the juridical fact in point. Likewise, e.g., the recognition of the juridical fact of filiation by a domestic judge, also the recognition of the Hawaiian Kingdom as a State had in principle retroactive effects, in the sense that the Hawaiian Kingdom did not acquire the condition of State per effect of the PCA’s juridical act. Rather, the Hawaiian Kingdom’s Statehood was a juridical fact that the PCA recognized as pre-existing to its juridical act.
It is expected that the Court will take judicial notice of the civil law as explained by Professor Lenzerini. By doing so, the Court would appear to be moving closer to transforming itself into an Article II Court in accordance with the international law of occupation.
The day after celebrating Hawaiian Independence Day (Lā Kūʻokoʻa), the Hawaiian Kingdom filed a Supplemental Response to the United States Statement of Interest that the Department of Justice filed on November 5, 2021.
In its Supplemental Response, the Hawaiian Kingdom opened with:
The Plaintiff would like to expand on what it stated in its conclusion that the “jurisdiction of the Court as an Article II Court is consequential to the existence of the Hawaiian Kingdom as a State,” by drawing the Court’s attention to the consequences of the United States and those States whose Consulates are Defendants in this case that did not object to the Permanent Court of Arbitration (“PCA”), by its International Bureau, of its juridical act of acknowledging the Hawaiian Kingdom’s existence as a non-Contracting State, is a reflection of customary international law and the practice of States—opinio juris, thereby precluding the United States and Defendant foreign Consulates from denying otherwise.
The Plaintiff hereafter explains the significance of the PCAʻs juridical act by tying it directly to the continuity of the Hawaiian Kingdom as a juridical fact through the application of the civil law, as opposed to the common law, in international proceedings.
Throughout the world there are different legal systems. The predominant legal system is called citizens law or civil law, which draws from Roman law and spread throughout continental Europe. It developed over time on the basis of general principles that derived from a book titled Corpus Iuris Civilis (Body of Civil Law) and a set of universities. Great Britain, however, operates under a common law system derived from centuries of judge made law. The underlying difference is civil law is made by citizens and common law is made by judges. There are nearly 150 countries that have a civil law legal system.
The Hawaiian Kingdom also stated in its Supplemental Response the impact that the civil law had and continues to have in international law and international institutions such as the PCA.
According to Professor Picker, “[t]here is a wide degree of support for the proposition that civil law has served as the most significant influence on international law.” He goes on to state that “some would even argue that international law is essentially a civil law system.” And Professor Nagle explains, “[i]t is the civil-law traditions that have most widely influenced international law [and] international organizations.” Furthermore, as stated by Professors Merryman and Clark, “[t]he civil law was the legal tradition familiar to the Western European scholar-politicians who were the fathers of international law. The basic charters and the continuing legal development and operation of the European Communities are the work of people trained in the civil law tradition.”
Of the 44 Contracting States to the 1907 Convention that established the PCA at the Hague Conference in 1907, the United States and Great Britain, as common law States, were the only States that were not from a civil law tradition. The other 42 States were represented by men who were “trained in the civil law tradition.” This includes the Netherlands where the PCA is situated in its city The Hague. The current number of Contracting States to the 1907 Convention is 122, the majority of which are based on the civil law tradition.
Therefore, it stands to reason that the action taken by the PCA in acknowledging the continuity of the Hawaiian Kingdom as a State for purposes of its institutional jurisdiction should be viewed through the reasonings of the civil law tradition as opposed to the common law.
The two legal systems deal with evidence differently mainly because there are no juries in the civil law system. Jury trials originated in England. In the common law system, the judge determines the law and its effect, but the jury determines the facts. In the civil law system, because there is no jury, certain facts can create a juridical or legal effect. Juridical is another word for legal.
In the civil law system, the opposing parties argue points of law and the judge controls the gathering of evidence or facts. While in the common law system, the parties to the conflict gathers evidence to support their side of the argument. The judge does not get involved with evidence except to ensure the introduction of evidence is according to certain rules. In its Supplemental Response, the Hawaiian Kingdom explains how facts work in a civil law system:
In the civil law tradition, a fact is juridical or legal when it produces a legal effect, by virtue of a legal rule. In Schexnider v. McDermott Int’l Inc., the federal court in Louisiana stated juridical facts are defined as “events having prescribed legal effects.” According to the German tradition of the civil law, a juridical act, which is triggered by a juridical fact, “sets the law in motion and produces legal consequences.” Under American jurisprudence, the equivalent of a juridical act in the civil law tradition is judicial notice of a fact or facts.
The Hawaiian Kingdom, as an independent and sovereign State in continuity, is a juridical fact according to the civilian law. Both rights and powers held by a subject of international law may arise from a juridical fact, which is precisely what occurred when arbitral proceedings were initiated in Larsen v. Hawaiian Kingdom at the PCA, being a subject of international law. An arbitration agreement was entered into between Larsen and the Hawaiian Kingdom on October 30, 1999, and a notice of arbitration was filed by the claimant on November 8, 1999, with the PCA’s International Bureau. Access to the institutional jurisdiction of the PCA would only be triggered by the juridical fact of the Hawaiian Kingdom being a non-Contracting “State,” and not by Larsen as a “private party.” This juridical fact set in motion and produced legal consequences, which was the convening of the ad hoc arbitral tribunal on June 9, 2000.
