In 2016, Duke University Press published Tom Coffman’s Nation Within: The History of the American Occupation of Hawai‘i. While this book has been in circulation since 1998, it is the first time that an academic publisher has put its name to the book. The goal of Duke University Press is “to contribute boldly to the international community of scholarship.” “By insisting on thorough peer review procedures in combination with careful editorial judgment, the Press performs an intellectual gatekeeping function, ensuring that only scholarship of the highest quality receives the imprimatur of the University.”

Dr. Keanu Sai, a political scientist, whose doctoral research covered the American occupation of the Hawaiian Kingdom and its continued existence today as an independent State, was asked by the Hawaiian Journal of History to write a book review of Coffman’s Nation Within for its first publication in 2017. In his review, Dr. Sai reveals the “smoking gun” that was brought to his attention by Dr. Ron Williams of the University of Hawai‘i at Manoa.

***************************************************************

In Nation Within: The History of the American Occupation of Hawai‘i, Tom Coffman exhibits a radical shift by historians in interpreting political events post-1893. When Coffman first published his book in 1998, his title reflected a common misunderstanding of annexation. But in 2009, he revised the title by replacing the word Annexation with the word Occupation. Coffman admitted he made this change because of international law (p. xvi). By shifting the interpretive lens to international law, Coffman not only changed the view to occupation, but would also change the view of the government’s overthrow in 1893. While the book lacks any explanation of applicable international laws, he does an excellent job of providing an easy reading of facts for international law to interpret.

In international law, there is a fundamental rule that diplomats have a duty to not intervene in the internal affairs of the sovereign State they are accredited to. Every sovereign State has a right “to establish, alter, or abolish, its own municipal constitution [and] no foreign State can interfere with the exercise of this right” (Halleck’s International Law, 3rd ed., p. 94). For an ambassador, a violation of this rule would have grave consequences. An offended State could proceed “against an ambassador as a public enemy…if justice should be refused by his own sovereign” (Wheaton’s International Law, 8th ed., p. 301).

John Stevens, the American ambassador to the Hawaiian Kingdom arrived in the islands in the summer of 1889. As Coffman notes, Stevens was already fixated with annexation when he “wrote that the ‘golden hour’ for resolving the future status of Hawai‘i was at hand,” (p. 114) and began to collude with Lorrin Thurston (p. 116). Thurston was not an American citizen but rather a third-generation Hawaiian subject. Stevens’ opportunity to intervene and seek annexation would occur after Lili‘uokalani “attempted to promulgate a new constitution, [which] was the event Thurston and Stevens had been waiting for” (p. 120).

On January 16, Stevens orders the landing of U.S. troops and “tells Thurston that if the annexationists control three buildings—‘Iolani Palace, Ali‘iolani Hale, and the Archives—he will announce American recognition of the new government” (p. 121). The following day, “Stevens tells the queen’s cabinet that he will protect the annexationists if they are attacked or arrested by government police” (Ibid.). However, unbeknownst to Stevens, the insurgents only took over Ali‘iolani Hale, which housed “clerks of the Kingdom” (p. 125). One of the insurgents, Samuel Damon, knowing Stevens’ recognition was premature, sought to convince Lili‘uokalani that her resistance was futile because the United States had already recognized the new government, and that she should order Marshal Charles Wilson, head of the government police, to give up the police station. Wilson was planning an assault on the government building to apprehend the insurgents for treason in spite of the presence of U.S. troops.

International law clearly interprets these events as intervention and Stevens to be a “public enemy” of the Hawaiian Kingdom. This was the same conclusion reached by President Grover Cleveland, whose investigation was an indictment of Stevens and the commander of the USS Boston, Captain Gilbert Wiltse. “The lawful Government of Hawai‘i was overthrown without the drawing of a sword or the firing of a shot,” Cleveland said, “by a process every step of which, it may be safely asserted, is directly traceable to and dependent for its success upon the agency of the United States acting through its diplomatic and naval representatives” (p. 144). Because of diplomatic immunity, the United States, as the sending State, would be obliged to prosecute Stevens and Wiltse for treason under American law.

