Talk:Legal status of Hawaii/Archive 5

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Jere:I took this part out because 1) I believe this has been authoritatively dismissed by a number of legal bodies, and 2) the whole point of the sovereignty movement is the denial of any final authority. No sovereignty activist has ever, to my knowledge, indicated a court or deliberative body, national or international, to whom they would accept a negative decision from. Not sure who said it, but something along the lines of, "no causes are truly lost, because no causes are truly won". --JereKrischel 09:46, 4 June 2006 (UTC)

"with finality"

Jere:I think you did a good job catching my use of the weasel word "although" - making it two sentences helps make it more NPOV. However, the matter has been settled with finality by international and U.S. national legal bodies on several occasions - although again, not to the satisfaction of activists.

1) The Morgan Report, February 26, 1894, followed by the Turpie Resolution of May 31, 1894, established by congressional investigation and findings of fact (as opposed to the Apology Resolution "whereas" clauses), the lack of involvement of the U.S. in the Hawaiian Revolution, and the legitimacy of the Provisional Government;

2) In a 1903 criminal case, Territory of Hawaii v. Mankichi, 190 U.S. 197 (1903) the U.S. Supreme Court noted that "the status of the islands and the powers of their provisional government were measured by the Newlands resolution[.]" That point was made even more forcefully in a separate opinion in the case filed by by Justice Harlan. Justice Harlan disagreed with the court on a different issue which concerned Hawaiian law as to jury trials, but on the issue of the validity of the Newlands resolution, he agreed fully with the majority, stating, "By the resolution, the annexation of the Hawaiian Islands became complete, and the object of the proposed treaty, that 'those islands should be incorporated into the United States as an integral part thereof, and under its sovereignty' was accomplished.";

3) In 1910, Liliuokalani's personal claims to the crown lands were decided invalid, citing Hawaiian Kingdom law and jurisprudence;

4) Both the Provisional Government and Republic of Hawaii were internationally recognized as the legitimate government of Hawaii by every nation that had any diplomatic relationship with the Hawaiian Kingdom (since there was no "international legal body" in 1893/1894, this serves as a stand-in);

5) In 1959, following the Statehood vote and Statehood, the United Nations removed Hawaii from the list of non-self-governing territories.

This does get into another troubling area, of course - 1893 was before the League of Nations and before the United Nations existed, so even defining an international legal body with jurisdiction over the actions of that year is problematic - certainly, the U.N. couldn't re-adjudicate the American Civil War, or Kamehameha's conquest of the Islands, but in some ways that is what is being asked for by some sovereignty activists.

My question is this, and I think if you answer it honestly you'll see my point - what judicial body would sovereignty activists accept a final statement from? If the ICJ ruled tomorrow that Hawaii was legally a State of the United States, would it be accepted? If the Supreme Court ruled tomorow that Hawaii was legally a State of the United States, would it be accepted?

The whole reason why this debate exists is because activsts do not see any setback as final. To imply that there have been no decisions on the world-stage regarding this matter is pushing POV.

I hope that makes sense - and again, thanks for catching my "although" weasel word. Hopefully it's starting to read better --JereKrischel 19:16, 4 June 2006 (UTC)

Larsen vs. Hawaiian Kingdom

Jere:Although you may disagree that the matter has been settled, Larsen v. Hawaiian Kingdom is not a strong example for your point of view.

First of all, the matter was taken up by paid arbitrators from the Permanent Court of Arbitration. The two parties to the arbitration were Larsen, and David Sai, alleging to represent the Hawaiian Kingdom. The United States was not a party to the arbitration, nor was it a party to the original dispute, and had never agreed to address the matter in a personal arbitration between Larsen and Sai.

As a condition of arbitration, the PCA had to accept all stiupations agreed to by both parties in the arbitration. What they found was that there was no disagreement between Larsen and Sai, and that they could not arbitrate on their disagreements with the U.S., so the matter was dismissed.

