case to world body
An international courtBy Rob Perez
will hear a case involving
Hawaiian kingdom law
For most Hawaii residents, the notion is absolutely ludicrous.
To them, claiming that the Hawaiian kingdom still exists -- and that kingdom law, not U.S. law, applies here -- is about as ridiculous as saying America still is a British holding.
The courts in Hawaii have just about said as much, repeatedly rejecting the kingdom argument at the state and federal level.
Yet proponents are so convinced of their position, saying it is based on undisputed facts, not emotions, that they are taking their case to a respected international body, the Permanent Court of Arbitration in the Netherlands.
There they believe they not only will get a fairer hearing but that a favorable ruling will lend immediate credibility to arguments routinely dismissed -- even ridiculed -- in Hawaii courts.
"Every time we make that argument in federal court, they're laughing in our face," said attorney Ninia Parks, who represents clients claiming to be subjects of the kingdom.
The question of whether the kingdom still exists legally is expected to be presented early this year to an international arbitrator affiliated with the Permanent Court, which is part of the Peace Palace at The Hague.
The United States is among dozens of nations that provide financial support to the Permanent Court and endorse its system for resolving disputes.
But even if an arbitrator agrees with kingdom advocates, a ruling would provide no legal precedent beyond the specific case brought before the Permanent Court, according to Phyllis Hamilton, deputy secretary general to the court.
A way to spread awarenessStill, kingdom proponents see the process itself as a way to spread international awareness of issues so easily discounted in Hawaii.
"There's no miracle that's going to happen as a result of this arbitration. Everything is a step in this long journey, this education process," said attorney Gary Dubin, a former Harvard law school fellow who is listed in documents filed with the Permanent Court as attorney general for the kingdom.
The arbitration stems from a federal lawsuit a Big Island man filed last year against the United States and the kingdom.
Lance P. Larsen accused both defendants of violating their 1849 treaty by allowing U.S. law to be imposed in Hawaii. He filed the lawsuit after having served jail time on the Big Island for driving without a state license and without state plates on his pickup, offenses under Hawaii state statutes. The truck displayed a plate citing kingdom law.
Larsen, who is represented by Parks, eventually dismissed the United States from the lawsuit and reached a settlement Oct. 29 with those claiming to represent the kingdom. The settlement, subsequently approved by federal Judge Samuel King, resulted in dismissal of the lawsuit and stipulated that Larsen and the kingdom submit the case to the Permanent Court for binding arbitration.
Any ruling would be binding only on the two parties, Hamilton said.
As long as a dispute has an international dimension and both parties -- even non-nations -- agree to seek the help of the Permanent Court, assistance is available, according to Hamilton.
The court doesn't do research to determine the legal standing of either side, she said. But abuse of the process has not been a problem, partly because of the resources required to pursue a case, Hamilton said.
The two parties, for instance, pay for the arbitrator's time and expenses, which can be considerable depending on who is appointed and how involved the arbitration gets.
In the Larsen case, overall costs are expected to be in the tens of thousands of dollars, in part to cover at least one hearing at The Hague. Finances won't be a stumbling block, those involved with the case say.
Larsen is asking an arbitrator -- who has yet to be appointed -- to verify the existence of the kingdom and to verify that the kingdom continues to violate the 1849 treaty.
The Big Island resident told the court he is facing more jail time and thousands of dollars in fines stemming from his traffic infractions under U.S. municipal law. He wants what he calls the illegal imposition of such law halted in the islands -- something the arbitrator would not be empowered to do.
Technically, any arbitration finding would have no bearing on the U.S. government or the state of Hawaii because neither are parties to the case.
The case is called beneficialNonetheless, a reasoned, independent study of the relationship between the Hawaiian nation and its treaties will be beneficial and historic, especially if done by someone with considerable stature in the international law community, Dubin said.
"There's no intention here of starting a revolution with guns," he said. "The weapon is knowledge."
The Permanent Court will consult with potential arbitrators and recommend a number of them to the two parties, Hamilton said. An appointing authority designated by the two sides will select an arbitration panel, which in this case will be one person. A selection is expected to be made soon.
Normally, arbitrations through the Permanent Court are confidential. But Hamilton said both sides gave her permission to speak to the press -- underscoring how eager kingdom proponents are to publicize their cause, especially outside Hawaii.
Issues generate coverageAlready, some of the issues raised in the Larsen case have received coverage elsewhere. The London-based Monarchy magazine ran an article in September saying the 1864 treaty between Switzerland and the Hawaiian kingdom still was in effect. That triggered an article in October in the Geneva Times, a general-circulation newspaper in Switzerland.
In his filing with the Permanent Court, Larsen cites many of the same arguments he used in his unsuccessful attempt to get his traffic offenses thrown out of Hawaii court.
Among other things, Larsen mentions the illegal overthrow of the Hawaiian monarchy in 1893 and the fact that the kingdom never transferred its sovereignty over the islands to the United States. He also cites a 1988 legal opinion by the U.S. Justice Department that questioned the authority under which Congress annexed Hawaii in 1898.
For the most part, those arguments have fallen on unsympathetic ears in local courts.
Last month a Circuit Court jury rejected the kingdom argument in convicting David Keanu Sai of attempted theft for helping a couple try to retake an Aiea home they lost through foreclosure.
Sai, who faces a prison term of up to 10 years when he is sentenced in March, was co-founder of Perfect Title Co., the now-defunct firm that did controversial land title searches based on kingdom law.
Sai describes himself as the kingdom's minister of interior and is working with Parks, Dubin and others on the Larsen case.
If an arbitrator verifies the existence of the kingdom, that will be significant because the issue would have been evaluated for the first time using international law, not U.S. law, Sai said.
"I guarantee you, that will carry weight internationally," he said.
Law professor disagreesBut Jon Van Dyke, a University of Hawaii law professor with expertise in international law, disagreed.
Because both sides to the arbitration are taking the same position -- that the kingdom still exists -- any favorable ruling "probably won't be taken too seriously," Van Dyke said. "It sounds like you've got sort of a cooked-up situation here."
The issue of what to do about the illegal overthrow of the kingdom is important and must be resolved, Van Dyke said, but arguing that the kingdom still exists is problematic, he said.
"The biggest problem is simply the passage of time and the fact that the U.S. has exercised sovereignty (over Hawaii) for more than 100 years," he said. That alone is enough to derail the kingdom argument, he said.
Yet another factor is that the people of Hawaii, including native Hawaiians, overwhelmingly voted in favor of statehood in 1959, Van Dyke said.
Dwight Nadamoto, the state deputy attorney general who prosecuted Sai on the attempted theft charge, cited one more factor.
"I just use the common-sense approach," Nadamoto said. "There is no kingdom of Hawaii, and everyone knows that."