On December 20, 1893, a resolution of the U.S. Senate called for a separate investigation to be conducted by the Senate Committee on Foreign Relations. Chaired by Senator John Morgan, a vocal annexationist, the purpose of the Senate investigation was to repudiate Cleveland’s investigation and to vindicate Stevens and Wiltse of criminal liability. One week later, the Committee held its first day of hearings in Washington, DC. Stevens appeared before the Committee and fielded questions under oath on January 20, 1894. When asked by the Chairman if his recognition of the provisional government was for the “purpose of dethroning the Queen,” he responded, “Not the slightest—absolute noninterference was my purpose” (Report from the Committee on Foreign Relations— Appendix, p. 550).

After the hearings, two reports were submitted on February 26, 1894—a Committee Report and a Minority Report. The committee of eight senators was split down the middle, with Morgan giving the majority vote for the Committee Report. Half of the committee members did not believe Stevens’ testimony of his non-intervention. The Minority Report stated, “We can not concur…in so much of the foregoing report as exonerates the minister of the United States, Mr. Stevens, from active officious and unbecoming participation in the events which led to the revolution” (Ibid., p. xxxv).

The Senate Committee’s investigation could find no direct evidence that would disprove Stevens’ sworn testimony, but in 2016, the “smoking gun” was found that would prove Stevens was a public enemy of the Hawaiian Kingdom, committed perjury before the Committee, and would no doubt have been prosecuted under the 1790 federal statute of treason. The Hawaiian Mission Houses Archives is processing a collection of documents given to them by a descendent of William O. Smith. Smith was an insurgent that served as the attorney general for Sanford Dole, so-called president of the provisional government.

The “smoking gun” is a note to Dole signed by Stevens marked “private” and written under the letterhead of the “United States Legation” in Honolulu and dated January 17, 1893. Stevens writes, “Judge Dole: I would advise not to make known of my recognition of the de facto Provisional Government until said Government is in possession of the police station.”

As a political scientist, Coffman’s book is a welcomed addition to arresting revisionist history.

My name is Dr. David Keanu Sai and from 1999-2001, I served as Agent for the Hawaiian Kingdom in international arbitration proceedings under the auspices of the Permanent Court of Arbitration, The Hague, Netherlands. The case was Lance Paul Larsen v. Hawaiian Kingdom (Larsen case). I was responsible for the drafting of the pleadings as well as communication with the Permanent Court of Arbitration’s (PCA) International Bureau-Secretariat, headed by a Secretary General, regarding the case. So I am very well acquainted with the case as well as what was going on behind the formalities of the case and the confines of the published Award in the International Law Reports, vol. 119, p. 566.

I am also a lecturer at the University of Hawai‘i with a M.A. and a Ph.D. in political science specializing in international relations and public law. My doctoral research and published law articles centers on the continuity of the Hawaiian Kingdom as an independent State under a prolonged occupation by the United States of America (United States) since the Spanish-American War.

After reviewing the two Awards by the Tribunal in the South China Sea case, I perused the Philippines’ Memorial and transcripts of the proceedings to find any reference to the Larsen case that was cited in Tribunal’s Award on Jurisdiction and Admissibility (paragraph 181) as well as the Award on the Merits (paragraph 157, footnote 98). In the Memorial, which is called a pleading in international proceedings, the Philippines brought up the Larsen case in paragraphs 5.125 and 5.126. It was also mentioned by Professor Philippe Sands, QC, in his expert testimony to the Tribunal during a hearing on jurisdiction on July 8, 2015, and found on page 123 of the transcripts. On the Larsen case, the Philippine Memorial stated:

There is much said in these two paragraphs that may escape the layman who may not be familiar with Hawai‘i’s legal history and its place in international law. By the Philippines own admission it recognized the existence of the Hawaiian Kingdom as a party to the arbitration, and without the participation of the United States, as an indispensable third party, the Philippines stated the Larsen Tribunal “could not rule on the lawfulness of the conduct of the respondent, the Kingdom of Hawaii.”

Here at the University of Hawai‘i William S. Richardson School of Law, a few faculty members, namely Dr. Diane Desierto, Dr. David Cohen, and Carol Peterson, have gone so far as to call the Larsen case mere puffery. But can the Larsen case be an exaggeration of the Hawaiian Kingdom’s continued existence under international law and the role of the principle of indispensable third parties when it comes to the United States, as claimed by these faculty members who admitted, at a closed forum, they don’t know the legal history of Hawai‘i?

