On January 19, 2017, the Hawaiian Kingdom Government and Lance Paul Larsen entered into a Special Agreement to form a Fact-finding Commission of Inquiry under the auspices of the Permanent Court of Arbitration (PCA), The Hague, Netherlands. The International Bureau of the PCA was notified by joint letter, from the Hawaiian Government and Mr. Larsen, on January 24, 2017 to initiate the proceedings.
This move toward fact-finding is in direct response to the recommendation of the Tribunal in paragraphs 13.1-13.3 of the Award (2001) in Larsen v. Hawaiian Kingdom, 119 Int’l L. Rep. 566, 597 (2001). The Tribunal stated, “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 further stated it could “reconstitute itself as a fact-finding commission, [but a] new compromis or agreement would…have been required.”
As pointed out by the Tribunal, “Part III of each of the Hague Conventions of 1899 and 1907 provide for International Commissions of Inquiry,” and that the “PCA has also adopted Optional Rules for Fact-finding Commissions of Inquiry.” In other words, the Tribunal provided two options to form a fact-finding commission, the first under the 1907 Hague Convention, and, second, the Optional Rules. Both the Hawaiian Kingdom and Larsen agreed to the rules provided under Part III—International Commissions of Inquiry (Articles 9-36), 1907 Hague Convention, I. The International Bureau facilitates both options.
After the issuance of the Award, the parties did request for the Tribunal to be reconstituted as a Fact-finding Commission of Inquiry but due to the projected costs at the time it was later withdrawn. During the arbitration, the parties had to contend with the prospect of who would bear the burden of the costs for fact-finding since Mr. Larsen, as claimant in the arbitration, bore the costs, which amounted in excess of $150,000.00. This move, however, did not preclude the parties from entering into an agreement at a later date. Under Article VI of the Special Agreement (January 19, 2017) it was agreed that the Hawaiian Kingdom would bear the burden of costs for the fact-finding.
Prior to facilitating the establishment of the Tribunal in Larsen v. Hawaiian Kingdom, the PCA had to assure that it possessed institutional jurisdiction, which requires one of the parties to be a State. From the record of the arbitral proceedings there are two instances where the PCA acknowledged the Hawaiian Kingdom as a State for administrative purposes. The first instance is in the PCA Case Repository containing Larsen v. Hawaiian Kingdom, wherein the Respondent—Hawaiian Kingdom is identified as a “State” and the Claimant—Lance Paul Larsen as a “Private entity.” The second instance is in Annex 2—Cases conducted under the auspices of the PCA or with the cooperation of the International Bureau, PCA Annual Report 2011. In the PCA’s 2011 Annual Report, the Larsen v. Hawaiian Kingdom arbitration was listed as the thirty-third case that came under the auspices of the PCA pursuant to “article 47 of the 1907 Convention.” Article 47 provides, “The jurisdiction of the Permanent Court may, within the conditions laid down in the regulations, be extended to…non-Contracting Powers.”
According to Article III of 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.”
The formation of the Fact-finding Commission of Inquiry is not a new proceeding for the PCA to determine its institutional jurisdiction, but rather, a continuation of the proceedings already held under the jurisdiction of the PCA that moves from a dispute under arbitration to a situation under fact-finding.
As found in the 2001 Award, the primary issue was related to Article 3(1) of the Arbitration Agreement and concerned the functional capacity and legal standing of the Kingdom of Hawaii to commence and maintain an international arbitration action. The “dispute”, if any in fact existed, was not justiciable by or through international arbitration proceedings. Secondly, the United States was not made a party to the action and had not given its consent to be bound by any purported award. The 2001 Award decision dismissed the arbitration action as a matter of existing international law.
QUESTION. How were the two substantive arbitration Award defects (a & b) cured by the new January 19, 2017, “Special Agreement?”
Mr. David Keanu Sai, Ph.D. and Mr. Larsen have not clearly explained how they magically leapt over the jurisdictional standing bar and then vaulted past the “necessary party” threshold.
