Ka Wai Ola - Office of Hawaiian Affairs, Volume 21, Number 8, 1 August 2004 — Experts validate legitimacy of international law case [ARTICLE+ILLUSTRATION]

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. eandidate in political science at UH Mānoa, specializing in international relations. The views expressed in this community discussion eolumn are those of the author and do not necessarily reflect the views of the Office of Hawaiian Affairs.

The 2000 Larsen case ( Lanee 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 sovereisntv and

cannot access international

proceedings. There are few people in the islands that ean 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 eall-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 eome 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. munieipal 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 puhlie international law, torts and international institutions. Professor Bederman was also a legal assistant at the U.S.-Iran See LARSEN on page 5

Sai at the PCA

LARSEN from page 4 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] munieipal laws' through its politieal 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 laek 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 cicting 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 ean 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 informotion regarding the Larsen ccise, visit online cit www. Howa i ionKi n gd.om.org. ■