Obviously, the Philippine Government did not think so, and nor did the Tribunal in the South China Sea arbitration. As a landmark case in international arbitration, the South China Sea arbitration has drawn attention to the Larsen case again, which gives me an opportunity to set the record straight in light of the detractors, but also for those who are just curious.

In the Larsen case, the Hawaiian Kingdom, which I served as Agent along with others on my legal team, was a “Defendant,” which in international proceedings is also called a “Respondent.” This means that the Hawaiian Kingdom was defending itself from the allegations made by Larsen, as the “Plaintiff,” which is also called a “Claimant,” that the Council of Regency was allowing the unlawful imposition of American municipal laws in the territory of the Hawaiian Kingdom, which led to his unfair trial and subsequent incarceration.

By going to Larsen v. Hawaiian Kingdom at the PCA’s case repository, it identifies me as the Agent for the Hawaiian Kingdom, identifies the Hawaiian Kingdom as a “State,” and under the heading of “case description,” it provides the dispute as follows:

The Philippines’ Memorial also cites an article by Bederman and Hilbert on the Larsen case that was originally published in the American Journal of International (vol. 95, p. 928), and republished the article in the Hawaiian Journal of Law and Politics (vol. 1, p. 82) that the Philippines cited. According to Bederman and Hilbert, who succinctly stated the dispute, “At the center of the PCA proceeding 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 committed against him.”

Clearly, the Larsen case was not about whether the Hawaiian Kingdom continues to exist, but was based on the presumption that it does exist, and, as such, a dispute arose between a Hawaiian national and the Hawaiian Government that stemmed from an illegal and prolonged occupation by the United States. My responsibility, as the Agent, was to defend the Hawaiian Government from Larsen’s allegation of allowing the imposition of American municipal laws in the Hawaiian Islands.

I was also keenly aware that before the PCA could establish the Arbitral Tribunal to preside over the dispute between Larsen and the Hawaiian Kingdom, it had to first confirm that the Hawaiian Kingdom as a “State” continues to exist in order for the PCA to exercise its “institutional jurisdiction” (United Nations Dispute Settlement, Permanent Court of Arbitration, p. 15) so that it could facilitate the creation of an ad hoc tribunal. By extension, the PCA also had to confirm that Larsen’s nationality was a Hawaiian subject, and the Council of Regency was the Hawaiian Government.

As an intergovernmental organization established under the 1899 Hague Convention, I, and the 1907 Hague Convention, I, the PCA facilitates the creation of ad hoc arbitral tribunals to settle disputes between two or more States, i.e., the Philippines v. China, or between a State and a private entity, i.e., Romak, S.A. v. Uzbekistan. Romak, S.A. is a Swiss company that specializes in the sale of grain and cereal products. In both cases, the States have to exist in fact and not in theory in order for the PCA to have institutional jurisdiction. Disputes must be “international” and not “municipal,” which are disputes that go before national courts of States and not international courts or tribunals.

Since the arbitration agreement between Larsen and the Hawaiian Government was submitted to the PCA on November 8, 1999, the PCA was doing their due diligence as to whether the Hawaiian Kingdom currently exists as a State under international law. If the Hawaiian Kingdom does not exist then this fact would negate the existence of the nationality of Larsen as a Hawaiian subject and the existence of the Council of Regency as the Hawaiian government, and, therefore, the dispute.

After its due diligence, however, the PCA could not deny that the Hawaiian Kingdom did exist as an independent State, and, along with other treaties, the Hawaiian Kingdom had a treaty with the Netherlands, which houses the PCA itself. However, what faced the PCA is that it could not find any evidence that the Hawaiian Kingdom had ceased to exist under international law. Only by way of a “treaty of cession,” whereby the Hawaiian Kingdom agreed to merge itself into the territory of the United States, could the Hawaiian Kingdom have been extinguished under international law.