Prior to the formation of the tribunal under the auspices of the PCA, as an intergovernmental organization and subject of international law, it required that the international dispute conform to the provisions of the 1907 Hague Convention on the Pacific Settlement of International Disputes (1907 Convention) as a matter of international law. Access to the auspices of the PCA are for Contracting and non-Contracting States, and the Hawaiian Kingdom is a non-Contracting State to the 1907 Convention. Private parties do not have access to the PCA unless sponsored by their State. In this case, the Plaintiff did not sponsor Larsen in its suit, but rather waived its sovereign immunity by consenting to submit their dispute to the PCA for resolution of the dispute by virtue of Article 47, which is a legal rule that provides for non-Contracting States to have access to the jurisdiction of the PCA.
The juridical fact of the Hawaiian State and its continuity produced a legal effect for the International Bureau of the PCA to do a juridical act of accepting the dispute under the auspices of the PCA by virtue of Article 47, being a legal rule. The international dispute between Larsen and the Hawaiian Kingdom was not created by the juridical fact, but rather the juridical fact determined the legal conditions for the PCA’s acceptance of the dispute, which is the juridical act by which the dispute is established in order to have access to the jurisdiction of the PCA.
The significance of the juridical act taken by the International Bureau acknowledging the Hawaiian Kingdom’s continued existence, is that the United States, as a member of the PCA Administrative Council, was fully aware of the Larsen case and did not object to the juridical act by the International Bureau. In fact, the United States entered into an agreement with the Council of Regency to access all records and pleadings of the case.
State continuity of the Hawaiian Kingdom is determined by the rules of customary international law. And while State members of the Administrative Council furnishes to all Contracting States “with an annual Report” in accordance with Article 49, it does represent “State practice [that] covers an act or statement by…State[s] from which views can be inferred about international law,” and it “can also include omissions and silence on the part of States.” The fact that the United States, to include all member States of the Administrative Council and those States whose consulates are Defendants in this case, did not object to the International Bureau’s juridical act of acknowledging the Hawaiian Kingdom’s existence as a non-Contracting State, is a reflection of the practice of States—opinio juris. Furthermore, the Administrative Council is a treaty-based component of an intergovernmental organization comprised of representatives of States, and “their practice is best regarded as the practice of States.”
In other words, the member States of the Administrative Council, by their failure to protest the International Bureauʻs juridical act of acknowledging the Hawaiian Kingdom as a State, is considered the practice of States, which is a part of customary international law. By their silence they admit that according to the rules of customary international law, the Hawaiian Kingdom continues to exist. It also acknowledges that the continued existence of the Hawaiian Kingdom is a juridical fact, and not just a fact.
In the civil law system not every fact produces legal consequences. A chair in the kitchen is a fact, but it doesn’t produce legal consequences. But the existence of a State, which is a subject of international law, is a juridical fact because it does produce legal consequences. The PCA’s juridical act is an acknowledgment that the existence of the Hawaiian Kingdom as a State is a juridical fact in the civil law system. The nearly 150 countries in the world that have a civil law legal system would have to accept that the Hawaiian Kingdom is a juridical fact by virtue of the juridical act done by the PCA. Juridical facts create juridical acts. A juridical act does not operate on its own. It has to stem from a juridical fact.
In common law States, like the United States, facts can produce legal consequences but the facts need to be recognized by a judge, which is called judicial notice. According to the Legal Information Institute, when “a court takes judicial notice of an indisputable fact in a civil case, the fact is considered conclusive.” When one of the parties in a federal lawsuit does not recognize the status of a country as an independent State, the court could, on its own, reach out to the U.S. State Department to see whether that country in question is a State, and take judicial notice of the determination by the State Department that it is a State for purposes of international law. Rule 201(b)(2) of the Federal Rules of Evidence provides that the “court may judicially notice a fact that is not subject to reasonable dispute because it…can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.”
In Hawaiian Kingdom v. Biden, the Magistrate Judge or the District Court Judge can, by judicial notice, recognize the continued existence of the Hawaiian Kingdom by virtue of the actions taken by the PCA because the PCA is a source “whose accuracy cannot reasonably be questioned.” This would then allow the federal court to transform itself into an Article II Court. In its conclusion, the Hawaiian Kingdom stated:
This Court is in the same situation as the PCA regarding jurisdiction as an institution. Where the PCA’s juridical act stems from the juridical fact of the Hawaiian State’s continued existence whereby the PCA established the arbitral tribunal pursuant to Article 47 of the 1907 Convention regarding jurisdiction, this Court, as a matter of jurisdiction, is capable of an Order taking judicial notice of the fact of the Hawaiian State’s continued existence that would grant this Court subject matter and personal jurisdiction pursuant to Article 43 of the 1907 Hague Regulations, where “[t]he authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”