It will be ventured that the January 2017 “Special Agreement” is headed for the same fatality as was decided against the 2001 arbitration action and as clearly stated in the 2001 Award.
Your statement, or assertion, is, I suggest, incomplete at best or misleading at worst. It might be disingenuous but accusing you of that would be uncharitable, so I do not. “Secondly, the United States was not made a party to the action and had not given its consent to be bound by any purported award.” “Made” isn’t available in these proceedings. As far as I know, the USG never objected to the proceedings, was invited to participate, received/obtained/was provided all materials tendered to the tribunal as part of the proceedings and purposefully declined to participate. The most recent analogous refusal to participate would be China’s refusal to participate in the South China Sea arbitration. It is a fair observation that perhaps it chose to not participate in an dispute it couldn’t win. The USG did participate in the Nicaragua case, then lost, then denounced the decision and refused to do its international law duties as described by the Tribunal. If credibility is an issue here, it is an issue for the USG.
Indeed, credibility did seem to be the issue of “concern”.
Best of luck in the endeavor. Threshold issues are usually entertained and addressed in the first instance. We shall see.
Factual credibility may be an issue in a justiciable case or controversy, but faithful performance of treaties and international agreements, while giving due consideration to express reservations, are objectively fundamental.
I want to get this right. “Due consideration,” would have been what USG would have had if they had shown up to the case? Yes/No? But they DONT have to show up as it is their choice. So, is it correct to use the terminology “Due consideration?” Or is that Legal speak? I mean, they were invited/they declined.
The terminology was correctly used and applied. “Due consideration” would be incumbent upon the adjudicatory tribunal, judge, or arbiter, as the case may be.
As an example, a reservation was timely made by signatory party AZ to only be bound by a decision of the tribunal or arbiter (1) on a case-by-case basis, and (2) only at the formal and express consent of signatory party AZ. If a case or controversy were brought that might impact the rights and obligations of signatory party AZ and no consent to the jurisdiction and decision was formally and expressly given by AZ, then the case is at an end. The tribunal, judge, or arbiter cannot compel signatory party AZ to participate in the proceedings. In addition, any decision made would not be binding upon signatory party AZ.
In U.S. jurisprudence, the tribunal would “lack subject matter jurisdiction” if the party cannot be served and compelled to appear, and would not be subject to the decision of the tribunal if that party had not given their express consent.
See: Georges v. United Nation, Case No. 13-CV-7146 (JPO), USDC-SDNY, Opinion and Order, January 9, 2015..
Invite as much or as many as someone might like. Send bundles of invitations to every office and to everyone, including the building maintenance personnel. The signatory party is immune without their formal and express consent.
The fundamental rules, principles and maxims are very well established.
Best of luck in the endeavor. We shall see how it turns out.
Aloha Kealii Makekau, only the AHKG and Larsen will be bound to the commissions findings if they agree. Therefor U.S. consent is not needed because the U.S is not a party in these proceeding and not bound by it’s findings. The rules clearly state this so I don’t see what the fuss is all about.
imho the US government may have chosen not to send a representative to sit in on the aforementioned International Court of Justice (ICJ), commonly referred to as the “World Court at The Hague”, proceedings because to do so might signal to the international diplomatic community its tacit acknowledgement that the potential recognition by the ICJ of the Kingdom of Hawai’i as a nation state for the purposes of the proceeding may have merit.
what’s perhaps even more telling is the fact that the US government did not object out of hand the ICJ’s interest in determining the geopolitical status of Hawai’i as the nation state of the Kingdom of Hawai’i.
one imagines that if California, Texas, New York or some other US state were involved in a similar situation the US government would quickly and unequivocally assert that the state in question was its subject state one of the members of the federation of independent states commonly referred to as the United States of America (US).
the US government very deliberately declined to make any such assertion or objection in this case leading one to wonder out loud… “why ?”
this quandary is reminiscent of the March 2015 incident in which the then Chairman of the Board of the Office of Hawaiian Affairs (OHA), Kamana’opono Crabbe, sent a letter, as the Chairman of OHA, to then US Secretary of State John Kerry asking, him in the simplest terms, if the Kingdom of Hawai’i still existed.