There was never a treaty, except for American municipal laws, enacted by the United States Congress, that treat Hawai‘i as if it were annexed. Municipal laws are not international laws, as between States, but are laws that are limited in scope and authority to the territory of the State that enacted them. In other words, an American municipal law could no more annex the Hawaiian Kingdom, than it could annex the Netherlands.

My legal team and Larsen’s attorney knew this and operated on the “presumption” that the Hawaiian Kingdom continues to exist until evidence shows otherwise. This was the same conclusion that the PCA came to, which prompted a telephone conversation I had with the PCA’s Secretary General, Tjaco T. van den Hout, in February 2000. In that telephone conversation, he recommended that the Hawaiian Government along with Larsen’s Counsel, Ms. Ninia Parks, provide a formal invitation to the United States Government to join in the arbitration. I recall his specific words to me on this matter. He said that in order to maintain the integrity of this case, he recommended that the Hawaiian Government, with the consent of Larsen’s legal representative, provide a formal invitation to the United States to join in the current arbitration. He then requested that I provide evidence that the invitation was made so that it can be made a part of the record for the case.

This invitation would elicit one of the three possible responses: first, the United States accepts the invitation, which recognizes the existence of the Hawaiian Kingdom and its government and will have to answer to its unlawful imposition of American municipal laws that led to Larsen’s unfair trial and incarceration; second, the United States denies the existence of the Hawaiian Kingdom because Hawai‘i is the so-called 50th State of the Federal Union and demands that the PCA cease and desist in entertaining the dispute; or, third, the United States denies the invitation to join in the arbitration but does not deny the existence of the Hawaiian Kingdom and the dispute between a Hawaiian national and the government representing the Hawaiian Kingdom.

On March 3, 2000, a conference call meeting was held with John Crook from the United States State Department in Washington, D.C., together with myself representing the Hawaiian Government and Ms. Parks representing Larsen. After the meeting, I drafted a letter to Crook that covered what was discussed in the meeting regarding the invitation and a carbon copy was sent to Secretary General van den Hout, as he requested, so that it could be placed on the record that an invitation was made. A few days later the United States Embassy in The Hague notified the PCA that they denied the invitation to join in the arbitration, but requested permission from the Hawaiian Government and Ms. Parks, on behalf of Larsen, to have access to all pleadings and transcripts of the case. Both Ms. Parks and I were individually contacted by telephone from the PCA’s Deputy Secretary General, Phyllis Hamilton, of the request made by the US Embassy, which we both consented to. It was also agreed that the records of the proceedings would be open to the public.

The United States took the third option and did not deny the existence of the Hawaiian Kingdom. Thereafter, the PCA began to form the Arbitral Tribunal the following month in April of 2000. Memorials were filed with the Tribunal by Larsen on May 22, 2000, and the Hawaiian Government on May 25, 2000. The Hawaiian Government then filed its Counter-Memorial on June 22, 2000, and Larsen its Counter-Memorial on June 23, 2000.

After the pleadings were submitted, the Tribunal issued Procedural Order no. 3 on July 17, 2000. In the Procedural Order, the Tribunal articulated the dispute from the pleadings in the following statement.

The Tribunal further stated in the Procedural Order that it “is concerned whether the first issue does in fact raise a dispute between the parties, or, rather, a dispute between each of the parties and the United States over the treatment of the plaintiff by the United States. If it is the latter, that would appear to be a dispute which the Tribunal cannot determine, inter alia because the United States is not a party to the agreement to arbitrate.” The Tribunal, therefore, stated that it could not get to the merits of the case regarding “redress against the Respondent Government” as the second issue, until it address the first issue that Larsen’s “rights as a Hawaiian subject are being violated…by the United States of America.” This first issue that the Tribunal was asked to determine is what caused the Tribunal to raise the principle of an “indispensable third party” that stemmed from the Monetary Gold case. In other words, could the Tribunal proceed to rule on the lawfulness of the conduct of the Hawaiian Government when its judgment would imply an evaluation of the lawfulness of the conduct of the United States, which is not a party to the case.