See Ken Conklin's article regarding the PCA arbitration that was summarily dismissed for more details. --JereKrischel 20:33, 4 June 2006 (UTC)

The actual "award" from the arbitration panel clearly stated: in the absence of the United States of America, the Tribunal can neither decide that Hawaii is not part of the USA, nor proceed on the assumption that it is not. To take either course would be to disregard a principle which goes to heart of the arbitral function in international law. It is deceptive to assert that the U.S. v. Hawaiian Kingdom dispute (which was not in the scope of their arbitration) was favorably considered by the arbitration panel - they clearly stated that they could not even address the issue. --JereKrischel 20:55, 4 June 2006 (UTC)

Laualoha:A detailed analysis of the Larsen case is not my kuleana, although I have a much different interpretation than you & Mr. Conklin. I will leave it for others to address this in greater detail. However, you make my point: the matter has not been decided, and the case is an example of this. Laualoha 22:15, 4 June 2006 (UTC)

Jere:I think you misunderstood what I illustrated here - this case was NOT an example of the matter not being decided - it was a matter of Larsen and Sai trying to bring up the matter in an inappropriate venue. This was a case where the matter was found to be beyond the scope of the arbitration between Larsen and Sai. --JereKrischel 22:58, 4 June 2006 (UTC)

Laualoha:Letʻs get the basics straight: Sai appeared as the representative of an occupied government, and Larsen appeared as a citizen of that government, whose interests were not being represented by that government. The hard part was that Sai could not represent Larsenʻs interests due to the repression of any exercise of Hawaiian government or sovereignty by the U.S., who didnʻt come to court, so the court could not decide between Sai and Larsen (I guess they werenʻt exactly going to drag George Bush from his golf game for those traffic tickets; it could be rather unpleasant). If there was no case and/or no occupied country, the World Court would not have convened on the matter in the first place (I canʻt just make up the country of Blablabla & have the World Court decide my citizensʻ governmental disputes at the Hague!), and if the matter was "settled" as you say, there would not have been a case. Then, the WC simply said that the venue wasnʻt going to work out, because the core of the matter was that the real problem was between Hawaiʻi and the U.S., which they were not prepared to arbitrate in that case, due to the many factors involved which ultimately indicated that arbitration wasnʻt really the resolution method that would straighten out the issue of Mr. Larsenʻs traffic tickets. I donʻt exactly call that "settled".Laualoha 23:39, 4 June 2006 (UTC)

Jere:Let's get some further basics straight - Larsen sued Sai, and they both agreed to have the case dismissed into arbitration. They did not name the U.S. as a party to the suit, nor a party to the arbitration. If they had wanted to name the U.S. as a defendant, they could have.

They PAID for 3 arbitrators from the Permanent Court of Arbitration (not the International Court of Justice). They did not convene a tribunal of the World Court. The paid arbitrators, upon listening to the dispute (or lack thereof), decided that there was nothing they could arbitrate on, becuase the parties who had agreed to the arbitration AGREED on everything. Their beef was with the U.S., and they should have sued them in court instead of eachother. --JereKrischel 23:57, 4 June 2006 (UTC)

Oh, another note, there is nothing that would stop you, or me, from paying for arbitrators at the Permanent Court of Arbitration, and you or me claiming that we represented the Kingdom of Hawaii. There were no requirements that David Sai nor Larsen fulfilled in order to purchase the services of the PCA: http://www.pca-cpa.org/ENGLISH/GI/scheduleofcosts.htm. Remember, this was an arbitration service, not a judicial proceeding. --JereKrischel 00:02, 5 June 2006 (UTC)

More details - from the FAQ section of the PCA:

1. Is the PCA part of the United Nations system?

No, it is an independent intergovernmental organization with its own constituent conventions (1899 and 1907).

Of course, the real International Court of Justice at the Hague is part of the UN (from their website:

The International Court of Justice is the principal judicial organ of the United Nations. Its seat is at the Peace Palace in The Hague (Netherlands). It began work in 1946, when it replaced the Permanent Court of International Justice which had functioned in the Peace Palace since 1922. It operates under a Statute largely similar to that of its predecessor, which is an integral part of the Charter of the United Nations.'

Hope this makes things clearer regarding Larsen v. Sai. --JereKrischel 00:18, 5 June 2006 (UTC)

Oh, also a list of PCA members, which explicitly omits the Kingdom of Hawaii as a member. --JereKrischel 00:20, 5 June 2006 (UTC)