Experts validate legitimacy of international law case

David Keanu Sai has an article in this month's issue of OHA's Ka Wai Ola o OHA newsletter (PDF), talking about the Larsen v. Hawaiian Kingdom case at the Permanent Court of Arbitration in 2000, in response to OHA's panel in June pushing the Akaka bill. During the panel discussion, Melody McKenzie, as reported by the Advertiser, said that the case for Hawai'i's international independence was thwarted in the challenge at the Hague by the refusal of the United States to take part. Sai cites an article on the case in the 2001 American Journal of International Law, which he says underscores the legitimacy of the case, and says "the acting Council of Regency, who presently represents Larsen by agreement, is preparing to file a complaint, at a time of its own choosing, with the International Court of Justice in The Hague, so the United States can be engaged outside the limitations of arbitration. The Larsen case represents a stepping stone back into international relations, and, most importantly, a monumental step taken by a country whose international legal sovereignty was never extinguished."

Read Sai's article here. Download the entire OHA newsletter in PDF format here.

Ka Wai Ola o OHA
August 2004

Experts validate legitimacy of international law case

By David Keanu Sai

Editor's note: David Keanu Sai served as lead agent for the acting Council of Regency in the Larsen case, and is presently a Ph.D. candidate in political science at UH Manoa, specializing in international relations. The views expressed in this community discussion column are those of the author and do not necessarily reflect the views of the Office of Hawaiian Affairs.

The 2000 Larsen case (Lance Larsen v. the Hawaiian Kingdom) held at the Permanent Court of Arbitration (PCA) in The Hague represents a genuine anomaly given today's assumption that Hawaiians lost their sovereignty and cannot access international proceedings. There are few people in the islands that can articulate, let alone adequately explain, the mechanics of this case. I don't know if it's because they really don't understand it or they really don't care to understand it.

Case in point: on OHA's call-in program Akaka Bill: Myth or Reality? that aired on KITV on June 21, a viewer posed a question to the panel on whether the Larsen case had any legal effect. One of the panelists, Melody MacKenzie, answered in the negative and stated that the case was dismissed implying it was futile. But if any opinion were to be solicited, wouldn't it be prudent that it come from experts in the field of international law and international proceedings? It was evident that OHA's three panelists were not these experts, but rather their expertise centered on U.S. municipal laws and relationships between Native Americans and the federal government.

What many people don't know is that a qualified and independent opinion already exists regarding the Larsen case, published in the 2001 American Journal of International Law. The journal provides commentaries on international decisions by leading experts. One of the authors of the Larsen case commentary, David J. Bederman, is a professor at Emory Law School. He served on the journal s Board of Editors, and teaches public international law, torts and international institutions. Professor Bederman was also a legal assistant at the U.S.-Iran Claims Tribunal held at The Hague.

The Larsen case was not part of the Hawaiian sovereignty movement. It was a legal proceeding based upon sovereignty already achieved since the 19th century especially when the United States was the first country to recognize the Hawaiian Kingdom as an independent nation-state on Dec. 19, 1842. The commentary correctly explained that 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 Hawai'i. 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.

The commentary adequately described the mechanics of the case, and after providing critical comments on strictly procedural matters, the authors admitted that the Larsen case was indeed legitimate. They stated, because international tribunals lack the power of joinder that national courts enjoy, it is possible as a result of procedural maneuvering alone for legitimate international legal disputes to escape just adjudication. For example, in Larsen, the United States commanded an enviable litigation posture: even though the United States admitted its illegal overthrow of the Hawaiian Kingdom, it repeatedly refused to consent to international arbitration.

Consequently, the acting Council of Regency, who presently represents Larsen by agreement, is preparing to file a complaint, at a time of its own choosing, with the International Court of Justice in The Hague, so the United States can be engaged outside the limitations of arbitration. The Larsen case represents a stepping stone back into international relations, and, most importantly, a monumental step taken by a country whose international legal sovereignty was never extinguished. For more information regarding the Larsen case, visit online at www.HawaiianKingdom.org.

Posted: Thu - August 12, 2004 at 05:00 PM

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Experts validate legitimacy of international law case

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