The Tribunal scheduled oral hearings to be held at the PCA on December 7, 8 and 11, 2000.

https://vimeo.com/17007826

A day before the oral hearings were to begin on December 7, the three arbitrators met with myself and legal team and Ms. Parks in the PCA to go over the schedule and what we can expect. What they also provided to us were booklets of the decisions by the International Court of Justice, namely the Monetary Gold Removed from Rome in 1943 (Italy v. the United Kingdom, France and the United States), Case Concerning Certain Phosphate Land in Nauru (Nauru v. Australia), and Case Concerning East Timor (Portugal v. Australia).

All three cases centered on the indispensable third party principle and that we should be prepared to respond as to how this case can proceed without the participation of the United States. In the Monetary Gold case it was on the non-participation of Albania; the Nauru Case was the non-participation of New Zealand and the United Kingdom; and the East Timor case was the non-participation of Indonesia. Of the three cases, only the Nauru case could proceed because the ICJ concluded that New Zealand and the United Kingdom were not indispensable third parties.

After two days of hearings, it was evident that the Tribunal would not be able to adjudge and declare, according to Procedural Order no. 3, that Larsen’s “rights as a Hawaiian subject are being violated…by the United States of America,” because the United States was not a party to the proceedings. Without a decision by the Tribunal that finds Larsen’s rights are being violated, he would be unable to get to the second issue of having the Tribunal declare and adjudge that he “does have ‘redress against the Respondent Government’ in relation to these violations.” In light of this, I knew that Larsen would not prevail in these proceedings without the participation of the United States. On the final day of the hearings, December 11, I decided to ask the Tribunal to make a determination on a topic that I felt would not violate the indispensable third party principle that was at the center of these proceedings.

The Hawaiian Government needed a pronouncement by the Tribunal as to the legal status of the Hawaiian Kingdom under international law that would deny the lawfulness of American municipal laws within Hawaiian territory. In other words, the Hawaiian Government needed a pronouncement of international law that could be cited as a bar to American municipal laws from being applied in Hawaiian territory. This fundamental bar of one State’s municipal laws to be applied within the territory of another State centers on the legal meaning of “independence.”

In international arbitration between the Netherlands and the United States at the PCA (Island of Palmas case), the arbitrator explained what the term independence means in international law. In the Award (p. 8), Judge Max Huber stated, “Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. The development of the national organization of State during the last few centuries and, as a corollary, the development of international law, have established this principle of the exclusive competence of the State in regard to its own territory.”

Oppenheim, International Law, Vol. 1, p. 177-8 (2nd ed. 1912), explains: “Sovereignty as supreme authority, which is independent of any other earthly authority, may be said to have different aspects. As excluding dependence from any other authority, and in especial from the authority of the another State, sovereignty is independence. It is external independence with regard to the liberty of action outside its borders in the intercourse with other States which a State enjoys. It is internal independence with regard to the liberty of action of a State inside its borders. As comprising the power of a State to exercise supreme authority over all persons and things within its territory, sovereignty is territorial supremacy. As comprising the power of a State to exercise supreme authority over its citizens at home and abroad, sovereignty is personal supremacy. For these reasons a State as an International Person possesses independence and territorial and personal supremacy.”

With this in mind, I made the following statement and request to the Tribunal that is provided in the transcripts of the final day of the hearings on December 11.

The issue before the Tribunal was whether Larsen could hold to account the Hawaiian Government for allowing the unlawful imposition of American municipal laws within Hawaiian territory that led to his unfair trial and subsequent incarceration. My request of the Tribunal on the last day of the oral hearings was to have the Tribunal acknowledge and pronounce the legal status of Hawai‘i under international law as an “independent State,” which, as a co-equal, the United States could not impose its municipal laws within Hawaiian territory without violating international law.

My intent, was to move beyond the dispute with Larsen and address the unlawful imposition of American municipal laws across the entire territory of Hawai‘i and everyone affected by it, not just Larsen. I understood that my request of the Tribunal would not violate the indispensable third party principle, because for the Tribunal to make this pronouncement there would be no need to address the lawfulness or unlawfulness of the conduct of the United States, but merely to acknowledge historical facts.