Secretary Kerry’s response to Chairman Crabbe’s query was no response. in fact no one at the US State Department even so much as acknowledged receiving Chairman Crabbe’s letter.
Instead the Obama administration’s response was to inexplicably push forward an apparently hastily put together round of hearings seeking public testimony on the Department of Interior’s (DOI) proposed rule change which would allow US Federal recognition of the Hawaiian people as a “North American tribe”, a widely ridiculed as “ludicrous” formal recognition by the US Federal government which would ostensibly set the stage for the US government to negotiate a “nation-to-nation” treaty with ready-and-willing Hawaiian collaborators, self-appointed representatives of the Hawaiian people, who could negotiate a “nation-within-a-nation” treaty that would enable the US DOI direct control of the Hawaiian people under its Bureau of Indian Affairs thereby effectively blocking the ongoing efforts of aloha aina Hawaiian patriots to restore the Kingdom of Hawai’i government and Hawai’i’s sovereign nation status.
the ICJ’s potential recognition of Hawai’i as the sovereign nation state of the Kingdom of Hawai’i would unequivocally herald to the world that the “the Kingdom of Hawai’i DOES Exist !”
Aloha Ponokeal’i, silence is all they got. Anything they say can and will be used against them so they will never speak. It’s not up to them anyway. We are the ones that suppose to be doing all the talking with evidence, facts and the truth in proceedings such as the commission of inquiry. MHO
So not a “dispute” anymore, now a “situation”. I need to wrap my mind around these two terms. In the dispute, the 3rd part was indispensable; in the situation, 3rd party is not necessary, as it is “fact finding.” But does it lead to more than just finding what HK is liable for? Does it lead also to finding what “war crimes” have been committed? And then is there a process that sets in thereafter? Are these issues to be considered/covered on Monday night?
Aloha Noelani, in “fact finding” the indispensable third party rule does not apply. The proceedings does not require U.S. participation. The ruling directly affects only the parties involved. If you read the special agreement btwn AHKG and Larsen, their coming from a position that it is a fact the HK is occupied and it is a fact war crimes are happening in the HK. The Tribunal can make clear to the AHKG their responsibilities, duties, etc. to the state and citizens during occupation. They can also make recommendations for dealing with these issues. A positive note for these proceedings are that the Tribunal is not limited to the evidence provided only in the initial arbitration. The AHKG and Larsen can provide more evidence, experts and documentation of actions taken by the AHKG in dealing with the occupation and war crimes. MHO
“The Tribunal can make clear to the AHKG their responsibilities, duties, etc. to the State and citizens during occupation.” – this is what I need to wrap my mind around.
(I did read the Agreement, but legal speak is not always simple to understand for those without law degrees, today.)
Aloha Noelani, I think reading Article 1 would help you see the difference between a dispute for arbitration and a “situation” for fact finding.
PERMANENT COURT OF ARBITRATION OPTIONAL RULES FOR FACT-FINDING COMMISSIONS OF INQUIRY
Effective December 15, 1997
Application of the Rules
1. These Rules shall apply when the parties have agreed to have recourse to a Fact finding Commission of Inquiry (‘Commission’) pursuant to the Permanent Court of Arbitration (‘PCA’) Optional Rules for Fact-finding Commissions of Inquiry, to establish, by means of an impartial and independent investigation, facts with respect to which there is a difference of opinion between them.
2. The parties may agree to exclude or vary any of these Rules at any time.
please put me in touch with the principals representing the Kingdom of Hawai’i. I’d like to discuss with them my willingness to assist in the funding of the “fact finding” phase. mahalo
ali’i aloha aina
Aloha Ponokeali’i, I guess the easiest way would be to click on “notified” in the above article and send an email.