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.”