My request of the Tribunal was similar to the Philippines request of the South China Sea Tribunal to determine whether or not the landmasses in the South China Sea are islands or rocks. The Philippines argued that since it is merely a determination of facts, the Tribunal would not be getting into the lawfulness or unlawfulness of the conduct of States regarding the sovereignty over these islands. The sovereign claims over these land masses would be whether the land masses are islands as defined under the United Nations Convention on the Law of the Sea that establish a maritime zone, or are they rocks that would not establish the maritime zones. According to Article 121(3) of the Convention, an island must “sustain human habitation or economic life of [its] own” in order to generate maritime zones, i.e., the exclusive economic zone (EEZ) of 200 miles from its coast. This is how the Philippines successfully argued why the principle of indispensable third parties would not apply.

On February 5, 2001, the Tribunal issued the Award on Jurisdiction, and concluded that the United States was an indispensable third party. In paragraph 12.5, the Tribunal explained, “It follows that the Tribunal cannot determine whether the [Hawaiian Kingdom] has failed to discharge its obligation towards [Lance 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, did answer my request, which is provided in paragraph 7.4 of the Award. The Tribunal stated, “A perusal of the material discloses that in the nineteenth century the Hawaiian Kingdom existed as an independent State recognised as such by the United States of America, the United Kingdom and various other States, including by exchanges of diplomatic or consular representatives and the conclusion of treaties.” By using the phrase, “a perusal of the material,” the Tribunal made it clear that its conclusion that the United States recognized the Hawaiian Kingdom as an independent State was drawn from the facts of the case.

By declaring that the United States recognized “the Hawaiian Kingdom as an independent State,” is another way of stating that the United States recognized that only Hawaiian laws could be applied in Hawaiian territory and not the municipal laws of the United States. Through these international proceedings, the Hawaiian Government was able to broaden the impact of an unlawful occupation beyond the Larsen case to now include all persons that have been victimized by the unlawful imposition of American municipal laws within the territory of the Hawaiian Kingdom.

The Award of the South China Sea arbitration’s reference of the Larsen v. Hawaiian Kingdom is recognition of the integrity of the Larsen case itself and why it is now a precedent case regarding the principle of indispensable third parties along with the Monetary Gold case and the East Timor case. It is also an acknowledgment of the caliber of those individuals who served as arbitrators, two of which are now serving as Judges on the International Court of Justice, namely Judge Christopher Greenwood and Judge James Crawford, who served as President of the Tribunal.

When I entered the University of Hawai‘i Political Science Department to get my M.A. and Ph.D. I also planned to address the misinformation regarding Hawai‘i as the 50th State of the American Union and the categorization of native Hawaiians as indigenous people as defined under United Nations documents. This is a false narrative that has already been rebuked by the mere fact of the Larsen case, which has now become a precedent case in international law. This information about the Hawaiian Kingdom has made people very uncomfortable, but that’s what happens when you’re faced with the truth.

The recent South China Sea arbitration, being a landmark case, has cited the Larsen v. Hawaiian Kingdom case as one of the international precedents on “indispensable third parties” along with the Monetary Gold Removed from Rome in 1943 case and East Timor case in its Arbitral Award on Jurisdiction and Admissibility (paragraph 181). This is a significant achievement for the Hawaiian Kingdom in international law.

On July 12, 2016, the Arbitral Tribunal in the South China Sea Arbitration (The Republic of the Philippines v. the People’s Republic of China), established under the auspices of the Permanent Court of Arbitration (PCA), issued its decision in The Hague, Netherlands. The decision found that China’s claims over manmade islands in the South China Sea have no legal basis. Its decision was based on the definition of an “island” under the United Nations Convention on the Law of the Sea (1982) (Convention).

According to Article 121(3) of the Convention, an island must “sustain human habitation or economic life of [its] own” in order to generate maritime zones, i.e., the exclusive economic zone (EEZ) of 200 miles from its coast. Therefore, China’s creation of islands were never islands to begin with but rather reefs or rocks, which precluded China from claiming any maritime zones. For background of the dispute visit the New York Times “Philippines v. China, Q. and A. on South China Sea.”

At first glance, it would appear that China contested the jurisdiction of the Arbitral Tribunal in a Position Paper it drafted on December 7, 2014, and on this basis refused to participate in the proceedings held at the PCA in The Hague, Netherlands. So how is it possible that the Arbitral Tribunal pronounces a ruling against China when it hasn’t participated in the arbitration?

The simple answer is that the Arbitral Tribunal could issue a ruling because China “did” participate in the proceedings and has consented to PCA’s authority to establish the Tribunal by virtue of the UN Convention on the Law of the Sea (1982). As noted in the PCA’s press release, the PCA currently has 12 other cases established under Annex VII of the Law of the Sea Convention. China is a State party to the UN Convention on the Law of the Sea, and arbitration is recognized as a means to settle disputes under Annex VII.

As a State party to the Convention, China consented to arbitration even if it chose not to participate, but it did signify its participation when it made its position public regarding the arbitration proceedings. According to the Arbitral Tribunal in its Arbitral Award on Jurisdiction and Admissibility, it stated in paragraph 11, “the non-participation of China does not bar this Tribunal from proceeding with the arbitration. China is still a party to the arbitration, and pursuant to the terms of Article 296(1) of the Convention and Article 11 of the Annex VII, it shall be bound by any award the Tribunal issues.”

What is not commonly understood is that there are two matters of jurisdiction in cases that come before the PCA. The first is “institutional jurisdiction” of the PCA, and the second is “subject matter jurisdiction” of the Arbitral Tribunal over the particular dispute.

As an intergovernmental organization established under the 1899 Hague Convention, I, and the 1907 Hague Convention, I, the PCA facilitates the creation of ad hoc Arbitral Tribunals to settle disputes between two or more States (interstate), between a State and an international organization, between two or more international organizations, between a State and a private entity, or between an international organization and a private entity (United Nations Dispute Settlement, Permanent Court of Arbitration, p. 15). Disputes must be “international” and not “municipal,” which are disputes that go before national courts of States and not international courts or tribunals.

An explanation of the PCA’s institutional jurisdiction is also provided in the South China Sea case press release. On page 3 the press release the PCA states, “The Permanent Court of Arbitration is an intergovernmental organization established by the 1899 Hague Convention on the Pacific Settlement of International Disputes. The PCA has 121 Members States. Headquartered at the Peace Palace in The Hague, the Netherlands, the PCA facilitates arbitration, conciliation, fact-finding, and other dispute resolution proceedings among various combinations of States, State entities, intergovernmental organizations, and private parties.” China became a member State of the PCA on Nov. 21, 1904, and the Philippines on Sep. 12, 2010.

The “institutional jurisdiction” was satisfied by the PCA because both the Philippines and China are States, which makes it an interstate arbitration, and both are parties to the UN Convention on the Law of the Sea, which under Annex VII provides for arbitration of disputes under the Convention. It was under this provision that the PCA could establish the Arbitral Tribunal.

The first matter that the Tribunal had to address was whether it had “subject matter jurisdiction” over the dispute, which it found that it did. In paragraph 146 of the Arbitral Award, the Tribunal stated, “China’s Position Paper was said by the Chinese Ambassador to have “comprehensively explain[ed] why the Arbitral Tribunal…manifestly has no jurisdiction over the case.” In its Procedural Order No. 4, para. 1.1 (21 April 2015), the Tribunal explained, “the communications by China, including notably its Position Paper of 7 December 2015 and the Letter of 6 February 2015 from the Ambassador of the People’s Republic of China to the Netherlands, effectively constitute a plea concerning this Arbitral Tribunal’s jurisdiction for the purposes of Article 20 of the Rules of Procedure and will be treated as such for the purposes of this arbitration.”

In this initial phase of jurisdiction, the Tribunal, however, also had to deal with the rule of “indispensable third parties” which applied to States that are not participating in the arbitration and whose rights could be affected by the Tribunal’s decision. These States were Viet Nam, Malaysia, Indonesia and Brunei. This rule would not apply to China since the Tribunal recognized China’s participation. Paragraph 157 of the Arbitral Award addressed the indispensable third-party rule, i.e. Viet Nam, which states, “The Tribunal noted that this arbitration differs from past cases in which a court or tribunal has found the involvement of a third party to be indispensable. The Tribunal recalled that ‘the determination of the nature of and entitlements generated by the maritime features in the South China Sea does not require a decision on issues of territorial sovereignty’ and held accordingly that ‘[t]he legal rights and obligation of Viet Nam therefore do not need to be determined as a prerequisite to the determination of the merits of the case.'”

In other words, the Tribunal was going to determine in accordance with the UN Convention on the Law of the Sea, whether or not the reefs and rocks in the South China Sea constitute the definition of islands as defined under the Convention, which would determine whether or not it had a territorial sea of 12 miles and an EEZ (Exclusive Economic Zone) of 200 miles. It would not be determining matters of sovereignty over the islands. If they weren’t islands, but rather reefs or rocks, then China’s claims to a territorial sea and an EEZ would become irrelevant. The Arbitral Award determined that they were not islands as defined under the UN Convention on the Law of the Sea.

Of importance in these proceedings is that the Larsen v. Hawaiian Kingdom was specifically referenced in the Award on Jurisdiction in paragraph 181, which was also referenced in the Arbitral Award, paragraph 157, footnote 98. In the Award on Jurisdiction, the Tribunal stated, “The present situation is different from the few cases in which an international court or tribunal has declined to proceed due to the absence of an indispensable third-party, namely in Monetary Gold Removed from Rome in 1943 and East Timor before the International Court of Justice and in the Larsen v. Hawaiian Kingdom arbitration. In all of those cases, the rights of the third States (respectively Albania, Indonesia, and the United States of America) would not have been affected by a decision in the case, but would have ‘form[ed] the very subject matter of the decision.’ Additionally, in those cases the lawfulness of activities by third States was in question, whereas here none of the Philippines’ claims entail allegations of unlawful conduct by Viet Nam or other third States.”

In the Larsen case, the PCA exercised its “institutional jurisdiction” when it convened the Arbitral Tribunal, because it recognized that the Hawaiian Kingdom is a “State” in a dispute with a Hawaiian subject who was a “private entity.” Like the South China Sea case, once the Tribunal was convened, it had to address whether or not it had subject matter jurisdiction over the dispute between Larsen and the Hawaiian Kingdom, because of the fact that the United States was not a party.

This dispute was specifically stated in the arbitration agreement that the PCA based its institutional jurisdiction. Paragraph 2.1 of the Arbitral Award states, “(a) Lance Paul Larsen, Hawaiian subject, alleges that the Government of the Hawaiian Kingdom is in continual violation of its 1849 Treaty of Friendship, Commerce and Navigation with the United States of America, and in violation of the principles of international law laid [down] in the Vienna Convention on the Law of Treaties, 1969, by allowing the unlawful imposition of American municipal laws over claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom; (b) Lance Paul Larsen, a Hawaiian subject, alleges that the Government of the Hawaiian Kingdom is also in violation of the principles of international comity by allowing the unlawful imposition of American municipal laws over the claimant’s person within the territorial jurisdiction of the Hawaiian Kingdom.”

What was at the center of the dispute was the unlawful imposition of American municipal laws within the territory of the Hawaiian Kingdom. The Tribunal was not established to determine whether or not the Hawaiian Kingdom exists as a “State,” which was already recognized by the PCA prior to establishing the Tribunal under its mandate of ensuring it had “institutional jurisdiction” in the first place.

According to the American Journal of International Law (vol. 95, p. 928), “At the center of the PCA proceeding 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 committed against him.” If the Hawaiian Kingdom did not exist as a State, the PCA would not have established the Arbitral Tribunal to address the dispute.

In these proceedings, however, the Council of Regency was attempting to get the Tribunal to pronounce the existence of the Hawaiian Kingdom and even try to see if the Tribunal could issue some interim measures of protection. This was deliberately done to show that the Hawaiian Kingdom was taking affirmative steps, even during the proceedings, to do what it could in addressing the unlawful imposition of American municipal laws within Hawaiian territory, which led to Larsen’s unfair criminal trial and subsequent incarceration.

In the Arbitral Award, the Tribunal concluded that the United States was an indispensable third party. In paragraph 12.5, the Tribunal explained, “It follows that the Tribunal cannot determine whether the [Hawaiian Kingdom] has failed to discharge its obligation towards [Lance 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.'” It is clear that the Tribunal recognized the Hawaiian Kingdom as a “State” and the lawfulness of its conduct, and the United States as a “third State” and the lawfulness of its conduct.